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Lawyers who deal with emotionally charged mediation and arbitration may often feel ill equipped to deal with the personality conflicts they face, but a panel discussion Monday examined tools to manage them better.
|In mediation lawyers may be dealing with individuals who may not know they are suffering from a personality disorder. (Photo: Shutterstock)|
Speakers included Howard Hurwitz, a social worker who handles mediation in dealing with “high conflict” families, Mary Truemner, vice-chairwoman of the Human Rights Tribunal of Ontario, and Nathalie Boutet, of Boutet Family Law, and Michael Cochrane, a family lawyer with Brauti Thorning Zibbaras LLP.
The goal of the panel was to help those involved recognize common personality disorders and provide some practical strategies for improving mediation when personality disorders are present.
“We run into very difficult people facing difficult, emotional problems. We are hoping with the panel to get a handle on how can we diagnose these people, figure out what they’re all about and then have a strategy for dealing with them, whether as a mediator or as a lawyer, and also to make sure we’re looking after ourselves in the process if acting as a mediator,” said Cochrane.
Often, though, in mediation lawyers may be dealing with individuals who may not know they are suffering from a personality disorder or may be diagnosed and are in denial.
Hurwitz outlined four personality disorders including:
• Borderline: people who have erratic and unpredictable behaviour.
• Narcissistic: focused on themselves; it’s all about them and no awareness of anyone else in a process. In family mediation this may occur with people who speak to what is in the best interest of the child but really are focused on their own best interest.
• Antisocial: no regard for rules. They have their own set of rules and trying to talk about a regulatory framework is something very difficult and challenging.
• Histrionic: a need to be the centre of attention and often call with hysterical reaction to latest crisis.
Hurwitz said there are four helpful steps in trying to reduce hostility or problematic behaviour.
• Build trust and rapport.
• Be strategic and objective and provide structure; provide an agenda for the mediation session and make sure the parties have input on the session.
• Stay grounded in the here and now; ensure there is some reality perspective to what is trying to be done.
• Be clear about consequences.
When dealing with personality disorders Hurwitz said it is important to provide structure and limits to your relationship; maintain professional boundaries; allow some brief venting; empathize but don’t condone behavior and avoid criticism and anger.
“Many of these people have a need to talk about how they have been wronged prior to getting to you. I find it helpful to allow some brief venting and then redirect and reframe,” he said.
However, Truemner who does mediations and is also an adjudicator, noted it is difficult to “diagnose” people, even with access to medical files, and that it can be often impossible to have a full picture of someone’s mental health. She also cautioned it can be problematic relying on various strategies.
“I’m a little bit wary of pigeon-holing people,” she said. “I treat each party as unique, bearing in mind that I have a duty to accommodate disability myself because I’m providing a service.”
Often during a mediation/adjudication Truemner said she will use medical records to acknowledge briefly to the person that she understands their situation.
“Just to let them know that I get it and that I understand how hard it is,” she said. “It shows that I’m open to talking about disability and open to understanding how it requires accommodation.”
She noted that the definition of disability does include a mental disorder. For example in the recent Graff v. Jones Le Salle Real Estate Services Inc. case, personality disorder was mentioned where it was recognized as a disability and discrimination was found for failure to accommodate.
“One of the ways we at the tribunal accommodate — perhaps with obsessive compulsive disorder who gives us a heads up — I take a long time to make decisions about things and not the half day normally scheduled. We may even ask for medical documents to support the request for accommodation,” she said.
“Dealing with people different disabilities does require more time.”
Truemner agreed that people won’t always be self-aware and know they have a personality disorder and you need to be careful with making assessments.
“There’s a danger in assuming someone has a personality disorder based on your own observation. They may think you are going to prejudice the process because of that perception. You might jump on a bandwagon and go down the wrong road,” she said.
She also noted the importance of “active listening” and demonstrates that you have read the file, and be slow and focus.
“Just say ‘How are you, how are you doing?’ and get ready to listen, because it’s going to take a long time for them to describe how they’re doing but you’ll be able to open that door to talk about disability,” she said.
Build extra breaks into the schedule and take your time, Truemner suggested.
“Repeat legal principles and their application; I’m very honest about what I think is going on in a file. It builds trust and gets to a point where I can ask them, ‘Do you really think your prediction is going to pan out?’ I get to open those doors more easily once I’ve gained that trust,” she said.
Boutet spoke to “triggers” that mediators should watch for in themselves and clients to avoid emotionally veering off course.
“Our ability to think and reason diminishes when we are triggered,” she said. “As a practitioner, lawyer, mediator if you get triggered by difficult personalities you will not necessarily be attentive to all of these things we are supposed to be attentive to.”
“Often we are placing them in front of really horrific choices where they get triggered, get emotional and we ask them to evaluate the good and the bad of the choices.”
Boutet offered two tips to avoid triggers going into mediation.
• Set an intention: a determination to act in a certain way and a way to bring about, forcing you to clarify what you want. Commit your intention to writing. Define who you will be and what your intention will be.
• Self-care: i f you don’t get proper sleep or eat right you will be more susceptible to being triggered.
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A personal injury lawyer won’t be getting thousands of dollars in fees after a judge ruled an agreement reached with her clients was “not fair or reasonable.”
|Clients will get $2.75 million after a sailboat incident but their lawyer won’t be getting all the fees requested.|
Edwards — who has been developmentally delayed since shortly after his birth — suffered serious health effects from the fall, with a doctor indicating he is permanently disabled.
In 2012, Edward’s mother Eve Ojasoo and her husband retained De Rose PC to seek damages as a result of Jared’s fall, on Jared’s behalf, as well his family members.
A settlement of $2.75 million was reached, however, in his ruling Ontario Superior Court Justice Mario D. Faieta said he did not approve of the contingency fee agreement the law firm had with its clients.
“Unlike other CFAs, the Agreement does not state that the client has been advised to obtain independent legal advice before signing the CFA,” said Faieta.
“The misunderstanding related to the payment of disbursements demonstrates the importance of encouraging prospective clients to obtain independent legal advice before signing CFAs.”
In his ruling, Faieta stated an agreement must comply with the provincial Solicitors Act, and regulations that fall under it. In particular, Faieta emphasized an agreement must state that a client is advised hourly rates can vary among lawyers and the client can consult with other solicitors to compare rates. He also said the agreement did not show an example how the contingency fee is calculated.
“While some may view this conclusion as a harsh result, even though these requirements have existed for more than a decade, there is nothing in the Act or O. Reg 195/04 that permits this court to waive compliance with these requirements,” wrote the judge.
Faieta also said Ojasoo believed the law firm bore the risk it would not be reimbursed if the matter was unsuccessful, but this wasn’t accurate.
The agreement actually stated: “In addition to the Legal Fee or the Court/arbitration-ordered Costs, you agree to pay all expenses, even if we cannot settle your claim and/or you lose at trial.”
“Clearly Eve did not fully understand this agreement,” wrote Faieta.
“A significant aspect of this Agreement is establishing who bears the risk of paying for litigation expenses in the event that this action is unsuccessful. Eve did not understand that she, rather than De Rose, bore the risk of paying for disbursements in those circumstances. Eve’s misunderstanding of the Agreement is troubling as it demonstrated that De Rose did not adequately explain the Agreement to her.”
In his conclusion, Faieta approved the settlement to Edwards, but declared the agreement with the firm to be void.
He slashed the amount the firm was set to receive.
“I order De Rose’s account for legal fees, disbursements and taxes in relation to Jared’s claim be reduced by $381,311.30 to $225,00.00,” he ruled.
Darryl Singer, a litigation lawyer with Singer Barristers, said the “real lesson from this decision is for personal injury lawyers to ensure their retainer agreements will be upheld.
“For example, my firm’s contingency agreements specifically state that if there is no settlement or judgment the client pays nothing and I eat my disbursements,” he says. “Additionally, rather than sign the client immediately and have an ‘out’ clause, don’t have the client sign the retainer until you at least have some basic information to determine if you want the case.”
Lawyers can protect themselves by explaining the agreement to a client and ensuring it complies with the Act, Singer says, as well as stating “in the agreement that no fees or disbursements will be payable to you if there is no recovery.”
“Cases like this . . . embolden clients to challenge fees that for the most part the lawyers deserve,” he says.
This week, the Supreme Court of Canada begins its spring session. The court will hear two appeals. One involves jurisdiction around border-straddling properties, and the second is a procedural appeal involving a successful Charter defence where no such argument was made at trial.
April 21 – Federal – Windsor v. Canadian Transit
Jurisdiction: The city of Windsor, Ont.’s bylaws required repairs of 114 properties owned by the respondent, including the Ambassador Bridge between Windsor and Detroit. The respondent sought a declaration in Federal Court that the properties owned by the respondent fall under federal jurisdiction and are not subject to the city’s bylaws. The city of Windsor’s motion to strike the application was set aside by the Federal Court of Appeal. The SCC will determine whether constitutional principles grant the Federal Court and Federal Court of Appeal jurisdiction to determine such matters.
Read the Federal Court of Appeal’s decision
Related news stories:
Fate of Ambassador Bridge plans in top court’s hands, Windsor Star
April 22 – Quebec – Morasse v. Nadeau-Dubois
Civil procedure: The applicant here was a university student in Quebec who wanted to attend classes amid a student protest. Morasse successfully argued at trial that the respondent, the leader of a student protest movement, was in contempt for having publicly urged students to picket on campus despite a court injunction. The trial decision was overturned on appeal, and the SCC will determine whether the appeal court erred in allowing a freedom of expression defence when no constitutional argument had been made at trial.
Read the Quebec Court of Appeal decision
Related news stories:
Supreme Court will hear appeal involving Gabriel Nadeau-Dubois, Montreal Gazette
Amber Alert issued for five-year-old girl abducted in Aurora, Canadian Press
Hearing continues for B.C. couple accused in terrorism plot, Canadian Press
Body of missing First Nations teen found in Kenora, Canadian Press
The Supreme Court of Canada today struck down two so-called tough-on-crime measures introduced by the former Conservative government, ruling the changes to sentencing practices were unconstitutional.
|The SCC struck down two Harper-era tough-on-crime laws.|
Mandatory minimum sentences for non-violent drug offenders were enacted in 2012, part of changes to the criminal law made by the Conservatives.
“The reality is this: mandatory minimum sentence provisions that apply to offences that can be committed in various ways, under a broad array of circumstances and by a wide range of people are constitutionally vulnerable. This is because such provisions will almost inevitably include an acceptable reasonable hypothetical for which the mandatory minimum will be found unconstitutional,” said the majority ruling written by Chief Justice Beverly McLachlin for justices Rosalie Abella, Thomas Cromwell, Michael Moldaver, Andromache Karakatsanis, and Suzanne Côté”
“If Parliament hopes to maintain mandatory minimum sentences for offences that cast a wide net, it should consider narrowing their reach so that they only catch offenders that merit that mandatory minimum sentences. In the alternative, Parliament could provide for judicial discretion to allow for a lesser sentence where the mandatory minimum would be grossly disproportionate and would constitute cruel and unusual punishment,” said the majority.
In the second case, R. v. Safarzadeh‑Markhali, the court voted unanimously against denying enhanced credit for pre-sentence time spent in custody to those that had been denied bail primarily due to a prior conviction.
Reforms in 2009 made those that had been denied bail primarily because of a previous conviction ineligible for enhanced credit, limiting the credit for pre-sentence time served to a one-to-one basis, rather than one-and-a-half days.
The court ruled that the denial of enhanced credit was overly broad.
“The denial of enhanced credit for pre-sentence custody to offenders who are denied bail primarily because of a prior conviction is overbroad because it catches people in ways that have nothing to do with the legislative purpose of s. 719(3.1) of the Code, which is to enhance public safety and security. Section 719(3.1) thus violates s. 7 of the Charter,” said the unanimous ruling, also penned by McLachlin.
There are two new law deans on the scene.
|Christopher Waters is the new dean of law at the University of Windsor.|
Waters, a member of Windsor’s faculty of law since 2007 and associate dean from 2009-12, has been acting dean since last September. Now that he’s been confirmed for a five-year term he can “really sink my teeth into some of the big items,” he says. He intends to “champion some of the things that make Windsor unique.”
First on his list: attending an Anishnabe Law Camp with the Walpole Island First Nation with a dozen faculty members.
The camp will be led by the First Nation’s elders and the agenda includes a historical overview of the land and learning from water and rocks, among other things.
“I can’t think of a better way to start my deanship,” he says. “It’s a pretty cool agenda.”
A priority for Waters during his deanship is “responding meaningfully” to the Truth and Reconciliation Report.
The report, which came out last year, made recommendations aimed specifically at law schools encouraging them to not only teach aboriginal law or Canadian law on aboriginal peoples, but also indigenous legal traditions.
“It’s important the faculty learn from the elders themselves about what the indigenous legal traditions of people in Southwestern Ontario are,” says Waters.
“We’ve hired two indigenous law professors who are starting with us in July. We hope that in addition to teaching about the common law and the civil law, we hope students will also understand that there’s a basket of legal indigenous traditions across the land.”
Moving from Canadian legal traditions to our neighbour to the south, Waters is also planning on taking “full advantage” of Windsor’s border location.
Windsor already offers an integrated dual-JD program with the University of Detroit Mercy but Waters says he would “like to expand as well, for example fully participate in a trans-boundary environmental law clinic with Wayne State University in Detroit.”
“There are lots of collaborations we can do with our partners and I think our border location gives a really unique opportunity to show international and transnational law in action.”
Another goal for Waters it to enhance experiential learning opportunities at the law school. He says he wants to look at other ways of doing experiential learning in and out of the classroom.
“I have to pitch it to faculty council but I’d like to see every student graduating from Windsor Law having had a meaningful experiential learning opportunity,” he explains, adding that the admissions process welcomes rounded students who have the ability to excel in the study of law but also contribute to their community.
“Next year or the year after we’ll be hiring a professor specifically to help lead us in that regard.”
From lofty aspirations, to more housekeeping aspects of the job, Waters says one of the challenges he’s inheriting is that the law school is outgrowing its current building. He will be looking at moving the faculty or a “significant renovations” involving a capital campaign.
Black-Branch, who was a teacher before beginning his academic law career, is currently a professor and chair in international law, as well as associate dean of education at Royal Holloway, University of London.
As well as holding multiple academic leadership roles, Black-Branch is also involved in the legal profession. From experience gained through chairing committees, launching roundtable forums, and co-editing journals and a peer-reviewed book series,
“I believe the faculty of law can look forward to a very promising future under his leadership,” said Joanne Keselman, provost and vice president, academic, at Robson Hall in a news release announcing Black-Branch’s appointment.
History today was made as the Supreme Court of Canada declared all non-status and Métis Indians to be, without exception, “Indians” under the Constitution — and afforded all rights therein.
|Lawyer Jason Madden says he was pleasantly surprised at how far the court was willing to go to bring Métis and non-status Indians into the fold.|
The ruling, Daniels v. Canada, is the fruit of a legal battle initiated more than a decade ago by the late Métis leader Harry Daniels, who sought on behalf of Métis and non-status Indians a three-part declaration:
1. that Métis and non-status Indians are “Indians” as the term is used in s 91(24) of the Constitution Act, 1867,
2. that the Queen owes a fiduciary duty to them as such,
3. and that they have the right to be consulted by the federal government on a collective basis, respecting their rights, interests and needs as Aboriginal people.
At trial, the court dismissed the second and third declarations, but ruled that Métis and non-status aboriginals were indeed Indians under the Constitution.
The Federal Court of Appeal, however, narrowed that definition last year, excluding non-status Indians outright and ruling that only Métis who met certain criteria under the SCC’s 2003 decision in R. v. Powley could be deemed “Indian.”
Today, a unanimous panel of nine judges set aside the appeal court’s narrow definition and granted constitutional rights to all Métis and non-status Indians. And while the decision, written by Justice Rosalie Abella, similarly dismisses the second and third declarations, it does so only because fiduciary and consultative duties are presumptive under the first declaration.
“There is no need to delineate which mixed ancestry communities are Métis and which are non status Indians. They are all ‘Indians’ under s. 91(24) by virtue of the fact that they are all Aboriginal peoples,” the decision states.
“The historical, philosophical, and linguistic contexts establish that ‘Indians’ in s. 91(24) includes all Aboriginal peoples, including non status Indians and Métis. The first declaration should accordingly be granted.”
Jason Madden, who represented the Métis National Council, says he was pleasantly surprised by the emphatic language used by Justice Abella, and how far the court was willing to go to bring Métis and non-status Indians into the fold.
“We got the trifecta today, and we weren’t expecting it,” he says. “We were clearly expecting number one, which was inclusion, but they went even further to say, ‘On fiduciary relationships, we will reaffirm what we’ve already said, and on the duty to negotiate . . . we’ve already recognized it.”
Madden calls the decision “elegant” in the way it “walks around” the issue of whether non-status and Métis aboriginals should be forced to meet criteria before being deemed Indian enough to demand consultation and negotiation.
As the decision explains, s. 91(24) and s. 35 in the Constitution play different roles: the former sets out jurisdictional obligations owed to aboriginals; the second creates a framework for land claims and treaty negotiations.
So, while Métis and non-status aboriginals are all collectively “Indians” under s. 91(24) of the Constitution, individual native bands, along with Métis and non-status Indians, must be assessed on a case-by-case basis — employing the framework set out under s. 35 and the criteria under Powley — when pressing cases around land claims and treaties.
That may not sound like a substantial victory, but until now Métis and non-status Indians have been denied jurisdictional responsibility or even a seat at the table.
“Because of the lack of accountability and the lack of certainty, these people have fallen through the cracks,” says Madden. “And the court is saying, ‘No longer . . . You cannot sit on your hands when you know there are rights and claims there and there is a positive obligation to negotiate.’”
Perhaps more importantly, Madden says the decision opens the door to wider reconciliation with Métis and non-status Indians, who’ve historically been disenfranchised and disregarded by both government and aboriginal groups.
“I actually like the way Abella starts it. She says that the curtains are opening wider on the stage, because previously Métis have been shuffled off the stage, and what she is saying is that reconciliation is about all aboriginal people, and that they need to be included on the stage.”
The Liberal government unveiled draft legislation today on doctor-assisted death which would apply to adults suffering incurable illness or disability but stopped short of extending it to minors or the mentally ill for now.
|Parliament will vote on the draft assisted-dying law by June 6. (Photo: Gail J. Cohen)|
The Supreme Court of Canada overturned a ban on physician-assisted dying last year but gave the new government of Prime Minister Justin Trudeau extra time to pass legislation, adding Canada to the handful of Western countries that allow the practice.
Trudeau, whose father declined treatment for cancer before his 2000 death, said Canadians were “extremely seized with this issue.”
“It’s a deeply personal issue that affects all of us and our families and all of us individually as we approach the end of our lives,” he told a news conference in London, Ont.
“The plan we have put forward is one that respects Canadians’ choices while putting in place the kinds of safeguards needed.”
Under the law, patients would have to make a written request for medical assistance in dying or have a designated person do so if they are unable. There would be a mandatory waiting period of at least 15 days in many cases, and patients would be able to withdraw a request at any time.
Patients would also have to be experiencing “enduring and intolerable suffering” and death would have to be reasonably foreseeable. Only those eligible for Canadian health services are eligible, eliminating the prospect of “suicide tourism.”
Critics are already calling out some aspects of the law. Toronto health law practitioner Mark Handleman says the draft law flies in the face of the Supreme Court’s decision in Carter v. Canada (Attorney General), which recognized that there are people who have conditions such as multiple sclerosis, which is debilitating but not terminal.
“There is a requirement that the patient’s death is ‘reasonably foreseeable,’ says Handleman. “What does that mean? Everyone’s death is ‘reasonably foreseeable.’ What isn’t foreseeable is the timeline, certainly for healthy patients but also for many people with terminal conditions. Medical complications, effective cures, and even a person’s will to live (or lack thereof) will affect the time line. What if death is ‘reasonably foreseeable” within five years? Ten years?”
The Supreme Court stipulated that a patient need not accept a particular, or any, treatment, notes Handleman. The legislation requires that the illness, disease, or disability also be “incurable.”
But “what if it is curable, but with a treatment the patient does not wish to accept?” he asks.
The government did not adopt suggestions from a parliamentary committee that had suggested the law should also apply to those who suffer only from mental illness, or those who put forward advance requests. It said those issues needed more study.
Polls show physician-assisted suicide has broad support in Canada but the issue has divided politicians in Parliament as they grapple with how to protect vulnerable Canadians while respecting their rights and choices at the end of life.
The Liberals will allow a free vote on the issue and not require its legislators to back it.
Handleman notes the government did not table the regulations setting out when and how reports of medical assisted death must be made, or to whom. He says, “if these are not available when the legislation is passed, what assurances of consistent application of the law, of protection of the vulnerable, of access to assisted death for all Canadians equally, do the people of Canada have?”
He also suggests that there will likely be court challenges to the legislation from those under the age of 18 who wish aid to die; persons with intolerable conditions that are not terminal — including people with serious mental disorders.
In December, a Quebec court ruled the province can implement Canada’s first law permitting physician-assisted death while the federal government decides on a framework for how to handle the issue.
The Quebec legislation recognizes the need for access to palliative care, says Handleman, while this federal legislation “does not address this valid concern about a significant shortage of this resource everywhere in Canada.”
With files from Reuters.
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