Legal Feeds Blog
An Ottawa man who battled two of his former law firms in court is celebrating the decision by the Ontario Court of Appeal to have his fee agreements with the firms reassessed.
The ruling in Clatney v. Quinn Thiele Mineault Grodzki LLP stemmed from the settlement of a personal injury claim that Mark Clatney of Ottawa had reached in July 2013 for $800,000.
Clatney had been seriously injured in a crash in March 2008, and pursued a personal injury claim with Bertschi Orth Solicitors and Barristers, before switching to Quinn Thiele Moneault Grodzki LLP.
Justice Gloria Epstein said:
At the heart of the appeal lies the importance of public confidence in the administration of justice and, in that context, the court’s supervisory role over the appropriate compensation for legal services.”
Bertschi Orth handed Clatney a bill of more than $117,000 for its work on the claim, and Quinn Thiele initially told Clatney it was owed more than $305,000.
According to the ruling, Clatney asked for a release of $50,000 from his settlement, but ran into problems after trying to get $50,000 released, and ended up paying Quinn Thiele $210,000 and Bertschi Orth $100,000.
“He noted that his acceptance came in the light of Quinn Thiele’s confirmation that the $50,000 could not be released as a result of the Charging Order and that a failure to accept the $210,000 offer would lead to an assessment hearing with consequent costs and delay,” said the ruling.
Epstein said Clatney was “vulnerable” when he entered into the fee agreements with the firms, and outlined other issues Clatney was facing.
“He was permanently impaired by the brain injury he suffered in the car accident. He was under intense financial pressure. The appellant did not have independent legal advice when such was clearly called for. He expressed his dissatisfaction with the legal services rendered by both firms,” said the ruling. “He terminated his retainer with Bertschi Orth and, when it came to resolving the firms’ fees and disbursements, the appellant expressed his frustration with Quinn Thiele. Finally, at the time the Fee Agreements were entered into, detailed accounts had not been rendered by Quinn Thiele.”
Epstein also noted Quinn Thiele “misled the appellant by providing erroneous legal advice” and “exerted pressure on the appellant to settle.”
“In these circumstances . . . the protection of the appellant’s interests and the public’s confidence in the administration of justice demand that the Fee Agreements be reopened and an assessment be ordered,” said the ruling.
Paul Auerbach, a partner with McNally Gervan LLP who acted for Clatney in the Court of Appeal process, told Legal Feeds he is “pleased” with the ruling.
“The decision reflects a very thorough analysis of the circumstances leading up to the consent order,” he said. “The decision is a clear reaffirmation of the role of the assessment process in maintaining public confidence in lawyers and the legal profession.
“It also makes clear that agreements between lawyers and their clients will be reviewed by the courts where the circumstances require it.”
The appeal court directed that all costs, fees, charges, and disbursements relating to the case be assessed and ordered $10,000 be paid to Clatney for costs of the initial application and $15,000 for the appeal.
Clatney — a corporate account executive who lost in job in 2010 — said “for the past eight years I have faced one of the most difficult experiences of my life.”
“We are gratified by the Court of Appeal’s decision and the assessment process can now get underway. This is all I ever wanted,” he said, in a news release.
Darryl Singer, a litigator with Singer Barristers, who was not involved in the case, said: “It appears that the Thiel firm used the client’s financial desperation to extract a settlement for itself, and the appeal court appears to have felt that it needed to step in and ensure that the client was not deprived of his right to an assessment just because he was in dire need of the money.”
William Hunter, who represented Quinn Thiele, did not have any comment.
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As Pride month kicks off in many parts of the country, Borden Ladner Gervais LLP unveiled a new policy to accommodate transgender employees.
|Laleh Moshiri says BLG wants to ‘create an environment of true inclusion.’|
The firm previously had other policies, such as one on anti-harassment, that refer to gender identity and gender expression, but did not have any stand-alone policies dealing exclusively with transgender issues, says Laleh Moshiri, BLG’s national director of diversity and inclusion.
“We wanted to create an environment of true inclusion,” she says. “We thought there were enough unique issues that this merited a stand-alone policy.”
The new policy, which rolled out mid-May, provides guidelines to employees and management as to how they can support and respect transgender colleagues. The guidelines include instructions on what to do when there is an employee who wants to transition and how to support that individual.
In addition, the policy deals with how to accommodate new applicants who may be transgender. It recognizes that each individual’s needs are different and that their privacy should be respected, says Moshiri.
The policy makes it clear as well that transgender employees are free to use whichever washroom corresponds to their gender identity or expression.
“We wanted to make that known to everybody else at the firm as well,” says Moshiri.
She says the timing was right for BLG to implement this policy as trans issues have been in the news a lot recently.
In May, the federal government introduced bill C-16, which would assert human rights for transgender people.
Debates have also been raging in the United States surrounding an ordinance, passed by the city of Charlotte, N.C., that would ensure a transgender person’s right to use the bathroom of their choice. The ordinance was struck down by the state legislature, which is now in a legal battle with the federal government.
“Trans issues have been receiving a lot of attention of late – whether it is stories of high profile transitions, Netflix shows, or debates around washroom usage,” she says.
“As we build a diverse and inclusive workplace at BLG, we thought it was important to develop a plan for supporting and accommodating trans individuals.”
The company has also installed single-access washrooms in its offices across the country in order to better accommodate transgender people. The signs on all the washrooms have been changed to indicate they are “all-gender restrooms.”
Moshiri says the company has not had someone publicly transition since the guidelines have been introduced, but when someone comes forward, the company will be ready.
“Part of this is we really wanted to have thought about all these issues in advance so that when we’re actually faced with them, we’re not reacting,” she says. “It was important to give it all thought.”
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- Some sexual touching legal; animal rights organization demands new law
Touching your animal in a sexual way is legal, as long as it doesn’t injure the animal or involve penetration.
|Peter Sankoff says this is the first time the SCC has acknowledged the rights of animals to be protected from sexual exploitation.|
The respondent had been convicted of multiple sexual offences against his two stepdaughters. In one instance, he tried to induce sexual intercourse between one of them and the family’s dog. When that didn’t work, he used peanut butter to induce oral sex.
The defendant was convicted of numerous sexual offences, along with one conviction for bestiality. That conviction, however, was overturned on appeal, after the defendant successfully argued that the statutory definition of bestiality requires there to have been sexual penetration.
Today, in a 6-1 majority decision written by Justice Thomas Cromwell, the Supreme Court upheld the appeal court’s decision, ruling that — regardless of public perception — the legal definition of the word “bestiality” extends from its introduction as a criminal provision in the 19th century. At that time, the term “buggery” was used instead, denoting a specific act that must include penetration.
In other words, the court insists that it cannot create a crime merely because public perceptions around the definition of the word may have changed.
And because Parliament has failed to update its definition of bestiality, the court must rely on historic definitions that have been grandfathered into current legislation.
As the decision states: “Courts will only conclude that a new crime has been created if the words used to do so are certain and definitive. This approach not only reflects the appropriate respective roles of Parliament and the courts, but the fundamental requirement of the criminal law that people must know what constitutes punishable conduct and what does not, especially when their liberty is at stake.”
The animal rights organization Animal Justice acted as intervener in the case, arguing that the appeal had not only to do with protecting children and punishing sexual offenders — it also had to do with protecting animals.
In a statement released immediately after the decision, the organization urges Parliament to quickly pass the Modernizing Animal Protections Act, a private bill tabled by Liberal MP Nathaniel Erskine-Smith.
“As of today, Canadian law gives animal abusers licence to use animals for their own sexual gratification,” executive director Camille Labchuk said. “This is completely unacceptable, contrary to societal expectations, and cannot be allowed to continue. . . . The Supreme Court threw the ball into Parliament’s court, and it is now time for legislators to act.”
Peter Sankoff, who represented Animal Justice before the court, says the laws around animal cruelty simply do not cover non-penetrative sexual acts, because the cruelty provisions require proof that the animal was made to suffer.
“It’s almost impossible to prosecute anyone for sexually offending an animal if you don’t use the bestiality provision,” says Sankoff. “You could injure the animal in some way that’s noticeable, there’s no question. But the rest of the time, it’s very difficult to get that proof. . . . It’s not like a child who can come forward after the abuse six years later and say, ‘I was abused, I’m suffering.’ You never have that evidence.”
Still, Sankoff says the ruling is not a total defeat for his client.
“I’m less disappointed than you might think,” says Sankoff. “What our client was looking for, as much as anything else, was recognition in law from the Supreme Court that animal interests are worth protecting and are important to protect. And we actually got that from both the majority and the dissenting judgment — and that’s never happened before.”
Indeed, as the decision states, “the fundamental values at stake in this debate include the protection of vulnerable animals from the risks posed by improper human conduct and the wrongfulness of sexual conduct involving the exploitation of non-consenting participants.”
Sankoff says this is the first time the Supreme Court has ever acknowledged the rights of animals to be protected from sexual exploitation, and it should be used as a call to arms for Parliament to act.
“I think it’s a recognition from the court that this is a value worth protecting. And to me, that’s really important in terms of advancing animal interests,” he says. “So, really, it’s a starting point for future arguments”
You don’t want to mess with a lawyer’s dog, at least not John Cram’s dog Cougie.
Cram, a former lawyer living in Nova Scotia, has launched “a blitzkrieg of litigation” against a local vet and his veterinary association after the vet prescribed painkillers to Cougie without first examining the dog, according to the recent decision from the Nova Scotia Court of Appeal.
The decision says Cram had left Cougie, who is, “by dogs’ standards, is a senior citizen,” with a caregiver while he went on a trip. Upon noticing Cougie was unwell, the caregiver called Dr. Michael Howlett, who prescribed the painkillers, according to the ruling.
Upon his return, Cram complained to Nova Scotia Veterinary Medical Association about the prescription, which he said preceded an evaluation of the pooch. When the association dismissed the complaint, the former lawyer applied for a judicial review.
He then appealed the decision of a case management judge to the court of appeal after taking issue with the dates chosen for the judicial review hearing.
“In reality, this vet’s attempts to help Cougie have turned into a litigation battlefield, pockmarked with motions, civil actions, and private prosecutions too numerous to count,” wrote Nova Scotia Court of Appeal Justice Edward Scanlan, who dismissed Cram’s appeal of the case management judge.
“This Court will not interfere with something as basic as the Supreme Court setting hearing dates. The setting of those dates in no way impacts the merit of the complaints or the review. Scheduling, as I noted above, is an essential aspect of the Supreme Court’s inherent and statutory authority,” Scanlan added.
“The fact that there has been no substantive disposition by the lower court leads me to conclude that Mr. Cram has simply seized upon the fact that Justice [Arthur] Pickup did something, anything, as a basis for yet another legal step,” said the ruling.
Cram tells Legal Feeds he will be seeking leave to appeal the decision at the Supreme Court of Canada. He is basing it on the assertion the court system in Nova Scotia is biased against him because of his 1994 conviction for contempt of court.
A note on the web site of the Law Society of British Columbia, of which Cram was a member, says he had acted in an “intemperate and disrespectful” manner toward a presiding judge at the time.
Two decades later, “The entire Nova Scotia court is institutionally biased against me because of that and they’re being vindictive,” says Cram, adding there have been numerous examples of this bias.
Cram says he is also appealing to the SCC on the basis that opposing counsel in this case is married to a judge in Nova Scotia, which he says led to partial treatment in his case. According to Cram, part of the prejudice against him within the courts is also due to the fact that he is not a Nova Scotia native.
Cougie is still alive, although not completely recovered, according to Cram, who says the dog had been suffering from an infection when she was prescribed the painkillers without assessment.
“If you put it in human terms, imagine you’re sick and your doctor, without even seeing you or without even talking to you on the phone, but just using the receptionist, prescribed some painkillers for you,” he says.
Cram believes porcupine quills had gotten under the dog’s skin and caused the infection. No vet in his area considered this might be the case although the area is thought to be “the porcupine capital of the world,” says Cram.
Marjorie Hickey, counsel for the Nova Scotia Veterinary Medical Association, says Cram has chosen to bring many motions in this matter.
“The motions that he brought to date have really been without foundation, so we certainly agree with the Court of Appeal decision.”
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A former Staples Canada saleswoman who rejected her employer’s severance package was awarded six months compensation in lieu of notice in a wrongful dismissal action against the retailer.
|Employment lawyer David Ertl says he is recommending summary judgment with clients more often.|
In Summerfield v. Staples Canada Inc., Michelle Summerfield brought a summary judgment motion against Staples after turning down a severance package offered to her in November 2015. She claimed she ought to have received between six and nine months’ compensation in lieu of notice.
On May 30, Justice Paul Perell awarded her six months salary, or $34,171.
Summerfield’s lawyer David Ertl of Ertl Lilly LLP says he proposed the summary judgment motion when they commenced litigation.
“For cases that are streamlined and there’s no disagreement as to the real Bardal factors, it works well and you can probably get to a motion for summary judgment date somewhere between six and eight months post filing the claim,” he says. “We’re starting to use this more and more with clients.”
Ertl said it was the same strategy he used in Drysdale v. Panasonic Canada Inc. in which an employer argued Drysdale, a warehouse worker, was not management and therefore was entitled to lesser overall severance. The court awarded him 22 months’ notice.
In the last 18 months, Ertl says he has found employers are “taking a more hardline stance” at the early stages, and fewer matters are settling on the basis of a demand letter.
“Employers are saying, ‘If you want to squeeze more money out of us you’re going to have to claim.’ Maybe they are putting a line in the sand or waiting to see if the employee mitigates,” says Ertl. “Keep in mind it’s not the norm that these files get adjudicated. Less than one per cent of wrongful dismissal matters ever go to some kind of adjudication. This is a case where the employer took issue with the employee’s mitigation efforts and wouldn’t let go.”
He says this case demonstrates that an employer can’t expect to win on the issue of mitigation by simply “nit-picking” the employee’s efforts.
“There was no way the employer was going to win on mitigation; I tend to put a great deal of work into helping my client mitigate,” he says. “The employer did argue at the motion that the notice period was three to five months and because of the failure to mitigate they took the position they owed her zero. So we were fighting for all of it.”
Summerfield’s annual salary including benefits was $83,901 ($6,991.83 a month) when she was terminated without cause after almost five years on the job as an enterprise account manager — a sales role that required her to sell office supplies and furniture to multi-national companies. She was not in a managerial position.
When she was let go in November 2015, Summerfield was 39 years old and had no written employment agreement. She was offered a severance package, the terms of which were not disclosed to the court, and which she rejected.
Instead, she took the five weeks of termination pay required under the Employment Standards Act, and five weeks of benefits, and started to look for a job.
Since November, Summerfield tried to find employment by networking, speaking to recruiters, and applying for about 25 jobs — and getting several interviews — up to March 30, but she remained unemployed.
As Justice Paul Perell pointed out: “. . . Ms. Summerfield made an exemplary effort to mitigate. She started almost immediately to search for a new job and she assiduously continued with that effort in an organized and diligent way. Staples failed to meet the onus of proving a failure to mitigate.”
The only issue in the case was the length of the reasonable notice period.
“The parties agreed on the general principles but disagreed on their application to the circumstances of the immediate case although, even here, the gap between the parties was only one month. Be that as it may, my own analysis of the various factors and Ms. Summerfield’s particular circumstances is that the appropriate reasonable notice period is six months and, as noted above, as a factual matter, there has been no failure to mitigate,” said Perell.
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