Saturday, June 30, 2012

Mario Balotelli You're Now Welcome for Dinner !

     After scoring the two goals in Italy's 2-1 defeat of rival Germany recently Mario Balotelli is now welcome for dinner in the home of most Italians.  It is very likely that many an Italian father would now be proud to have his daughter date the new Italian hero.  By my personal observations and life experience many an Italian father has expressly told his son or daughter, "'never disrespect me or your grandfather by bringing home a moulie."  This is not to suggest that every Italian shares these views.  That is not my point.  Anyone who disputes this sentiment is ill-informed or unwilling to admit the truth or unable to handle the implications flowing from the truth.  The truth hurts sometimes. 

     As a rights litigation lawyer I am always fascinated by how the arts and sports has a way of causing us to bridge the racial divide and bring about orgasmic-type happiness.   It appears that the joy of the moment and the immense sense of national pride has the effect of - if not deleteing the feelings of discrimination and bigotry from our consciousness - at least intoxicating our spirts to the point where we overcome our fear and bigotry.

     Are there any life lessons here ?  Absolutely !   Mario Balotelli is no less Italian than any other player on the Italian team.  His race and colour are totally irrelevant considerations with respect to any assessment of his worth as a person.  The Italian father who believes that it would bring him disrespect for his children to marry a person of African descent needs to sit down and look inside himself and try to find out - why ?   Racial discrimination and bigotry are both morally and intellectully bankrupt.  That father should ask himself - would I feel the same way if Mario Balotelli asked for my daughter's hand in marriage today ?  I am not a scholar.  I am not an expert.  I am just a little guy who thinks a lot.  It is my sense from my life experience and observations that many, many Italian parents would now welcome Mario Balotelli home for dinner !



Wednesday, June 27, 2012

Justice Tulloch Elevated to Court of Appeal

     On June 22nd, 2012 the Canada's Justice Minister announced the appointment of Mr. Justice Michael Tulloch to the Court of Appeal for Ontario.  Justice Tulloch, who formerly sat on the Superior Court in Brampton, replaces Mr. Justice Harry Laforme. 

     The appointment of Mr. Justice Tulloch is noteworthy because in addition to his outstanding qualifications and experience as a criminal prosecutor, defence lawyer and as a trial judge in one of Canada's bussiest trial courts, he is a man of African-Canadian racial background originally from Jamaica.  To the best of my knowledge Mr. Justice Tulloch is the first person of African descent to sit on the Court of Appeal for Ontario.  Bora Laskin was the first Jewish Chief Justice of the Supreme Court of Canada.  History will show that some were critical of his appointment but that at the end of the day he went on to become one of the most influencial jurists not just in Canada but in the common law world.

Sunday, June 24, 2012

Jews Yesterday African-Canadians Today: Diversity and Social Change in the Legal Profession

     Bora Laskin was one of the most talented and influencial jurists in the common law world by any standard.  He was also a highly accomplished legal scholar and labour arbitrator.  Bora Laskin possessed all of the skills and qualities which one would traditionaly expect of a lawyer. 

     However, with all of his skill and intellect Mr. Laskin had a very difficult time finding firms among Toronto's legal establishment in the 1930s who would hire him as an Articling Student -a mandatory practical placement which lawyers must complete as part of the licensing process. Mr. Laskin was Jewish.  In those days in keeping with the unwritten but well practiced policies Jews were for all intents and purposes not welcome in the legal profession.  In his publication entitled From Immigration to Integration: The Canadian Jewish Experience, Richard Menkis states, "In one glaring example just after WW II the Quebec Bar held its conference at a lodge that excluded Jews." One of the basis for exclusion of Jewish lawyers - especially among firms doing corporate commercial work - was that the clients were opposed to their hiring and they could not attract worthwhile corporate-commercial work.

     Jews were not alone in their exclusion from the legal profession.  Indeed, I recently came to learn that a group of Irish Catholics were forced to form their own firm, Holden, Day-Wilson as a direct result of their circumstances in the profession. 

     I do not profess to be an expert in these areas.  I will be the first to admit that I am no scholar and no expert.  History shows us that there are a wealth of other ethnic, religious and racial groups that have been similary excluded or discriminated against in the legal profession.  My goal here is simple and straightforward.  I wish to point out that discrimination and exclusion is not new to the legal profession.  It is not a phenomenon that has been thrust upon us by the advent of the increased numbers of African-Canadians, Asians and women who are joining the profession.  It has always been there.  The only difference is that the players or actors have changed.

Fast Forward to 2012:

     Today African-Canadian lawyers are disproportionatly unable to secure articling jobs of any sort and some observers have suggested that once qualified to practice law African-Canadian lawyers are disproporionately the subject of discipline proceedings.  Advocates for the status quo will argue that there are causes other than race for these phenomena.  On a micro-level there may well be deviations from the norm of exclusion or discrimination.  However, that arguement rings hallow in light of the historical experience of Jews and others in the profession.  Anyone who is unable to see the connection between the historical reality noted above and the current plight of lawyers of African-Canadian background in the profession today choses not to see it. 

     If anything - history shows us that the more things change the more they stay the same.  The reality is that Justice is not blind because the law deems her to be.  Justice can only be blind when we all believe in our hearts that all men are equal regardless of race and other irrelevant considerations such as race and religion.  The legal profession and the administration of justice is no more immune from discrimination than the rest of society.  Social change does not happen by accident.  Social change is the by-product of concerted and determined effort.  The reality is this.  Racial diversity in the legal profession and among our judiciary is a manifestation of social change.

Note:  This piece was written for the sole purpose of drawing attention to an issue of public importance and to enourage debate on that issue. 


Wednesday, June 20, 2012

Practical Tips for Retaining a Divorce Lawyer

The task of finding the right lawyer to handle one's divorce is a very challenging task.  Most individuals know very little about the myriad of laws which govern their family relationships and even less about how to go about finding the right lawyer to assist them.  The average family law litigant simply goes through the yellow pages or gets a refferal from a friend or family member.  Few family law clients think enought of conducting any research on the lawyer's approach and success rate.  The unfortunate result is that all too often family law clients end up in long, drawn-out and costly litigation with their assets substantially depleted along the way and all too often they end up representing themselves and being grossly disatisfied with the experience.  However, this unfortunate experience could be easily avoided.

Know your goals:

There is a myth that divorce and other family law disputes must be formally litigated.  Many family law litigants are quickly coming to understand that litigation is very costly and far from an effective dispute resolution method.  Accordingly, the first and perhaps most important thing that an individual seeking to go through a divorce or other family law issue ought to do is sit down and figure out what their goals and objectives are.  They can do this alone or they can do this with their spouse.  Ideally, it is best to do so with the other spouse.  This simple step can save one tens and often hundreads of thousands of dollars and the avoidance of needless stress and aggravation.  The client who has no awareness of their goals and objectives is more likely to end up in a long drawn out court battle when that likely could have been avoided if they took the time to identify their goals and develop a plan.

Research lawyers before
committing to one:

Like almost every other endeavour in life lawyering styles vary.  Some lawyers are skilled in litigation.  Some are not as skilled in litigation but may be skilled in dispute resolution and negotiation.  These are very different skill sets.  Hence, if what you are seeking is a collaborative approch to resolving your family law dispute it would make sense to seek out a lawyer who is skilled in this approach and has a reputation for a collaborative approach rather than a litigious one.  Do not be afraid to inform the lawyer of what you wish to accomplish, how you wish to accomplish it and inquire about their experience with a non-litigous and collaborative approach.

Consider the costs
financial and health wise:

More often than not family law litigants are ill-prepared for the staggering costs associated with their legal proceedings.  One of the reasons for this is rooted in their failure to first ascertain their goals and then take some time to seek out the proper lawyer for their case.  The norm is for each spouse to simply retain a lawyer and litigation is commenced.  In many  cases the actual cost of the litigation is deferred until family law assets are dealt with.  The cost differntial between a negotiated resolution and a litigation resolution is staggering.  It may be that what one really needs is a consent divorce and separation agreement rather than a muli-year, stress-filled and unpredictable court battle.  That is a decision that the client should make at the outset.

Saturday, June 16, 2012

Bail System Unfairly Criticized

     The recent barrage of criticism of the bail system in recent weeks by the mainstream media is unfounded and has the potential to further erode the fundamental tenet of the presumption of innocenc and the right to one's liberty until proven guilty.  Every day hundreds and more likely thousands of individuals are granted bail in the Ontario.  It is abundantly clear that incidents like the Eaton Centre incident - namely - an individual on bail committing a serious crime is a rare occurrence.  Most individuals on bail comply with their conditions without incident.  The dilema here is much like the popular sayting that it is better that two guilty men go free than one innocent man be wrongly found guilty.  There is a price for having fundamental values and principles like the presumption of innocense and regretably as the Eaton Centre incident illustrates that price can be tragic and painfull.


Sunday, June 3, 2012

Cunningham Successfully Appeals Disbarment at Appeal Panel: An Update

     Readers have expressed great interest in my series of posts on the fundamental importance that both the appearance and reality of impartiality plays in the legality of the decisions of both courts and tribunals.  Readers will recall that some time ago a Law Society of Upper Canada Hearing Panel disbarred Karen Cunningham and an appeal panel chaired by respected criminal lawyer, Mark Sandler overturned that decision.

     One of the grounds of appeal advanced by Ms. Cunningham's very able counsel, Mr. Andras Schreck, now Justice Schreck, was that the Hearing Panel showed a lack of independence when they simply "cut and paste" the bulk of Society counsel's submissions in their reasons. In the interest of clarity for all of my readers this is an allegation of a reasonable apprehension of bias.

     Mr. Sandler found that Hearing Panel's independence or appearance of independence was not undermined.  He also went on to say that it was unnecessary given his earlier finding that the Hearing Panel had committed legal error to determine whether the full-scale adoption of Society Counsel's submissions was legal error.

     It is clear from this decision that the fulsome adoption by a Hearing Panel of counsel acting akin to a prosecutor before them without any independent evaluation and analysis may constitute an act of reasonable apprehension of bias.

     Karen Cunningham was accused of the following particulars of misconduct in a Notice of Applciation dated March 6, 2008 in connection with 16 real estate transactions that closed between March 2002 and January 2006:

                     1.  (a)   knowingly assisting mortgage fraud,

                          (b)  failing to be on guard against being duped;

                     2.        failing to be honest and candid with lender

                     3.        acting for parties with conflicting interests
                                (in repsect of 14 of the 16  properties);

                     4.        abdicating professional responsibility and
                                failing to serve lender clients.

Ms. Cunninghamn admitted to the following misconduct at her conduct hearing but steafastly maintained her innocense with respect to the counts alleging that she "abdicated professional responsibility with respect to the 16 properties and knowingly assisted mortgage fraud: 

 -   1.  (b)   failing to guard against being duped;

 -   3          acting for parties with conflicting interests in respect of 14 properties;

-    4.         failing to serve lender clients in respect of all 16 properties.

Following a very lengthy hearing in which she is said to have been cross-examined by counsel for the Law Society of Upper Canada(L.S.U.C.) for about ten days the hearing panel found that Ms. Cunningham had knowingly assissted mortgage fraud and disbarred her.

Appellant's argument on appeal:

     The Appeal Panel''s decision listed the following grounds of appeal advanced by Mr. Andras Schrek, Ms. Cunningham's counsel on the appeal attacking the lower panel's reasons:

(i)    the reasons are so inadequate as to prevent meaningful review;

(ii)   the reasons adopt the L.S.U.C's written submissions word-for-word in a
 way that is incompatible with an independent evaluation by hearing panel
  of the evidence; and

(iii)   the reasons demonstrate legal misdirection in deciding the issue of

The Appellant did not challenge the lower panel's finding that she abdicated her professional responsibility in respect of all 16 properties.  The thrust of her position on appeal was that she never knowingly assisted mortgage fraud and that she did not fail to be honest and candid with her lender clients.

Hearing Panel Reasons found
to be fatally flawed:

     Ms. Cunningham testified at her conduct hearing and described her involvement and knowledge of each transaction with the trust of her testimony being why she did not know, suspect or advert to the risk that the transactions were fraudulent.  Counsel for the L.S.U.C. acknowledged in closing argument that she was not urging the panel to make a finding of actual knowledge and acknowledged material differences in Ms. Cunningham's level of involvement - "in some transactions the lawyer knew enough about the transactions that she was willfully blind or reckless as to the obvious signs of fraud...In the remaining transactions, the lawyer knew virtually nothing about the transaction only because she abdicated her professional responsibility to her staff...In some of the transactions she is guilty of both."

"The Hearing Panel accepts the submissions made by Ms. Rutherford that there is clear and cogent
evidence to support the finding of willfull blindness and or recklessness in respect to the specified 16 transactions and that accordingly, Ms. Cunningham knowingly assisted in the fraud and failed to
be honest and candid with her lender clients."

No analysis of distinctions in
knowledge and involvement:         

     The Appeal Panel found that the hearing panel engaged in no analysis of the very important distinctions noted above and this error was compounded by the panel's statement that it was accepting the L.S.U.C's submissions that there was clear and cogent evidence to support the finding of willful blindness and recklessness on every transaction when that was not their position at all.

Reasons not responsive to
key issues raised:
     Reasons must at least be responsive to the key issues raised noted the Appeal Panel.  They stated the following on this point:

"Of course, a hearing panel is not bound by the Society's concessions in closing argument.
 But when the appellant's testimony is dependent on the distinctions between the
transactions and the Society acknowledges that at least some of these transactions compel
a different treatment, the hearing panel must at least indicate what the appellant's
involvement was, and why it was able to find (despite both parties' positions) that the
appellant was willfully blind and/or reckless respecting every transaction."  (at para 20)

 "As for the "why", the hearing panel appears to find that the appellant was aware of the
"red flags" on every transaction (signalling to her that they were fraudulent) and, at the same
time, appears not to reject the appellant's position that she erroneously relied on 
others, and in most cases only became involved at the end of the file.  It is entirely
unclear what the hearing panel did or did not accept as the underlying facts.  As noted earlier,
given the positions of the parties, this was of critical importance.(at para 21)

Hearing Panel "cuts and pastes"
L.S.U.C.'s factum in

     The Appellant complained on appeal that the hearing panel effectively "cut and paste" word for word the L.S.U.C.'s factum in the portion of their reasons entitled "Submissions and Analysis".  The Appeal Panel noted that the hearing panels 40 page reasons incorporated the entire L.S.U.C's factum and that portion comprised 21 pages.  The panel also attached the L.S.U.C's  written outline of the evidence to its reasons as Exhibit "C" and indicates that it was helpful to the hearing panel in reviewing the evidence and preparing its reasons.

  "After careful consideration, we have concluded that the hearing panel's independence or the appearance of its independence was not undermined." ( at para 29)

"Given our earlier conclusion that the hearing panel's reasons disclose reversible error, it is unnecessary to decide whether the word-for-word adoption of the Society's 71 paragraph factum and 72 page outline of the facts constitutes reversible error." (at para 38)            

     In addition to adopting the the facts as put forward by the L.S.U.C. in their factum the hearing panel also adopted their legal submission that "The member's belief that he had not acted dishonestly and certainly did not intend to decieve anyone, has no bearing on the panel's determination of his subjective awareness."  The Appeal Panel found that indeed such evidence was highly relevant evidence on this issue and constituted legal error.


     The appeal is allowed.  The findings on particulars 1(a) and 2 must be set aside.  Since revocation of the appellant's license was tied, in large part, to those findings, the penalty must be set aside as well.  The findings on all other particulars are upheld.

Karen Rosalee Caroline Cunninghma    v.  The L.S.U. C. 2012 ONLSAP 15 (CanLii)