Law Times

Page 6 September 25, 2017 • Law timeS www.lawtimesnews.com COMMENT u EDITORIAL OBITER By Gabrielle Giroday Contingency caution C ontroversy over contingency fees isn't new. However, a ruling this week in the family law realm has important takeaways. In Jackson v. Stephen Durbin and Associates, Ontario Superior Court Justice Thomas Lof- chik ordered a Toronto law firm to refund a $72,000 premium it charged to a family litigant for the favourable result achieved at trial in a custody battle. Stephen Durbin — the principal of the firm involved — is consid- ering an appeal because he doesn't think this particular type of pre- mium charge should be considered a contingency fee. What I found enticing were Durbin's arguments in support of al- lowing contingency fees in family law, particularly when it comes to cases where women are exiting long marriages and have little finan- cial resources to wage legal battle against their former spouses. "They need a lawyer, but they can't afford to retain counsel because he's got all the money," Durbin says. It's a fascinating angle on promoting access to justice. Here's the rub, however. The family law bar already knows it is fac- ing a massive access-to-justice issue. While allowing contingency fees in family law might be a short- term fix, introducing 'bonus' payments to lawyers for successful re- sults carries dangerous precedents. Aren't ethical lawyers always go- ing to do the best they can to represent their clients? Why should such a premium be necessary? The means to hire a lawyer (financing) — and the ends achieved (a possible bonus) — are two dif- ferent things. Either way, encouraging contingency fees for family law cases should be approached with caution. LT ©2017 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written per- mission. 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Karen Lorimer Managing Editor . . . . . . . . . . . . . . Jennifer Brown Editor . . . . . . . . . . . . . . . . . . . . . . Gabrielle Giroday Staff Writer . . . . . . . . . . . . . . . . . . . . .Alex Robinson Copy Editor . . . . . . . . . . . . . . . . . . Patricia Cancilla CaseLaw Editor . . . . . . . . . . . . . . . . . . Leah Craven Art Director . . . . . . . . . . . . . . . . . . . Phyllis Barone Production Co-ordinator . . . . . . . . .Catherine Giles Electronic Production Specialist . . . Derek Welford Wealthy is a dirty word BY SUSAN DELACOURT G etting rich used to be a lifetime goal for many people. In Canadian politics these days, however, wealth has somehow become a political liability. It's not a sin to be rich in Canada, but the well-off constituency shouldn't expect to have many political friends — at least not out in the open, anyway. Prime Minister Justin Trudeau and his Liberal team have spent a cou- ple of years arguing with opponents about what defines "middle class." It was clear that everyone wanted to be on the side of the middle class or, in the o-repeated phrase of the ruling Liber- als, "those working hard to join it." e problem, of course, was that no one could ever come up with a precise definition of this sought-aer demo- graphic slice of Canada. What made a person middle class? Weekly income? Bank account? Home ownership? Subur- ban dreams? Now, thanks to a controversy over pro- posed tax changes for private corporations in Canada, there's a new debate about class definitions this fall — over what kind of Canadians we would call wealthy. "A lot of those wealthy folks are really fighting to keep those benefits that they have, and they're making a lot of noise," Trudeau said in a media interview earlier in September, talking about the growing controversy over the tax changes. It was actually kind of a remarkable thing for a prime minister to say — that his big- gest problem right now comes from people with fat wallets. Not very subtly, Trudeau also seemed to be saying that the people opposed to the tax changes were wealthy, noisy and selfish. Privately, Liberal sources were telling reporters, too, that the Trudeau Liberals don't mind all the noise being made in the tax-change controversy; that it reinforced efforts of this government to be seen as he- roes of the middle class and the "little guy." Meanwhile, Conservatives aren't so keen to be seen on the side of wealthy people either. We saw this on the very first day the Commons got back to business af- ter its long summer break. As Trudeau re- peatedly stood up and slammed wealthy Canadians for opposing his tax changes, Conservative leader Andrew Scheer tried to do some class-correction measures. "ese are not wealthy Canadians; these are hard-working, middle-class entrepreneurs planning and creating jobs," Scheer said. It is interesting to see how the phrase "hard-working" has become untethered from the idea of wealth and pros- perity in Canadian political rhetoric in the fall of 2017. Working hard does not make you wealthy — perish the thought — and being wealthy, by extension, means you probably don't work hard. e professional class in Canada — doctors and, yes, lawyers, too — present a bit of a problem to this logic, though. Most people are aware that lawyers, doc- tors and other professionals work hard and are also well compensated. Do the Trudeau Liberals really want to be seen as unfriendly to hard-working doctors and lawyers? ere are probably many explana- tions for how wealth came to be seen as politically toxic in Canada these days. Zero-sum economics, in which one per- son's gain is seen as another's loss, proba- bly has a lot to do with it, as does the rising gap between rich and poor in this country. We might also be seeing the fallout of the crackdown on political financing in Canada over the past decade. Politi- cians don't need to cozy up to big money for large donations anymore, so being a friend to the rich is less of a requirement for running a campaign. e same is true about getting votes. Whether a citizen is rich, poor or "middle class," they all have the same donor limits — $1,550 per per- son in 2017. What's less explicable is how voters, increasingly wary of wealth's influence, don't seem to mind putting the rich into office. As mentioned, Canada's prime minister and finance minister — the same ones now accusing wealthy peo- ple of making noise — come from very comfortable backgrounds. But these are strange times all over the world when it comes to wealth and poli- tics. Less than a year ago, the shrinking middle class in the United States elected a billionaire as president. Being wealthy is not an obstacle to winning power, but catering to the wealthy is apparently an obstacle to keeping power. LT uSusan Delacourt is an Ottawa-based political author and columnist who has been working on Parliament Hill for nearly 30 years. She is a frequent political panellist on national television and au- thor of four books. She can be reached at sdelacourt@bell.net. The Hill Susan Delacourt Susan Delacourt

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