Law Times

lAw Times • April 16, 2012 mean Kenney hates lawyers, at least not all the time. Kenney was speaking to the heads of I Everybody likes lawyer jokes. It doesn't national associations of professional regu- latory bodies at the Minto Suite Hotel in Ottawa. He told his audience the wrong peo- ple are coming to Canada. He wants more skilled tradespeople. He didn't say they'll be trying to bring their relatives as well. But that' what happens. People like to live in families. A lot of immigration lawyers are worked fication and closing our doors to refugees. There could be some justification for s forgetting about family reuni- up over his recent changes to the system. They think he' those worries. Kenney didn't mention fami- lies or say anything about the considerable skills refugees bring. Who knows why? That may be for another speech. Kenney says the shortages in skilled trades are so bad that employers are cry- ing out Saskatchewan, they were telling me it's not for help. "Back in southern just about unskilled farm labourers. The skill shortages are right across the spectrum from mechanics to heavy equipment opera- tors to geologists, to engineers to lawyers mmigration Minister Jason Kenney cracked a cornball lawyer joke the other day to make a point about the shortage of skilled trades in Canada. What's Kenney's beef with lawyers? The Hill COMMENT if you can believe it — the first time I've ever thought of the idea of a shortage of lawyers. Most people would probably say that' a good problem." Kenney then brought up a anecdote. s surprising s it or not, I met a law firm in Weyburn, Saskatchewan, that had brought in South African lawyers as temporary foreign workers to help them carry the work burden that they have. Nimegeers Schuck Wormsbecker & Bobbitt. (They shortened the name to NSWB Law.) Office administrator Bonnie Olvera says There is, in fact, such a firm in Saskatchewan: " that after exhausting every advertisement, appeal, and word-of-mouth effort possible in Western Canada, they got a reply from a lawyer in South Africa who had seen their Internet ad. They hired him and he has turned out just fine. There was a problem initially, how- ever. Citizenship and Immigration Canada refused to let him in. So he got to Weyburn through a provincial program, says Olvera. The firm's partners were pleased "after sending out years to law schools in the three western provinces," Olvera notes. There really is a shortage of lawyers in brochures for Address civility through clear rules BY SABA AHMAD For Law Times A in uncivil conduct when it confers an advantage and entails no nega- tive consequences. Professional organizations can- ppeals to professionalism do little to achieve the ideals of civility in litigation as zealous advocacy and human nature lead counsel to engage clear guidance, the lawyer off ered to be fl exible by of- fering a choice of examination in New York or Ontario with many possible dates and no attendance money. Rule 34.07 permitted the defendant to raise a va- riety of issues and potentially compel a motion. In the meantime, it was in the defendant' s interest to u SPEAKER'S CORNER not address the broad, societal causes of incivility. Th e profession can, however, recognize that litigation is in- herently susceptible to incivility and strive to provide clear procedural rules that discourage confl ict and sharp practice and save lawyers from relying on co- operation in situations where reciprocity is unlikely. A couple of examples illustrate how unclear pro- delay the matter and increase the costs of litigation for the plaintiff . With no low-cost way to force an examination and the defendant's ability to compel a motion, the spirit of co-operation was of little assistance to plaintiff ' cedural rules and lack of enforcement lead to frus- tration and thereby encourage unnecessary confl ict between litigation counsel. Th e fi rst scenario in- volved a lawyer short-served with a roughly 60-page factum during a recent summary judgment motion on the commercial list. It was in 11-point font with 1.5 spacing. With double spacing and 12-point font, it was more than 100 pages. A practice direction required facta to be no more than 25 pages. Th e re- sponding factum was due four days later. Th e lawyer had already fl atly refused respond- ing counsel's prior request to receive the factum early. Once served, counsel could not object with- out bringing a motion, an option that was not only costly but also risked adjourning a trial date. Working at full steam and stretching fi rm resourc- es, it took two days past the deadline to respond. Dur- ing that time, the moving party delivered a revised fac- tum and took issue with the lateness of the response. Th e stage, therefore, was set for uncivil conduct. In the second example, a lawyer prepared to alistic to expect understanding and co-operation in situations like those described above. But there could have been less frustration and potential for confl ict if the rules were clear and capable of en- forcement. Th ere is no reason why the registrar must accept materials that do not comply with the techni- cal requirements, such as page limits, for fi ling. Th e quality of submissions would probably improve and there would be less leeway to unfairly disadvantage adversaries as a result. It may seem harsh to reject a factum at the counter but it would be so only for a relatively short period of time as litigators would soon learn not to count on bending rules. Likewise, when the rules of the game are clear, the As litigation is an adversarial process, it is unre- s counsel. examine a New York defendant. Under Rule 34.07, it was unclear where the examination should take place. Absent consent, it was for the court to deter- mine the location of the examination and whether attendance money was to be paid. Th ere was an immediate need for research to un- derstand the rule as it was in the client's interest to participants are less likely to clash. In tennis, we have linesmen to determine whether a ball is in or out of bounds and everyone knows where the line is. It would be absurd to expect the players to use a court without lines and to co-operate in discussions on the boundaries while they're playing the game. Lawyers should behave civilly, of course. While "Believe Richard Cleroux Saskatchewan, she explains. The legal sector is booming, particularly It's all about oil, mining, and in rural areas. everything else that spins off from those activities. One of the problems in rural and his new immigration policy. The immi- gration bar is all worked up about it. Under Kenney' areas is that many young law- yers are choosing to go into oil and mining law in bigger cit- ies such as Saskatoon, Regina, Calgary, and Edmonton. But let' s get back to Kenney eign firms operating in Canada will get to pick who comes here as an immigrant. That really riles up a lot of Canadians, s new law, employers and even for- especially those who don't like foreign firms as much as Kenney. We're a nationalistic bunch in Canada. Most of us, as much as we love foreign investment, have our own most-hated foreign firm operating here. Kenney is a tough and abrasive politi- cian who says many politically incorrect things. He may not always be aware of who he' "Employers are going to do a much better job at selection than a passive bureaucracy. s insulting. For example, Kenney has told audiences: So now we have a passive bureaucracy? " PAGE 7 He's talking about people who work for him when he says that. Is that what he thinks of them? Does he prefer letting a head office in another coun- try decide who gets to immigrate to Canada rather than have his own immigration officials do the job? It' who work for you. These are some of the same people getting pink slips from the federal gov- ernment this week. Kenney says he trusts businesspeople to pick immigrants because companies "can't afford to recruit people to come to Canada who can't work at their skill level on arrival. So he only wants workers who are ready on arrival. But that's short-term thinking, " something that usually gets companies and governments into a lot of trouble. What about taking on somebody who s a strange thing to say about the people may not be up to scratch right away but who could, over a longer period of time with further education and training, become a fantastic long-term employee able to work at a high level? Who knows? That worker might even be able to take over Kenney's job someday and LT then we might all be better off. Richard Cleroux is a freelance reporter and columnist on Parliament Hill. His e-mail address is richardcleroux@rogers.com. u Letters TO THE EDITOR LETTERS.indd 1 LAO SERVICES ON TRACK In response to concerns raised in the March 19 edition of Law Times (see "Lawyers skeptical of LAO' receives a Legal Aid Ontario certificate, he or she can take it to one of more than 4,000 private practice lawyers in Ontario who participate in the certificate program. Of the more than 100,000 certificates issued to clients each year, 93 per cent are acknowledged by a private lawyer, mean- ing a lawyer has accepted the certificate and started working on the case. The remaining seven per cent are matters that are often resolved without the need for a lawyer or the clients made alternative arrangements. The acknowledg ment rate has remained unchanged over the past five years. LAO' s 'phenomenal' changes"), when a client per day and close to 300,000 calls per year. Wait times are below three minutes, which is consistent with industry norms. Clients who are unable to wait on the phone have the option to use our callback feature that maintains their position in the queue while allowing them to key in their phone number. Clients receive a call from a legal aid representative when their position in the queue becomes available. A 2011 client survey showed a satisfaction rating of more than s client service centre receives more than 1,300 client calls 90 per cent from clients who accessed LAO services over the phone and a 95-per-cent satisfaction rate from those who accessed legal aid services at an LAO courthouse location or district office. Kristian Justesen Director of communications and public affairs Legal Aid Ontario ARBITRATORS CAN'T ERASE PREVIOUS OFFERS Philip Epstein sees nothing wrong if the same person who conducted the failed mediation conducts an arbitration on the same matter (see "Lawyer touts benefits, responds to critics of med-arb," March 12). He reasons that judges run voir dires all the time and that just as they block out evidence that has been excluded, arbitrators can do the same. The analogy does not fly. Voir dires do not deal with past negotia- there were no outward displays of hostility in the two scenarios described, the lawyers were not eager to off er assistance and ease the burden of litigation. It is hard to imagine things being otherwise. But if the rules were clearer and enforcement assured, there would be fewer opportunities for incivility. LT move the case forward. As the case law provided no Saba Ahmad is a commercial litigator in Toronto. www.lawtimesnews.com may have had a great deal of influence in shaping those offers. For an arbitrator to presume to ignore this data is to bestow on him or 1/25/12 11:22 AM tions. Even the most bombed-out husk of a failed mediation renders two critical pieces of data to the mediator: the best offers of both the applicant and the respondent. Indeed, depending on the mediator' s style, he or she her powers that we don't even permit a judge. There is a reason, after all, that the pretrial judge does not run the trial. It simply astounds that there are lawyers who think it possible and professional to run an ostensibly neutral hearing in full knowledge of past offers. John A. Tamming Professional Corp. Owen Sound, Ont. John Tamming

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