Saturday, July 28, 2012

Olympic Games: "Have nations" vs. "Have not nations" - We can do better

     In years past I always looked forward to the Olympic Games - summer or winter.  They say that age brings knowldege and wisdom.  I don't know about you but I find that my overall interest and support for the Olympic Games is rapidly declining as I age.  Last nights opening ceremony left me with the feeling that the Olympic Games is no more than an event for the "have nations" or those who believe themselves to be "have nations" to compete and party lavishly among themselves. 

     Don't get me wrong.  I am an avid sports fan.  I love sport and competition.  As a young man I played hockey, soccer and I boxed competively until my first year at McGill University.  As a result of my exposure to compettitive sport I know perhaps better than the average person that developing high level atheletes is less a function of natural ability than a function of having the means to invest in training and development.  Germany, Japan, U.S.A., China and other "have nations" produce successful athletes because they have the economic means to do so.  Countries like Dominica and the Phillipines don't produce successful athletes because they do not have the means to. It is that simple. 

     The Olympic Games, the Olympic spirt and sports fans would be better served if the I.O.C. in collaboration with the "have nations" was to place greater emphasis on ensuring that the "have not nations" have the means to train and develop their athletes.  This little step would increase the level of competition and would ensure the continued survival of the Olympic Games.  Competition where the "have nations" win consistently and the "have not nations" are merely happy to be at the party is not what I thought the Olympic spirt was all about.  There is as far as I can see no justifiable reason why the I.O.C. and the governments of the "have nations" are unable to ensure that the "have not nations" are better able to train and develop their athletes. 


Thursday, July 19, 2012

Gun Violence Linked to Absence of Equality of Opportunity

     Gun violence in Toronto will not stop through increased police presence.  Gun violence in Toronto will not stop with harsher sentences for those convicted of such crimes.  Gun violence in Toronto will not stop by the City of Toronto or any other level of government handing out a few dollars so that one or two individuals in the so called "high crime neigborhoods" can have a summer job for two months.

     Gun violence in Toronto is a manifestation of the poor policy decisions which our policy makers have continued to make in spite of the overwhelming evidence that there is a glaring absence of equality of opportunity for the vast majority of Toronto's African-Canadians.  Some months ago I wrote a post stating that I have never seen an African-Canadian firefighter in Canada.  Believe it or not this is a fact.  I have never.  Firefighting is a very stable and well paying job.  The reality is that these stable and well paying jobs are not available to African-Canadians.  A few years ago I encountered a young African-Canadian man working as a verbatim reporter at an Examiner's Office.  He informed me that he had a Bachelor of Arts Degree from York University and had been trying to join the Toronto Police Service first as a police constable and then as a court officer without success.  The fact is I personally know individuals of European descent without high school diplomas who are court officer supervisors.  Have you ever come across an African-Canadian paramedic in Toronto ?  I have never.  Within the past year I have come across at least three African-Canadians who have obtained their teachers certification in Ontario but for some reason are unable to obtain a position with any of the numerous school boards in the Greater Toronto Area.  As a lawyer of African-Canadian descent I am perpetually bombarded with applications from African-Canadian lawyers who inform me of their struggles in finding articling positions with law firms.

     The absence of equality of opportunity is not limited to employment.  There is a similarly glaring absence of equality of opportunity in terms of the resolution of both civil and criminal matters involving African-Canadians in our courts.  African-Canadians get tougher and longer sentences than anyone else even for the same crimes.  This is not E.J. Guiste's conclusion.  This was the conclusion arrrived at by the Ministry of the Attorney General for Ontario's own study entitled Report of the Commission on Systemic Racisim in the Criminal Justice System.   Have you ever heard of an African-Canadian being awarded compensation for the violation of their rights at the hands of the police in Ontario's Superior Court of Justice ?  I have been practicing law in this jurisdiction for close to twenty years now and I have never.  I have observed that from time to time the Human Rights Tribunal of Ontario has awarded compensation to African-Canadians on racial profiling cases.  However, when one considers the number of such claims which this tribunal dismisses without a hearing even the successes are insignificant.  How can it be that a group of people who public policy and case law in Canada has recognized are victims of discrimination and unequal treatment by police are somehow unable to accesss redress for the wrongs committed against them in the courts which their tax dollars help fund ? (see for example R  v. Brown - R  v. Parks - R  v. Spence)  Could it be that - assuming I am correct - that this reality effectively kills the spirit of these so called "at risk youth"and their parents and conveys to them that they can not trust the administration of justice to protect them ?

     The absence of equality of opportunity is not limited to employment and access to justice.  There exists a glaring absence of equality of opportunity in all levels of education but especially at the elementary and high school levels.  No intelligent person can argue that the quality of education which the so called "at risk" youth receive is anywhere equal to what the mainstream receive.  The quality and competence of the teachers is inferior.  The amount of access to extra-curricular activities is inferior.  Is there a link between the disproportionately high incidence of African-Canadian students dropping out of school and this absence of equality of opportunity in education ?  The fact is that young people who are out of school and have no marketable skills are more likley to turn to crime than those in school. 

     In conclusion, the decision by our policy makers to close their eyes and attention to this reality is unacceptable and is not in our collective best interests.  The Penn State/Sandusky-type approach being employed by our policy makers does not work.  In the same way that the now deceased Penn State head coach failed Mr. Sandusky's victims our policy makers are failing not only the so called "at risk" youth but all Canadians.  Equality of opportunity for all is the small price that we as a society must pay for a safe and just society.


Monday, July 16, 2012

Written Examination for Discovery:Economical & Effective

     While in California a few years ago I learned a most valuable little lesson.  I was introduced  to written examinations for discovery.   Rule 35 of the Ontario Rules of Civil Procedure provide for written examination for discovery.  I have since found that the time spent preparing for the oral discovery and then attending and asking the questions exceeded the time spent drafting the written questions. I can typically draft 100 - 150 questions within five hours or so.  Once those questions are drafted they are served on defence counsel and that is the end of my examination until I receive their answers in a sworn affidavit.  Compare and contrast this to the 5 hours plus of preparation for an oral discovery followed by additional 5 hours plus of oral discovery and add to this the examiner's attendance fee and the cost of the transcripts.  The written discovery can easily be done for under $1,500 while the oral discovery will easily cost double that plus the cost of the examiner's attendance fee and the cost of the transcript.  At the end of the day you are looking at $1,500 compared to a figure close to $5,000.  Of course,  this cost differential is nothing for lawyers representing defendants but significant when you are asserting the rights of individual against a corporate defendant or the state.

     Like any other aspect of trial preparation, written examination for discovery will only be successful if properly planned and executed.  Organize your questions into categories which relate to the material facts asserted in your statement of claim.  For example, under a category entitled "general backgroud" I like to ask questions going towards establishing the party that is being sued, insurance coverage for the claim and if it is an employment claim questions establishing the employer-employee relationship, tenure and the reason communicated for the dismissal.  Where the action involves one or more causes of action I will divide the questions into those causes of action.  For example, if it is negligence claim I will ask a series of questions under a subject-headed "negligence".  Where the claim involves negligence in terms of the acts and omissions of an employee or agent in conducting for example a workplace investigations or the like I make it a point to have the employer or their representative ask specific questions of the investigator.  It has been my personal experience that defence lawyers have a tough time with these type of questions and written examination for discovery generally.  It seems to make them work for their money and this is exactly what you want as a plaintiff lawyer. 

     The other bonus about written examination for discovery is that it is much easier and significantly more economical to prosecute undertakings and refusals since your answers are in the form of an affidavit and therefore you will not need to provide a transcript to the court, the defendant and for yourself.  Again, this is a huge saving for lawyers representing ordinary individuals.  In my experience, the cost of transcripts alone for such a motion can easily be $2,000.


Thursday, July 12, 2012

The Right to Re-Examine Your Client on Discovery

     I can not count how many times I have sought to exercise my right to re-examine my client at a discovery only to be confronted by friendly and sometimes not so friendly resistance and a demand for authority for this right.  Surprisingly, most defence counsel that I have encountered in civil litigation in this jurisdiction are oblivious to this right provided by Rule 34.11(1) of the Ontario Rules of Civil Procedure.

     The right to re-examine on discovery is similar to but arguably broader than the right to re-examination in a trial setting.  While re-examination at trial is dependent on and limited to the content of the cross-examination, the right to re-examination on an examination for discovery should intuitively be broader for two reasons.  The first reason deals with the purpose and objective of discovery, namely, fact-finding.  It would be inconsistent with this objective to allow a party to limit its examination to those points which assist its case and effectively foreclose the other party's right or ability to bring out all of the relevant facts at the first opportunity to do so. The evil in such an approach is amplified by the fact that the Rules provide for the reading-in of another party's evidence from discovery at trial.  A proper re-examination can effectivly nullify any admission or gain by your oppent because you could argue that your opponent must read-in the entire examination. Accordingly, it is unlikely that your opponent will attempt to read-in at all.  The second reason flows from the fact that unlike trial you would not have had an opportunity to conduct an examination-in-chief on your client.

     Not surprisingly, there does not appear to be a wealth of cases touching on the scope of re-examination in discovery.  The one case I was able to find - Roumeliotis   v.   David 2004 CanLi 172093(Ont.S.C.) suggests that the proper scope of re-examination in the discovery context is limited to expanding and claryfying testimony from the other party's examination.  It is my sense that this holding may well be limited to the specific facts of that case.  In that case - which was a personal injury case - there appeared to be a single theory of liability or cause of action advanced.  In cases involving multiple theories of liability or causes of action that holding would arguably tend to be inconsistent with the over-all policy of seking the most cost-effective way of resolving disputes. In my experience the sooner the parties get to know the full extent of the case they have to meet the greater the chances of settlement. Hence, allowing a party to tell their full story can not hurt.  That party can not read-in its own evidence at trial.

Monday, July 9, 2012

Employers Beware of Punitive Damage Claims

     Employers who believe that they are  immune from an award of punitive damages flowing from the dismissal of an employee should re-evaluate their practices in light of Pate Estate  v.  Galway-Cavendish and Harvey Townships, 2011 ONSC 6620.  In Pate Estate the trial judge's initial award of $25,000 for punitive was sent back for re-trial on the question of the quantum of the award and was increaased to $550,000 by the trial judge following the re-trial.  The conduct on the part of the employer which resulted in such an award is something all employers ought to take serious note of and avoid.  This post is concerned only with this aspect of this significant decision.

 Basic Facts:

      John Gordon Pate worked as the Chief Building Official for the Township of Galway and Cavendish for roughly 9 years.  He subsequently worked as a building inspector for the amalgamated Townhsip of Galway-Cavendish and Harvey for some three months before being summarily dismissed from his employment on March 26, 1999.

False allegation of
criminal conduct:

     The employer told Mr. Pate that discrepancies had been discovered with respect to permit fees that had been paid to him but not remitted to them.  Mr. Pate was not provided with particulars; nor was he given an opportunity to respond to the allegations.  Instead, Mr. Pate was told that the matter woudl not be reported to the police if he resigned immediately.  Mr. Pate did not resign, the matter was reported to the police and charges were laid.  Following a four-day criminal trial Mr. Pate was acquitted of all charges.

Key Facts:

Withholidng exculpatory

     Mr. Beaven, who was emplolyed by the employer, called the O.P.P.(Ontario Provincial Police) on April 14, 1999 and subsequently met with Officer Greg Stokes on April 19, 1999 and on April 20, 1999 Mr. Bevan provided Officer Stokes with statements he had prepared in relation to missing building permit fees.  At the criminal trial, evidence showed that Mr. Pate had in fact recorded receiving fees for one of the properrties under a name different from that of the property owner because he received the fees from the owner's son-in-law.  Mr. Pate had a note of this in a journal he kept.  However, Mr. Beaven seized the journal when Mr. Pate was terminated and did not forward it to the police.  Evidence led at the criminal trial also revealed that some of the property owners had in fact paid their fees at a satelite office operated by the employer prior to amalgamization and that many of the files for that office had been lost.  The employer was aware of these missing files but failed to inform the police of this crucial fact.  It also emerged during the criminal trial that in 1995 the employer had investigated one of the allegations and found no wrongdoing on the part of anyone.  This too was not revealed to the police.  Officer Stokes testified that had he known about the withheld information he would not have laid the charges.

Trial judge's rationale
for punitive damage award:

                         "I find that the actions of the Municipality in
                          withholding exculpatory evidence in this matter to
                          have been an arbitrary decision made by
                         one of its officers and which amounted to
                         reprehensible conduct.  Had the disclosure
                         been made, no criminal charges would have
                         been leveled against the Plaintiff in this matter. 
                         Such conduct, to this court, is a departure to
                         a marked degree from ordinary standards of
                        decent behaviour.  In ths case compensation
                        for wrongful dismissal does not answer the
                        fact that this Plaintiff's career as a municipal
                        official was destroyed as a result of the actions
                        of the Defendant.  The actions of the Defendant
                        were a contributing factor to the end of
                        the Plaintiff's marriage and perhaps even
                        to the business that he operated with his
                       spouse.  The Plaintiff suffered hummiliation in
                        the eyes of the public...." (supra at p.2)

Advice to employers:

     It does not pay to be arbitrary or high-handed in the manner of effecting a dismissal.  If you are going to assert cause you had better have the evidence to back it up.  Conducting any less than a fair and thorough investigation is always a bad idea - particularly when it is done by your employee(s).  Assisting the police in a criminal investigation is also not recommended.  If you as an employer are obligated by your rules or regualations to conduct an internal investigation before dismissal or calling in the police - it is not recommended that you state publicly that you discharged this duty when in fact you did not.  When it comes to avoiding punitive damage awards honesty and good faith is still the best policy. 

Note:  This piece is written for the sole purpose of drawing attention to an issue of public importance, namely, punitive damages and how employers can curb their conduct to avoid them.