Law Times

Law times • OctOber 26, 2009 Engineers look to match lawyers' political prowess t the risk of involv- ing that quote from William Shakespeare about killing all the lawyers, Ontario's engineers have fine designs on knocking off a few members of the le- gal profession — politically speaking, of course. The way Professional En- gineers Ontario sees it, when it comes to politics, lawyers have had the field to themselves for far too long, and it's time to challenge the status quo. Frankly, the engineers don't think their professional cousins have done a very good job at running things, which is exactly why they've got some big plans to run for office. It's not that engineers want to A take over the world, says Kim Al- len, CEO and registrar of PEO. It's just that there are many gov- ernment decisions at all levels that affect the profession and, as a result, it would perhaps be bet- ter to have engineers involved in the process rather than reacting after the fact. And with a shift of party for- tunes in the wind, they're gearing up to put those plans in motion by holding candidate college ses- sions and mobilizing their mem- bership with a view to getting more iron rings in seats at least at the provincial level. Allen says the sessions are a primer on the political process and the many ways engineers can get involved, starting with something as simple as knock- ing on doors or otherwise help- ing with campaigns. "It started in 2006 when we sued the Ontario government over changes to the building code," says Allen. "We realized we needed to be closer to the genesis of formulating policy. Most MPPs or MPs tend to be lawyers or teachers here in Canada, and we thought there should be someone there who has a technical perspective be- fore it gets considered too late in the process." PEO won an Ontario Su- perior Court decision in May 2007 that held that changes to the building code requiring en- gineers to qualify and register with the Ministry of Munici- pal Affairs and Housing before they could submit or review plans weren't valid. The court accepted PEO's position that the Building Code Act didn't authorize such an arrangement and further that the Profession- al Engineers Act was the over- riding authority. Since then, PEO has em- barked on a campaign both within and beyond its ranks to raise the profile of politics among its members and of its own organization with politi- cians at the municipal, provin- cial, and federal levels. Last month, PEO held third annual Engineering its for Ontario Day reception at Queen's Park's legislative dining Inside Queen's Park By Ian Harvey room. About 100 engineers turned out to meet and greet their local MPPs and govern- ment ministers. Allen says it's important for engineers to know who their representatives are and to take an interest in local politics even if they don't end up running or even working on a campaign. The goal for PEO is to have 11 by 11 — that is 11 engineers in the 2011 legislature. Cur- rently there are two, Conserva- tive MPP Norm Sterling and Liberal MPP Phil McNeely, both from the Ottawa area. Federally, there are eight MPs who are engineers. Lawyers and teachers seem to naturally gravitate to politics, Allen says. "With law profes- sionals, it's an extension of deal- ing with legislation and the ef- fect of politics on law. However, other countries have a much higher proportion of engineers in public office, especially, for example, China where engi- neers make up 39 per cent of public officials." While lawyers in Canada seem to revel in the theatre of the court and, by extension, politics, engineers tend to be backroom workers intent on process and design. Still, Allen says no engineer should be under the delusion that they'll scoop a nomination just by walking in the door. "They've got to do work with- in the party and the riding, and that could be knocking on doors, helping manage a campaign," he says. Part of the candidate col- lege program involves getting engineers to understand the pro- cess, where the points of entry are, and how they can move up within the party structure. "They have to get used to rais- ing money, and that means go- ing out and networking and ask- ing people to donate," he says. The sheer numbers of PEO's membership means it's ground, he adds. "We have COMMENT Introduce mandatory mediation to Small Claims Court I BY JORDAN FARKAS For Law Times n January 2010, the jurisdictional limit in Small Claims Court is rising to $25,000 from $10,000. Surprisingly, there seems to be a backlash in the legal community. Some argue that $25,000 is no small potatoes and that a self- represented individual stands to lose a lot more than just a "small" claim. Others complain that the increased casel- oad will lead to more backlog in small-claims cases and thereby result in litigants waiting longer for trials. Despite these concerns, litigants will benefit from the rise in jurisdic- tion. As well, a solution to alleviate the potential increased backlog — mandatory mediation — could address law- yers' concerns. I agree that a $25,000 claim is not small potatoes to the average Cana- dian, but neither is $10,000. If a self-represent- ed litigant stands to lose far more in a small- claims trial with the increased jurisdiction, then that suggests one thing: get legal help. Time and again, I have seen or personally faced off against self-represented litigants who have completely botched their case and turned winning lawsuits into losers. It never ceases to amaze me that the same individuals who will do a week's research prior to buying a used ve- hicle for $5,000 will waive their right to legal advice, take five minutes to fill out a form, and start their court action with $10,000 at stake. The fact of the matter is that even with the limit at $10,000, litigants ought to be obtaining professional advice. Therefore, those self-represented parties who do take $25,000 cases to trial without legal help only have themselves to blame for not investing in legal assistance. In my opinion, litigants will soon realize this so that the concept of self-represented individuals on a $25,000 or even $10,000 matter will be a rarity. It's important to note that the Small fertile 72,000 mem- bers. Even if we get a fraction of them involved, that's a lot," says Allen, noting engineering students are passionate about politics but tend to drift off once they graduate and start working. "We need to keep that type of enthusiasm for social justice in balance with moving along in their careers." LT Ian Harvey has been a journal- ist for 32 years writing about a diverse range of issues including legal and political affairs. His e-mail address is ianharvey@ rogers.com. www.lawtimesnews.com Claims Court is the most streamlined court in Ontario. The parties exchange pleadings, have a settlement conference, and then trial. In the next level of court, although the mat- ter is under simplified procedure, there are still additional steps such as an affidavit of documents, preparation of materials for and attendance at mediation, preparation of doc- uments for and attendance at pretrial, and various other procedures prior to trial. Simplified procedure cases taken all the way to trial can run parties into the tens of thousands of dollars and still take an estimat- ed average of a year to two years to complete. Accordingly, when faced with a decision on whether to litigate in higher court or fight in small claims, virtually every litigant will choose the Small Claims Court. Take the following example. It is before the rise in the claims cap, and John needs to sue Frank for $20,000 in unpaid invoices. In order to sue in Small Claims Court, he has to waive any amounts over the cap of $10,000. Alternatively, John can go to high- er court to sue, but because of all the steps in Speaker's Corner litigating, his lawyer estimates fees of $20,000 and one to two years to get to trial. Doing the math, John understands that even if he wins in higher court and even if he recovers some of his costs, he will still likely wind up with less than $10,000. As well, John can get a quicker decision in small claims with the average wait for a trial approximately six months to a year. The no-brainer decision for John is to go to Small Claims Court. But now, with the limit increased, he can sue in the Small Claims Court for the full amounts owing, and even if it costs him $5,000 to liti- gate, he is still ahead by winning $15,000 in court. Moreover, even with an increased back- log, John is still no more behind by going to Small Claims Court than if he had waited the average of one to two years under the simpli- fied procedure. Nevertheless, even with the increased back- log in cases getting to trial, I know just what to do: introduce mandatory mediation to Small Claims Court. Of course, one may argue that we already have settlement conferences for that reason. But that's not exactly the case. I believe deputy judges would agree that, as it is, there is hardly enough time to fully mediate a case during a settlement conference and, with the increased workload, it won't get any easier. So why not model a small-claims case after a simplified procedure with respect to media- tion? After exchange of the pleadings, parties should be required to mediate a dispute with an agreed mediator — roster or otherwise — within three months and then report back to the court. Given that the mediator's fees are shared equally by the parties, they wouldn't represent too high an increase in legal costs. In any event, given the success of mandatory me- diation, almost all litigants would welcome the fee in exchange for settling on an amount they can live with rather than risking it all at trial. If the matter is still not resolved, then have the deputy judge facilitate a settlement conference in something like a higher court pretrial or just scrap that step altogether so as to free up more trial dates. (Personally, I fa- vour keeping settlement conferences so that a litigant sees what it's like to face an actual judge. That may resolve even the cases that slip out of mediation unresolved.) Despite all the intellectual debates, the Small Claims Court is meant to be a people's court, and anyone asking the litigants them- selves would be informed that the rise in the claims cap is a welcome relief. It's true that this may mean that litigants must spend some money on legal advice and wait a little longer in court, but in my view such monies spent should be viewed as an investment. With re- spect to the backlog, that will cease to be an issue if and when mandatory mediation is in- troduced to the Small Claims Court. LT Jordan Farkas is founder and lead lawyer of www.MrSmallClaimsCourt.ca. He also acts as an outsourced litigation consultant to law- yers and self-represented parties on higher-court matters. He can be reached at 647-727-4686 or jfarkas@jordanfarkas.com. PAGE 7

• Cover
• Secrets Of Success
• Impaired Driving Laws
• Focus On Trusts & Estate Laws