Law Times

Law Times • march 6, 2017 Page 7 www.lawtimesnews.com The power of sleep is crucial for lawyers BY DORON GOLD A couple of years ago, during a therapy session, a young law stu- dent studying for the bar exam said to me, "If only I didn't have to sleep, I could get done everything I have to do." This may sound outlandish, but it rep- resents a prevailing view in the legal pro- fession about sleep — that it's a luxury, not a necessity. When I ask clients about the quality and quantity of their sleep, I invariably hear, "Oh, I never sleep." Sometimes, in response, I may then ask them, "Do you breathe?" I ask this because both sleeping and breathing are essential for functioning as a human be- ing. Sixty per cent of Canadians were re- ported as getting about an hour less than the recommended amount of sleep each night, according to a CBC Leger poll from 2010. Should we guess whether legal profes- sionals meet or exceed that shortfall? Twenty-six per cent of women report trouble sleeping at least once a week com- pared with only 16 per cent of men. Nineteen per cent of people aged be- tween 45 and 64 years old admitted to losing sleep due to stress a few nights per week. And, over the past 20 years, 158 hours were added annually to the work schedule of the average person. Again, is there any question whether this number is higher or lower for those in our pro- fession? Sleep allows your brain to recuperate from and assimilate the experiences and lessons of the day. It helps entrench new memories in our brains. Sufficient sleep also boosts our immune sys- tems and increases me- tabolism, something ev- eryone wants. The average adult needs between seven and 8 hours of sleep per night, and few can manage with less than 5.5 hours a night. Less sleep than that can lead to nega- tive impacts including increased irrita- bility, poor concentration, more stress, memory impairment, greater emotional sensitivity, including to criticism, and low or anxious mood. In other words, the impact of insuffi- cient sleep is profound. The environment in which you sleep is a key element in the quality of your sleep or in the lack thereof. Sounds, suboptimal temperature and light can cause sleep disturbance. In addition, stress, lack of exercise, ir- regular sleep habits and poor nutrition can negatively impact the quality of one's sleep. Proper sleep hygiene also includes us- ing the bed solely for sleep- ing (and, of course, sex) but not reading, watching television or eating. In addition, keeping a set sleep routine, with a set daily bedtime — yes, even on the weekend — greatly improves sleep consisten- cy and quality. If, after lying in bed for 20 to 30 minutes, you can't seem to fall asleep or quiet your mind, get up and do something calming or boring until you feel sleepy, then return to bed and try again. Avoid doing anything that is too stimulating as this will wake you up even more. Your routine should, as well, include a set daily wake-up time. Turn off all backlit screens, includ- ing your cellphone, and put it on Do Not Disturb so you're not constantly hearing a buzzing calling to you from your night- stand. Avoid caffeine, nicotine and alcohol prior to bedtime. Caffeine and nicotine act as stimulants and hinder the ability to fall asleep. As to the effects of alcohol on sleep, contrary to popular belief, alcohol actu- ally hinders proper sleep. It may help you fall asleep, but it will keep your sleep shallow, blocking the healing effects one should garner from a good night's rest. Lawyers, being the high performers that they are, take pride in striving for ex- cellence. It is this pursuit that they often cite as their justification for curtailing sleep for more worthy pursuits such as preparation for a motion or drafting of the perfect shareholder agreement, no matter how long it takes. However, if you consider the case of Olympic athletes, another group that strives for excellence in its chosen field, what does one notice about the habits to which they give priority? To be sure, these top performers spend hours every day honing their skills. However, they also seek out and receive coaching, they eat properly, they work out their bodies more generally, they relax, and yes, they make sure to make time for sleep. Optimal performance requires opti- mal self-care and sleep is a cornerstone of any successful, healthy and happy career. It's not a luxury, it's required. And it's ef- fective. LT uDoron Gold is a registered social worker who is also a former practising lawyer. He works with lawyers and law students in his role as a staff clinician and presenter with the Member Assistance Program as well as with members of the general public in his private psychotherapy practice. He's available at dorongold.com. Civil delays and access to justice BY ANDREW MONKHOUSE AND SAMANTHA LUCIFORA I n the 2016 decision of R v. Jordan, the Supreme Court of Canada revisited s. 11(b) of the Can- adian Charter of Rights and Freedoms. The section states that an accused person has the right "to be tried within a reasonable time." In Jordan, the court outlined a new test in order to alleviate the "culture of delay." In the decision, the court outlined a framework containing a ceiling for delays in trials, beyond which the delay would be considered to be unreasonable. This ceiling was 18 months for trials in provincial court and 30 months for trials in the superior court system from the time of charge to the end of the trial. In the opening of the decision, the court stated, "Timely justice is one of the hallmarks of a free and democratic society." Yet, even though this decision centred around the delays of the criminal systems, the court did not speci- fy the ruling applied to "criminal" affairs. In our opinion, access to and adjudication of all legal matters is at the very core of our democratic so- ciety. As noted in the Jordan decision, delay is present in not just the criminal but also the civil court system, for which there are several reasons. For instance, there is much delay in the appoint- ment of judges and filling vacancies on the bench. All over Ontario, as well as specifically in Toronto, there were several judicial vacancies waiting for an ap- pointment at the end of 2016, leaving the civil branch of the Superior Court and Court of Appeal missing a number of judges. In addition, with growing Toronto and Ontario populations, the number of available judicial positions has not increased proportionately with the popula- tion. Combined with a focus on criminal trials after Jor- dan, this means the backlog for civil matters just gets longer. Civil delays cause major issues, primarily for those who have meritorious claims and are seeking enforce- ment of those claims. Delays in justice may well mean the defendant re- organizes or goes bankrupt while a creditor waits. It also means a defendant can deny the creditor money that they deserve for longer, or even forever, if judgment can be denied until bankruptcy. The Charter does not explicitly provide for eco- nomic rights, such as a right to a fast civil trial. However, if delays continue in the civil context at the current rate, there is a danger that a rights in- fringement may take place under s. 7 of the Charter — "7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamen- tal justice." The civil justice method is the only legal way for persons to legally resolve conf licts within society, and it is a pillar of our democracy as well as justice system. While we may not be at this step yet, it is clear that the rights of those needing trials will be infringed upon if at some point it is impossible to get a trial. Judicial independence is also a key pillar of our de- mocracy. It is not hard to see either how if a government fails in its duty to appoint judges in a timely manner that this might also be a breach of the unwritten constitu- tional principles. From an employment law perspective, the area in which we practise, most litigation deals with wrong- ful dismissal or the length of an employee's notice of termination. The idea behind wrongful dismissal laws is to help bridge the gap between employment by allowing an employee the time to find a new job while still re- maining paid by their former employer. When there are significant delays, the very core of wrongful dismissal laws is not served. That's because the employee will go without pay in between jobs and face financial ruin, because they have not received the bridge the notice period offers before they, hopefully, land a new job. If the employee declares bankruptcy as the result of a delay, this can seriously affect their wrongful dis- missal claim. In Jordan, the court states the delay in the system "rewards the wrong behaviour, frustrates the well- intentioned, makes frequent users of the system cyni- cal and disillusioned, and frustrates the rehabilitative goals of the system." The bar is experiencing a more active judiciary in order to help ease the backlog. For instance, there is an expanding scope of sum- mary judgment, post-Hryniak v Mauldin 2014 SCC 7, and more specifically in employment law following Beatty v Best Theratronics Ltd. 2014 ONSC 3376. However, not all cases can be heard by summary judgment. In our practice, we have found more summary judgment motions are being adjourned by the Toron- to Superior Court as delays creep into the system with lack of judicial resources. A summary judgment occurring two years after a termination is worse than a trial, not better. Aside from the current judiciary maximizing the resources available to them to help ease the overbur- dened system, it would be most helpful to continue to appoint new, diverse judges promptly and, in an ideal world, increase the number of judges proportionately with a f luctuating population. LT uAndrew Monkhouse and Samantha Lucifora are employment lawyers practicing at Monkhouse Law in Toronto. They focus on civil litigation within the context of employment, labour and disability law. u SPEAKER'S CORNER COMMENT The Lawyer Therapist Doron Gold

• Cover