Law Times

Law TiMes • March 16, 2009 A good man who made poor choices J month, he did what honourable men do when they are tested and fail: he fell on his sword, depart- ing the political area. And that's a shame because most will agree Tory is an honourable man who had honourable intentions. History will forget his hon- Instead, at the start of the ohn Tory could be premier of Ontario today but for his choices. Inside Queen's Park By Ian Harvey our, however, and he'll likely be remembered for one of the great- est fumbles in all time: promis- ing to extend public funding for all faith-based schools during the 2007 election. The Legislature could look a lot different today had Tory not made his ill-advised promise. The back- lash killed his chances at election in Don Valley West and scuttled the party, eclipsing every other item in his platform and in the process ce- mented Dalton McGuinty and the Liberals into power. His fatal fl aw, some critics thing, and it would be the pub- lic sector's loss if he abandoned it entirely. He's not sure about his future, saying only he will go where, "I can make a difference," and there will be many corporate titles waved at him over the next few weeks. However, if Dalton McGuinty COMMENT PAGE 7 istry of the Attorney General's December an- nouncement concerning reform of the civil justice system. I've practised law since 1978 and I've seen Take a look in the mirror P ardon me if you think I'm being less than enthusiastic, but I'm not getting a warm and fuzzy feeling from the Min- has but one-tenth the class and integrity of Tory, he will be hud- dling with his advisers now to review what provincial appoint- ments are available, now or in the near future. For one, McGuinty owes his job have said, is that he isn't cunning enough for politics, which is some- what strange because he was born and raised in it. More likely, it's be- cause the same insulated environ- ment he was raised in has kept him from really feeling the pulse of the people and being able to translate that into votes. As the son of a prominent law- yer — John A. Tory — he was schooled true blue and called to the bar himself in 1980. He worked the backroom for former premier Bill Davis and former prime min- ister Brian Mulroney, then from 1986 through 1995 went to Tory Tory DesLauriers & Binnington and rose to managing partner, then went back to the private sector as president and CEO at Rogers Media from 1995 through about 1999, fi nding time to serve con- currently as commissioner for the Canadian Football League from 1996 to 2000. Wow. That's an impressive re- sume by any standard and one in which you'd think he'd pick up a political trick or two, even if by osmosis from those around him, both in corporate life and in the pubic sector. He crossed into the public spot- light when he ran a great race against David Miller in 2003 for mayor and fi nished second. And lest we forget, he also lent his name and time to help his opponents, Miller and for- mer mayor Barbara Hall, repay their campaign debts. That's a truly honourable man. to Tory. Not only did Tory hand him the keys to the House in the 2007 election, his departure and the inevitable race to succeed him as party leader means the Conserva- tives could be somewhat distracted for the next while. The NDP, meanwhile, have anointed Andrea Horwath as their leader, succeeding Howard Hamp- ton who is stepping down. She has a mammoth task ahead to retire the party's debt and lift it to a higher profi le. As a result, McGuinty may well feel the stars have aligned — the economy notwithstanding. As to Tory's future, one sugges- blitzes and purges and all sorts of reforms to the Rules of Civil Procedure. I've seen the cre- ation of fast tracks and simplifi ed procedure ac- tions, mandatory mediation, increased monet- ary jurisdiction of small claims courts, and yet through all of this the only constant is that we still have huge problems with costs and delays, primarily in the larger urban areas. Please, don't misunderstand me; I'm in favour of most of the reforms, but I don't think we'll come anywhere near solving the problems of delay and costs unless we realize the underlying source of the problems. It's lawyers. We lawyers have created the problem and the only way we'll fi x it is through severe behaviour modifi cation. I know it's not all of us, but look in the mirror and see if you aren't guilty of behaviour that has served to increase costs or create delay. It all starts before an action is commenced. Do we investigate the possibilities of settle- ment? Many lawyers believe that trying to settle early is a sign of weakness. They want to be tough lawyers. They want to be gladiators fi ghting in the arena. They don't want a good settlement at the "right" amount. They want to do better than that. Costs aren't a factor if they are acting for a client with large pockets. When we draft pleadings for plaintiffs do Social Justice By Alan Shanoff lay. Lack of preparation for discoveries results in improper objections and that scourge of discoveries, the taking of questions under ad- visement. This leads to unnecessary motions, further costs and delay. We have to ask ourselves whether we are con- ducting discoveries and trials to show off for our clients or to advance our clients' cases in an effi - cient, economical manner. I suppose part of the problem derives from a lack of training, or ig- norance, but a large part of this relates to ego and showmanship, doesn't it? On the other hand, if you've never juniored at a trial or had a senior lawyer sit with you during a discovery perhaps there's good reason for the ignorance. Do we take the time to prepare a thorough request to admit? Do we sit down with our cli- ents and prepare a proper response to the request? Do we agree on a docu- ment or exhibit book with opposing counsel? Do we do what we can to shorten both the examinations for discovery and the trials? A lot of what I'm talking about relates to the use of tactics de- signed to create expense and to delay the reso- lution of the dispute. A lot of this relates to a lack of civility. It is a big problem so much so that a recent Ontario Lawyers Gazette fo- cuses on incivility and features an article by Wendy Matheson, a partner with Torys LLP, which asks the question, "[w]hat is it about litigation, and litigators, that makes civility a constant challenge?" So what do we do? Yes, let's make chan- tion might be a commissioner's position with the Ontario Human Rights Commission where incum- bent Hall has run amok and is purs- ing the most diabolical of cases at massive costs to not just the taxpay- er but also to those targeted by her own private army enforcing politi- cal correctness. The most infamous so far is the we always insert realistic numbers or do we often seek infl ated numbers and insert claims for punitive, aggravated, mental distress, Wal- lace, and other assorted damages as a matter of course? In acting for defendants in dismissal actions, do we assert cause without adequate investigation? Do we use pro forma pleadings in personal injury cases? Are our pleadings short and concise, pleading the facts, not evi- dence or argument or extraneous issues? I know that some complex cases merit lengthy pleadings but shouldn't we have to justify any pleading beyond 20 pages? Do we always advise our clients about the medical marijuana brouhaha in which a bar owner has been told he can "settle" by paying a fi ne and allowing a complaint to smoke pot in the smoker's zone on his premis- es — and in the process lose his li- quor licence because he'll run afoul of the law which forbids consump- tion of banned substances. Then, of course, there was the Of course, we'll forget most of that and remember only that John Tory couldn't get elected. He did win one seat, former premier Ernie Eves' Dufferin-Peel-Wellington-Grey riding, after winning the Conser- vative party leadership in 2004, before being ousted when he ran in his home riding of Don Valley West in 2007. His third attempt at a seat in Haliburton-Kawartha Lakes-Brock after convincing Lau- rie Scott to step aside, ended in a loss and his resignation this month because you can't lead a party from outside the House. So now what? John Tory has a lot of offer, both in public life and the private sector. He's forthright, painfully seeks to do the right sentence without trial for Mark Steyn from Hall who declared his book excerpt in Maclean's "Islamo- phonic," but said she couldn't con- vene a hearing because of a "techni- cality." Hearings, smearings. Who needs 'em? Most recently the owner of a rules of discovery? Do we help our clients fi nd the relevant documents? Do we produce an avalanche of documents hoping to bury the important ones? Do we neglect to pro- duce certain documents waiting for the other side to seek production? How seriously do we take the certifi cates we sign in the affi davits of documents? How often are you, or is the other side, really ready for the examinations for discovery? How many lawyers meet their clients 30 minutes before a discovery and then provide only the most basic instructions about how to answer questions? Preparing a client for a discovery must be done thoroughly and it's time consuming but if you don't do it properly then it will create more costs and de- ges to the Rules of Civil Procedure to shorten lengthy discoveries and let's increase the monet- ary jurisdiction of small claims courts, but that won't modify the behaviour of the gladiators. I'm not a fan of complaints to the Law Soci- ety of Upper Canada save in the most egregious of cases. We ought to be able to solve our prob- lems without running to mother with every complaint of incivility or improper tactics. Money appears to be the only effective way to modify a lawyer's behaviour. Costs normally awarded to a party whose lawyer has engaged in misconduct should be with- held or reduced more frequently. Lawyers should be ordered to pay costs more fre- quently. Courts need to get tougher in their criticism of improper tactics and incivility. Judges and Masters should be encouraged to make comments about lawyers' miscon- duct and order that the lawyer provide an acknowledgment from the client that the client has read the comments. It is only when we lawyers suffer fi nan- LT cially and have to explain to our clients and partners why fees have been reduced or can- not be collected that behaviour modifi cation will take place. Alan Shanoff was counsel to Sun Media Corp. for 16 years. He currently is a freelance writer for Sun Media and teaches media law at Humber Col- lege. His e-mail address is ashanoff@gmail.com. women's gym is being tested on the OHRC rack because he refused to ac- cept the membership application of a pre-operative transsexual. You'll excuse the pun, but that's nuts. What we need is someone who will bring the OHRC un- der control and focus on fairness. Someone with proven common sense. nominate somebody, anybody, soon. And if not John Tory, please, 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. www.lawtimesnews.com

• Cover
• Queen Of Smiles
• Identity Theft
• Focus On Litigation