Margaret L. Waddell

Margaret L. Waddell

is a senior partner at Paliare Roland Rosenberg Rothstein LLP in Toronto.  She has a varied advocacy practice including a broad range of complex commercial and shareholder litigation, professional liability cases, class actions and appellate advocacy.  She can be reached at marg.waddell@paliareroland.com.

Column: Trials & Tribulations
I’m sure there is nothing that warms the bottom of the heart of class action defendants more than seeing a mass exodus of potential class members from the proceeding following certification. Fewer class members mean reduced exposure to the payment of damages. And if enough people opt out, it could effectively render the class proceeding economically unviable from the perspective of class counsel. That, in turn, could lead to an early and lower settlement, or in an extreme case, a discontinuance of the proceeding or successful motion to decertify.
On April 4, the Federal Court of Canada approved the massive settlement of a class action in Manuge v. Canada, brought on behalf of disabled veterans of the Canadian Armed Forces. Since June 1976, the Federal Government had been deducting Pension Act disability payments from the amounts payable to veterans under their Service Income Security Insurance Plan LTD benefit plan. The loss of this income had a devastating effect on some class members of limited means and resulted in a substantial hardship to others.
Monday, 11 March 2013 08:41

Women need to ‘man up’

Two of the most prominent examples of women who have made it to the top of the corporate ladder have been getting a lot of press and stirring up much debate over the last few weeks: Sheryl Sandberg at Facebook and Marissa Mayer of Yahoo. The waves they have caused are crashing on the shores of traditionalist thinking.
Monday, 11 February 2013 10:16

Making the most of the year of the snake

This month I would like to put into practice two of my favourite aphorisms:
• Forewarned is forearmed; and
• All work and no play makes Jack a dull boy.
So as we slog our way through the wind, rain(!!!), and snow of what is indisputably the worst and most depressing month of the year, I thought we could have a little bit of fun by making predictions about the year to come.
Feb. 10 marks the start of the Chinese New Year. We are leaving behind the year of the dragon, and entering the year of the snake. Good riddance to you, I say, to the dragon — your domineering, risk-taking, and extreme nature is ill-suited to those of us who prefer calm and cautious environments and are typically risk averse (I was born in the year of the rabbit — we cottontails are apparently more circumspect by nature). So how are we to make the best of what the Eastern zodiac says in coming our way?
First a word of caution — in the past when the year of the snake has rolled around, some major negative world events have taken place. 1881 was the year the Russian Emperor Nicholas and family were assassinated. 1929 marked the start of the Great Depression. 1941 brought the Second World War. 1989 saw the Chinese forces crush the protesters in Tiananmen Square. 2001 saw the Sept. 11 terrorist attacks in the U.S. Hopefully in 2013 we can avoid any more disasters, whether they be personal or world-changing.
Fortunately, contrary to the stereotypical evil serpent of Western culture, the snake of Chinese astrology is supposed to be a positive omen. Snakes are lucky. They demonstrate the worthy characteristics of being rational, thoughtful, introspective, and wise. Snakes approach problems rationally and logically, rather than by rushing to act on instinct. Entering the year of the snake suggests financial success may be on the horizon for those who demonstrate the characteristics of a good snake. Snakes can be highly successful in business because they mix determination and ambition with insight and intelligence.
But there are two other elements to take into consideration — colour and earthly elements. This is the year of the Black Water Snake. These additional factors cannot be ignored. Water snakes tend to be lucky in finances; money seems to flow into their pockets.  Water is also associated with research and education. But black connotes unexpected changes, instability, and volatility. Together with the snake sign, these factors speak strongly in favour of caution — look before you leap!  The importance of planning everything in advance, and undertaking careful evaluation before taking any actions, is demonstrated. In the year of the Black Water Snake, lawyers will be well advised to be particularly careful and cautious in their work and business endeavours — otherwise the money may flow right back out of their pockets.
So, now is the time for diligent and determined lawyers to finish fine-tuning their business plans and prospects for 2013. Having a firm and well-thought-out plan in place, including identifying clear goals or targets for the year to come, is key to success. This is a year in which you should pay close attention to details, and apply extra focus and discipline to your work.
Now is not the time to take uncalculated risks. Budgets should be set and rigourously followed. A good snaky lawyer will carefully plan their business building strategy before acting — just as a good lawyer will analyze the facts and prepare a strategy before undertaking a retainer, so too should you carefully evaluate your business plan before setting it in motion. If the plan is well researched and diligently acted on, then it should lead to success before the end of the year. But in the year of the snake, even the best rainmakers may be well advised to more careful and cautious than their usual risk-taking selves.
That said, it appears with proper precautions in place 2013 has an auspicious outlook. Hard work and focus will pay off. Success will come to those who are focused on being well prepared and who know what they want to achieve from the outset.
This month I would like to put into practice two of my favourite aphorisms:
• Forewarned is forearmed; and
• All work and no play makes Jack a dull boy.
Monday, 14 January 2013 08:00

Becoming a better boss

I like to consider myself as being a reasonably competent lawyer. Occasionally — OK rarely — I do receive some form of external and objective validation of that fancy. But over the Winter Solstice holiday, I received an external and objective confirmation that I suck at being a boss. In fairness to me, Good Boss 101 is not a course offered at law school or during the bar admission course when I was a student. It should be.
Monday, 10 December 2012 08:00

Waiver of tort: the mystical parasite

In June 2012, the first modern trial decision meant to address the mysterious question — what exactly is waiver of tort, and do I want one? — was released. After a grueling 138-day trial, unwinding over the course of a little over a year, Justice Joan Lax delivered an equally exhausting 260-page judgment — complete with indexes, footnotes, glossary of medical terms, and schedules — in the case of Andersen v. St. Jude Medical, Inc.
Class actions serve the important social purposes of deterring the wrongful conduct of big business, and ensuring that when the “little guy” is harmed, the wrongdoer does not profit. In many class proceedings, the focus is on this latter concept — preventing the unjust enrichment of the defendant — and compensating the injured class members is secondary because on an individual basis the claims are not viable.
 
An article entitled “Alberta judge fights to take back the legal system” in The Globe and Mail drew my attention to a powerful decision from Alberta’s Associate Chief Justice J.D. Rooke issued in late September. In Meads v. Meads, Rooke pointed his gavel squarely at the elephant in the courtroom and called it for what it is. What followed were detailed and pointed reasons for decision in plain language, in which he identified the pervasive problem of self-represented litigants who follow a prepared modus operandi to disrupt the court system.
The annual September opening of the courts is upon us, and with that traditional passing, I have turned my thoughts to a few simple methods by which we can improve efficiencies in the system.
Class actions are meant to achieve access to justice — an amorphous idea subject to as many interpretations as there are participants in the justice system. Access to justice should include not only the ability to seek and retain qualified and competent legal counsel and the ability to have one’s case heard by an independent and impartial judiciary; it should also mean the ability to have a complaint prosecuted and tried within a reasonable period of time. Unfortunately, there seem to be an unlimited number of obstacles to litigants obtaining access to a judicial determination of their cases in a reasonably timely manner, and those obstacles are compounded in the class action setting.
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