Law Times

Law Times • January 11, 2010 "Sorry seems to be the hardest word." It's not clear how much it cost A Premier Dalton McGuinty's government to settle with the Brown family of Caledonia, but I'm guessing it's less than the $7.5 million in damages they were seeking for stress caused by the province's actions during the native land dispute these past four years. The Dec. 31 announcement of a settlement brought the trial to an end, but it was neverthe- less a busy holiday season for government lawyers who were also working late drafting an- other fiscal apology for fired On- tario Lottery and Gaming Corp. CEO Kelly McDougald, herself a member of the bar. You may recall that last sum- mer, McDougald was fired with- out severance when spending anomalies at the OLG made headlines. The highly predictable claim for $8.4 million followed shortly after because it was clear the government was making her pay the price for the whole af- fair even though there wasn't a shred of evidence to suggest she had done wrong. She'll collect $750,000 or so, a more modest sum but a victory nonetheless. The Browns, you may know, were prisoners in their home at the Douglas Creek Estates hous- ing development that aboriginal protesters occupied in 2006. They were harassed, threatened, and abused while the Ontario Provincial Police stood by, appar- ently under orders not to antago- nize the demonstrators. Initial testimony in the case in December was damning. Now, we learn of a last-minute deal that will see the government buy out the house involved in the land dispute and finally allow the Browns to move on, figuratively and literally. Their lawyers John Evans and Michael Bordin were doing a masterful job of laying out their claim before Justice Thomas Biel- by of the Ontario Superior Court in Hamilton. I suspect enough damaging testimony had emerged for sensible heads to prevail. This in turn has brought some interest from John Findlay of Findlay McCarthy LLP, who has brought a class-action suit against the government for almost iden- tical issues, the primary one be- ing an alleged failure to provide policing services. He's waiting for a ruling from Justice David Crane following arguments on Nov. 19 and sus- pects the government will make a decision then on whether to press forward in defending the action or seek alternative arrangements. "Certainly, the facts read into the court and the evidence and discoveries [in the Brown case] are interesting," says Findlay. "But no one is calling me to talk about settlement." Of course, what was more A meeker Ontario government lurches forward into 2010 Inside s Sir Elton John once observed in lyrics draft- ed by Bernie Taupin, Queen's Park By Ian Harvey curious was the timing. Was it a rush to settle the books by the end of the year on these mat- ters? Or was the move cynically timed to keep it out of the head- lines during a period in which the media is short-staffed with vacations? There have already been some comments suggest- ing the latter. Still, the deed is done, and what's more interest- ing is the continuing alignment of this government as it seeks to revamp its image. I suspect we're moving into a period of necessitated nice- ness that may also bode well for Findlay's class action and other disputes. This government needs to win gold stars because it has some unpalatable tasks looming ahead. For one, there's the spring budget. Much of what it contains will depend on developments at the federal level. Prime Minister Stephen Harper's government, of course, has already telegraphed a strategy of tight-fisted fiscal policies to right the deficit. The province, meanwhile, has pre- cious little space to maneuver, especially given its recent tax cuts introduced to offset the impact of the harmonized sales tax. The second ugly task ahead is indeed the HST. Expect a lot of consumer grumbling come July that threatens to continue in 2011. Add in the threat by native groups to protest the loss of their cosy tax-free status, and it could be another mess. Then there's the question of asset disposals, an issue that sur- faced before the holidays. Des- perate for cash to quash the defi- cit, Ontario has asked an expert panel to look at selling off the LCBO, OLG, and Hydro One. The mere suggestion of a sale triggered vituperative outbursts from public sector unions, groups that are still waiting for the impo- sition of unpaid Dalton Days in a throwback to the Rae Days of former NDP premier Bob Rae's regime. All of this means it's not a good time to have government policies and testimony over exactly what happened in Caledonia aired in a public courtroom. Meek and mild seems to be the order of the day at Queen's Park as we move into 2010. So be prepared for lots of spin and motherhood-and-apple-pie an- nouncements as the government gears up for the really tough slog- ging ahead. LT Ian Harvey has been a journalist for 32 years writing about a diverse range of issues including legal and political affairs. His e-mail address is ianharvey@rogers.com. I COMMENT The high price of self-representation BY JORDAN FARKAS For Law Times n a recent article published in Law Times, I impressed upon the importance of seeking legal advice even in the Small Claims Court. I stressed that self-represent- ed parties were prone to making irreversible legal and strategic mistakes that could prove to be costly to their case. The online responses from readers were fast and, in one case, furious. One com- mentator, for example, said he was "disgusted" by my "self-serving agenda." After all, he wrote, "Small Claims Court has always been the last refuge of the common man." Johnny, meanwhile, argued that "Small Claims Court has always promoted itself as a place that you can self-represent. If liti- gants believe they don't have to hire some- one, they probably won't." Overall, the shared sentiment by readers was that it is lawyers who are responsible for the legal system's failures and that the idea of the Small Claims Court is to allow people to litigate on their own if they feel like it. But my argument wasn't about whether or not the Small Claims Court represents the ideals of the justice system. Nor did I advocate requiring a litigant to retain a law- yer. Rather, my position was simply that obtaining legal advice is the most practical thing to do. A recent decision of the Superior Court illustrates the high price of mistaking ide- als for practicalities when it comes to Small Claims Court litigation. In 2005, Timothy and Barbara Farlow suffered the loss of a child with a genetic abnormality at the Hos- pital for Sick Children. They subsequently sued SickKids and two doctors in the Small Letter to the Editor LSUC ON WOMEN AND LEGAL AID Your Dec. 14 article entitled "LSUC votes to end life terms" leaves the impression that Convocation has done little to support women in the legal profession and has been silent on the legal aid question. Neither impression, conveyed in comments from a Law Society of Upper Canada bencher, is accurate. A task force appointed by Convocation spent three years studying the issues confront- ing women in private practice. More than 900 lawyers across the province participated in open discussions and consul- tations. The task force then issued nine recommendations designed to improve the re- tention of women in the pri- vate practice of law. This was a high-profile undertaking that raised awareness of the needs of women in the legal profes- sion and became a catalyst for change. Convocation accepted the recommendations of the task force and gave their imple- www.lawtimesnews.com mentation a high priority. The support for women provided for in these recommendations includes an online resource centre, a new parental-leave assistance program for wom- en in private practice who have no access to other ben- efit plans, and a think-tank named Justicia to foster inter- nal cultures in medium and large law firms that are more supportive to the advance- ment of women in their legal careers. More than 50 such firms have signed up for the Justicia program, which has caught the attention of law- yers and law firms right across the country. On the issue of legal aid, the LSUC has a keen inter- est in the effective provision of legal aid services, including the key question of adequate funding for the system. Soon after Legal Aid Ontario was es- tablished, the law society par- ticipated in the creation of the Coalition for Legal Aid Tariff Reform to encourage more funding. This coalition of legal aid service providers has since developed into the Alliance for Sustainable Legal Aid. The alliance undertakes considerable work on issues affecting the operation of the legal aid system, meets regu- larly with the attorney general and his staff, and submits let- ters and briefs to the ministry. Since most of the member organizations are represented by practising legal aid lawyers under heavy time constraints, the law society has contrib- uted staff time, services, and meeting space to the alliance in addition to participation by benchers. There is still much work to be done in support of women in the legal profes- sion and equally in achiev- ing an effective and sustain- able legal aid system. The members of Convocation look forward to continu- ing to work with other key stakeholders in furthering both of these initiatives. W.A. Derry Millar, Treasurer, Law Society of Upper Canada Claims Court. The Farlows opted for the Small Claims Speaker's Corner Court because of its "openness and simplic- ity" and because "imperfect justice is bet- ter than no justice at all." They could have sought legal advice but instead chose to rep- resent themselves. Unfortunately for the Farlows, their case suffered a major blow after Justice Thea Herman ruled it must be elevated to the higher court. The consequences are, of course, devastat- ing for the Farlows, who will now have to go through the time, stress, and financial strain of litigating the case if they choose to proceed. In fact, it's quite possible they'll simply give up altogether. Would the outcome have been different if they had sought legal advice or represen- tation? The Farlows themselves seemed to think so. In fact, Barbara admitted after the ruling that the couple had chosen a poor course of action against a strong opponent, according to media reports. What makes the hospital strong? Well, we would have to ask Barbara, but I would say it's because it had representation by legal professionals. Does this mean it's fair that they may have lost because of this? Of course not, and one would be foolish to suggest the jus- tice system is perfect or always fair. But the case illustrates the point that fairness is one thing, but being practical about the system we find ourselves in is another. LT Jordan Farkas is founder and lead lawyer of MrSmallClaimsCourt.ca. He also acts as an outsourced litigation consultant to lawyers and self-represented parties on higher-court mat- ters. He can be reached at 647-727-4686 or jfarkas@jordanfarkas.com. PAGE 7

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