what’s inside this issue · lexis advance quicklaw training session we will be holding a one-hour...
TRANSCRIPT
November IssueThank you to all the contributors
and advertisers for supporting this month’s edition of the Snail.
Want to contribute to the next issue?
The deadline is November 25, 2019
Send submissions to Karen Hulan: [email protected]
For advertising inquiries contact: [email protected]
The appearance of an article or advertisement in the Snail is not a warranty, endorsement or approval by the Middlesex Law Association of
the products, services or opinions therein.
What’s inside this issueLIBRARY NEWS by Cynthia Simpson & Shabira Tamachi
FALL CIVIL BENCH AND BARWIPE THAT HARD DRIVE BEFORE YOU TRASH IT by David Canton
FAMILY RESPONISIBILITY OFFICE UPDATE by Jennifer Wall
PROVINCIAL CUTS HIT COMMUNITY LEGAL SERVICES by Doug Ferguson
REPORT ON PAST CPD PROGRAMS By Paula Puddy, MLA CPD Director
COURT ACTION FOR PUNITIVE DAMAGES IN NO FAULT INSURANCE CLAIM DISMISSED by Andrew Murray
MEMBER UPDATESWILL NOTICESEXECUTIVE & COMMITTEES
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www.middlaw.on.ca
NOV 2019 | YOUR TRUSTED MIDDLESEX COUNTY NEWS SOURCE ON ALL TOPICS LEGAL | VOLUME 49 | ISSUE 09
Fall Social BowlSee Page 16
2NEWS
Missing Book Alert - Cannabis Law
Does the image here look familiar? Are you currently thumbing through this book by Bruce A. MacFarlane, Q.C. at your desk? Well, you inadvertently
took it without signing out the card on the inside front cover. This book costs $150.00 plus tax, shipping and handling. We cannot afford to replace it within our current book budget, so please return it, no questions asked. Seriously, if you have a library book and you suspect you forgot to sign it out, just call us so we know, or return it if you are done with it (or have had it for more than a week). Heck, if you're still using it, check with us because we may be able to extend your loan. We just need to know where our books are.
Remembrance Day Courthouse ClosureA reminder that the courthouse will be closed on Monday, November 11th and the MLA Practice Resource Centre will also be unstaffed that day. Members wishing to access the space that day will need to sign in at the front entrance of the courthouse with their ID and use the after-hours code to unlock the door to the MLA PRC.
COLAL 2019Each fall, we gather with our colleagues in the other county and district law association libraries to discuss issues we have in common, participate in legal product demonstrations and get an update
on the changes coming to the organization overseeing the libraries in the province. Here are a couple of highlights:
Preservation BasicsIona McCarith, Archives Advisor from the Archives Association of Ontario presented us with an introduction to preservation. She offered up some guidelines regarding environmental monitoring for archives. She related the importance of controlling temperature and humidity levels, providing appropriate storage, how to care for and handle archival materials, as well as information on the longevity of preserving information on modern media. Fun fact: CDs and DVDs have a lifespan of 10-50 years!
LIRN Katie Robinette, Executive Director of FOLA provided some insight into the latest developments of LIRN (Legal Information and Resource Network). LIRN is the organization being developed to oversee the operation of the Ontario county and district law association library system. The stakeholders, the LSO, FOLA and the Toronto Lawyers Association, came together to form a draft shareholders agreement that is to be discussed and voted upon at the FOLA Plenary Session on November 15, 2019.
Lexis Advance Quicklaw Training SessionWe will be holding a one-hour Quicklaw training session in our Mayer Lerner Lounge on Tuesday, November 26th, beginning at 1:00pm. Lexis Nexis trainer Gordon Brough will take attendees through the products available to our
members on the library computer and provide search tips and updates. This session is eligible for CPD credits. There is no charge for the training session, but we do ask that members register so we have an idea of the number of attendees. Please email us at [email protected] to reserve a spot in the session.
Library Christmas PartyIt’s hard to believe that we are nearly up to the holiday season already. Of course, that means that the MLA Library’s all-day party extravaganza will soon be here. Please mark your calendars for Thursday, December 19th and plan to come by the library at some point during the day to enjoy coffee, cider and a wide selection of yummy baked goods, all prepared by your library staff: Cynthia, Evelyn and Shabira. It’s our way of thanking you for using our library services over the past year and to introduce you to library benefits you may not currently be using. As we say, come for the books - stay for the cookies!
New BooksBarker, Susan and Anderson, Erica. Researching legislative intent, Irwin Law
LSO. Practice gems: administration of estates 2019.
LSO. Practice gems: Probate essentials 2019.
MLA. Semi-annual real estate luncheon.MLA. Quick & Dirty Personal Injury Luncheon.Watt & Fuerst. 2020 Annotated Tremeear's Criminal Code, Thomson Reuters
Library NewsContributed by: Cynthia Simpson and Shabira Tamachi [email protected]
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your trusted middlesex county news source on all topics legal NOVEMBER 2019
Missing BooksAllen, John. Estate planning handbook -4th ed.Bolton, Michael. Defending drug cases -4th ed. (2016)Bourgeois, Donald J. Charities and not-for-profit administration and governance handbook --2nd ed.Goodis, David. 2012 annotated Ontario Freedom of Information & Protection ActHull, Ian. Challenging the validity of wills -2nd edLavender, Stephen. 2015 annotated Ontario Human Rights CodeHull, Ian. Macdonell, Sheard and Hull on probate practice -5th ed. (2016)Johnston, David. Canadian securities regulation –3rd ed.
MacDonald, James. 2015 annotated Divorce Act.
MacFarlane, Q.C., Bruce A. Cannabis law.
OBA. Business agreements: practice and precedents.Oosterhoff, Albert H. Oosterhoff on wills --8th edition (2016)n/a. The Annotated 2015 Tremeear’s Criminal Code. Rintoul, Margaret. Practitioner’s guide to estate practice in Ontario -4th ed.Shearer, Gillian. Law and practice of workplace investigations.
When workplace disputes become legal challenges, where do you find team depth?
siskinds.com/investigationsInternal Investigations | Mediations | Staff Training519.672.2121
Siskinds lawyers Beth Traynor and Jennifer Costin give you the team depth and outstanding legal skills required to conduct bias-free workplace investigations, mediations and training. With decades of experience helping to resolve complex and sensitive challenges, these two legal minds, backed by one firm, are among Southwestern OntarioOntario’s leaders in workplace dispute resolution.
Local educator and Métis artist, Brenda Collins will attend the MLA Practice Resource Centre on November 20, 2019, to create a Medicine Wheel installation for the centre. Brenda Collins has guided participants in the creation of nearly 100 glass mosaic medicine wheels throughout southwestern Ontario including for school boards, the London Public Library and Western University. The MLA Medicine Wheel is sponsored by Hamoody Hassan. Hamoody will graciously provide food and beverages throughout the day available to those who drop by to see, and participate in, the creation of our Medicine Wheel.
Photo of Brenda Collins from London Public Library Facebook page. Credit to photographer.
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MotionsCover Sheets. Do not attach a cover sheet or cover letter to your motion confirmation form. Do not send multiple confirmation forms.
Motion Record. List the date that the motion is returnable on the front cover of the motion record.
Material to be Read. Provide specifics on the motion confirmation form about what material should be read including the date of motion record (as there may be more one motion record in the file) and affiant of any affidavits that should be reviewed that are not already filed in the main motion record.
Amended Confirmation for Motion Forms. Send an amended motion confirmation form when changes are expected.
Time Estimates. Be realistic about time estimates. Do not overestimate the time required for the motion particularly where the matter will be an adjournment request rather than an argued motion.
Short Motions vs. Special Appointments. Motions are limited to 60 minutes per file not 60 minutes per motion. If a motion and a cross-motion are returnable on the same date then there there will be a maximum of 60 minutes available. Anything longer requires a special appointment.
Late Motion Confirmation Forms. In accordance with the local Practice Direction, a motion will not be heard if the motion confirmation form is sent after the specified time frame.
Trial SchedulingFixed Trial Dates. Given the limitations on civil court time, there cannot be more than one fixed-date trial scheduled at
the same time. Requests for a fixed date must be made jointly to Regional Senior Justice Thomas. The correspondence must explain the basis for the request and that all counsel agree to the fixed date and understand that it is peremptory. Copy Justice Grace and Joy Beattie (Trial Coordinator) on the letter.
Pre-Trial ConferencesTrial Time Estimates. If there is a change in the trial time estimate at the pre-trial conference then please advise the Trial Coordinator as soon as possible. If there are significant increases in the trial time estimate after the assignment court, it will be difficult to accommodate the trial on the original list.
Long Pre-trial Conferences. Counsel are welcome to ask for pre-trial conferences longer than one hour. Please make that request at assignment court.
Adjournments. The Trial Coordinator can adjourn pre-trial conferences only if the proposed return date is greater than 90 days before the proposed trial date. Otherwise, motions for an adjournment must be brought before Justice Grace or his designate.
Motions to Adjourn Trials Procedure. Counsel are reminded that motions to adjourn trials must be brought before Justice Grace or his designate.
Expert Reports. If you have diligently followed up with experts but still have not received reports within the prescribed timelines then bring this to the court’s attention in your motion material.
Trial Pretrial Motions. Counsel may consider dealing with appropriate motions at the beginning of the trial, in the absence of
the jury. If so then counsel should discuss ahead of time whether certain motions (expert qualification, for example) can be dealt with as preliminary matters and bring this to the attention of the trial judge. Ideally, please write to the Trial Coordinator before the Monday of jury selection as this will assist with time estimates.
Running Lists. The docket number does not indicate the order in which matters will be called. Whether a matter proceeds is determined by a number of factors including the availability of judges, the length of trial and any conflicts (for ex. whether the available judge conducted the pre-trial conference). Do not contact the Trial Coordinator. The Trial Coordinator will call counsel as soon as it is known whether the trial will proceed.
Rule 7 Basket MotionsProcedure. Once filed, materials are allocated to judges sitting that particular week. If there are issues with the timely return of these motions then please contact the administrative assistant at the Judges’ Chambers to inquire into the status of the motion.
Trial Coordination UnitCourt Schedules. Please consult the Southwest Region – Regional Court Schedules which are posted online. The Trial Coordinator also provides updates to one representative in local firms. Please ensure that the representative from your firm distributes information throughout the firm.
Staffing. The Trial Coordination Unit was previously staffed by three individuals but is now staffed by two people.
Fall Civil Bench And BarThe following notes were taken at the fall Bench and Bar Meeting between members of the bar, Justice Grace and Trial Co-ordinator, Joy Beattie. The notes are provided as a courtesy service to MLA members and are not official minutes of the meeting.
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A recent University of Hertfordshire study found that the majority of second-hand hard drives contain previous owner’s data.
They purchased 200 used hard drives and found that 59% still contained data from previous owners.
ZDNet has the details of the findings, and more importantly, 14 ways to wipe them effectively.
Every electronic device has some sort of memory that can potentially contain sensitive, confidential, or personal information. That includes computer hard drives, solid-state drives, thumb drives,
photocopiers, phones, cars, watches, smart TVs, and the list goes on. Whether we are disposing of them, selling them, or returning them, we need to effectively wipe them clean.
For a personal device, it risks leaking personal information of yourself or your family that could be used against you in some way.
For business devices, it risks leaking confidential information about the business or its customers and possibly violates privacy laws or confidentiality agreements.
If the devices are being recycled, destroying them with a hammer and punch, or drilling holes in them is very effective.
But there are also several less destructive options to choose from.
Just make sure you turn your mind to it and do it right.
This article was originally posted on the HP Privacy and Tech Law Blog (www.hptechlaw.com/blog).
To receive weekly updates on the latest technology and privacy law issues, subscribe to Harrison Pensa’s Top Ten in Tech Law newsletter at www.hptechlaw.com/top-ten-in-tech-law.
Wipe That Device Before You Trash It Contributed by: David Canton, Harrison Pensa
If you have any issues or concerns regarding the
Middlesex court facilities, operations, judiciary, etc.,
let them be known!
Send all concerns MLA Bench & Bar representative:
Karen Hulan 519-673-4944
Questions & Comments
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your trusted middlesex county news source on all topics legal NOVEMBER 2019
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Jessy Hawley CPA, CGA, CFF, CIP
Gary Phelps CPA, CMA, CFF, CFE
Ron Mar�ndale CPA, CA, LPA, CBV, CFF
advisoryservices@davismar�ndale.comLondon: 519.673.3141Toronto: 416.840.8050
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On October 22nd, local family law lawyers met the semi-mythical Director of the Family Responsibility Office in person.
Assistant Deputy Minister Susan Erwin and Legal Director Kikee Malik visited London to address the Middlesex Family Lawyers Association about changes in the Family Responsibility Office and tips and tricks for crafting enforceable orders and agreements. Their presentation slides are available upon request from the MFLA.
FRO is the leading source of complaints about the Ontario government (unsurprisingly). They have approximately 160,000 active cases, and in London only 46% of cases are in compliance. On September 17, 2019 FRO implemented significant changes to their processes. While their enforcement tools remain the same, FRO is shifting to a more proactive and discretion-based model of enforcement.
Significant changes include:
- The legal department will now be reviewing orders for enforceability as they are registered. If there are issues then payors and recipients will be contacted within a few weeks of the order arriving at FRO.
- Within 10-20 days of an order being made or an agreement being filed, payors and recipients should receive a call from the FRO introducing them to the program and discussing options for processing payment. Parties will also have the opportunity to flag expected issues with FRO proactively.
- Cases will now be assigned to Case Management Officers (CMOs) based on the type of enforcement needed, rather
than randomly based on postal code (i.e. cases in compliance, difficult cases, cases requiring investigation, etc.).
- The goal is to empower CMOs to make decisions in the context of the specific case, rather than being rules-bound (i.e. considering the enforcement actions most likely to be successful versus applying a specific sequence of steps).
- CMOs will now be expected to develop local expertise, so that local events (i.e. a company going on strike) can lead to active engagement with payors and recipients who are affected.
- CMOs will now receive an alert when a payment is missed, so that they can take proactive enforcement action rather than waiting for a party to reach out.
- The finance department is now embedded into the case management system. Finance officers will now be able to communicate directly with parties in order to explain more complex situations.
FRO is encouraging parties to contact it to sign up for FRO Online, a new web-based tool that allows parties to communicate with FRO, upload documents and view and print payment records. Parties must contact FRO to be sent a registration package.
With respect to the drafting of support orders, lawyers are encouraged to use the templates provided in O. Reg. 454/07, the Recommended Standard Terms for Support Orders. Common issues that present a barrier to enforceability include:
- Support contingent on an event (i.e. moving out of the matrimonial home). If proof is provided FRO may be able to enforce, but if the event is too remote or too unclear, the order will not be enforced.
- Specifying that expenses will be
“shared” or “maintained” – everything should be framed as an obligation to “pay”.
- Lack of specificity when describing the s. 7 expenses to be shared (see the recommended terms in the regulation, and consider including a list of expenses to be presumptively shared as well as the general s. 7 language).
- Consent requirements prior to contribution to s. 7 expenses. While FRO can investigate and verify consent, this adds considerably to the time required for the expenses to be added to the payor’s account.
- Failure to comply with the terms of s. 13 of the Child Support Guidelines and/or s. 1(1) of the Family Responsibility and Support Arrears Enforcement Act.
- Expressing the amount of support as “per the Child Support Guidelines” or as a percentage of income rather than as a specific amount.
In order to craft a good support order, lawyers are encouraged to include the following:
- The legislation providing jurisdiction for the order (i.e. the Divorce Act or the Family Law Act).
- The names and dates of birth of the children, if a child support order.
- The amount of support and the income on which it is based.
- The commencement date of support, the frequency of accruals (i.e. monthly), and the termination date of support, if any.
- For s. 7 expenses, identify the expenses and the parties’ shares expressed as percentages (not described as a “proportionate share”) and include an obligation to “pay” rather than to “share”.
Family Responsibility Office UpdateContributed by: Jennifer Wall / Harrison Pensa
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your trusted middlesex county news source on all topics legal NOVEMBER 2019
- On a variation or a retroactive order, fixing the amount of arrears (if any), and a payment schedule including amount, commencement date and frequency.
On Motions to Change, FRO is not a party but should be served with the Motion to Change if it includes enforcement relief or if the payor wants
FRO to consider exercising its discretion in compelling circumstances. If a payor seeks a stay of enforcement then that motion must be served on FRO.
FRO has also established a Resolution Unit that reports directly to the Director. Clicking the “Contact the Director” box on the FRO main webpage will send a message to the Resolution Unit.
November 2019 Middlesex Law
Association Newsletter
Want to contribute to the next issue? The deadline is November 25, 2019
Potential topics for submissions include:
Send your submissions to Karen Hulan: [email protected]
The Snail welcomes articles from MLA members in Word format, along with photos, headshot and headline. For clarity and readability, we encourage submissions in the range of 200-500 words, with a maximum limit of 1000 words for news and opinions, and a limit of 2000 words for articles on law and legal issues. At
the request of the contributor, any submissions shortened in this way can also be published with a link to the full article to be obtained directly from the author.
· News, the promotion of an upcoming event, a review of a past event
· Recognition of someone in the legal community
· Opinion and letters to the editor
· Discussion of a legal issue & case reviews
· Practice tips
PublisherKaren Hulan
519-673-4944 [email protected]
EditorsCynthia Simpson
519.679.7046 [email protected]
Shabira Tamachi 519.679.7046
DesignCarve / Jason Recker
519.777.7196 [email protected]
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This past six months have seen developments dramatically impacting Ontario student legal clinics, whose role is to help low income persons who do not qualify for legal aid. Community Legal Services at Western Law has been hit by these developments, and our capacity to provide access to justice has been diminished as a result.
Ontario student legal clinics, including CLS, are facing cuts of 15-20%. Fewer students will be given the opportunity for experiential learning, and fewer low income persons will receive representation. The courts will be even more crowded with self-represented persons.
1. Legal Aid Cuts in OntarioFirst, the Ontario government has taken steps to reduce access to justice for low income persons by reducing funding to Legal Aid Ontario by 30%. LAO funds Ontario’s student clinics, providing the vast majority of their funding. LAO announced in mid-June that student clinics will suffer funding cuts of 10% retroactive to April 1.
The province’s cuts will result in more self-represented persons in the court system, which in turn will cause more delays and more costs. Studies in the US, UK, and Australia have shown that for every dollar spent on legal aid, expenses in other spending areas like health care are reduced by an average of $6.00. If this holds true in Ontario then
the government will increase its overall spending and increase its deficit by making these cuts.
2. Student Fee CutsSecond, the Ontario government is taking a second swipe at student clinics with its student fee opt-out policy. Student fees are the second largest funding source for clinics. Post-secondary students are now able to opt-out of “non-essential” student fees. Interestingly, varsity sports are considered to be an essential service.
Student fees are paid to each university student council, which in turn uses it to fund student services, including student legal clinics. The line of thinking behind the opt-out policy is similar to an Ontarian thinking “I don’t have kids in school, so I’m going to opt out of paying education taxes.”
At Western, students pay about $5.71 per student for CLS, which is about the price of a large pumpkin spice latte at Starbucks. About 20% of students opted out of paying fees for CLS.
Impact on CLSAs a result of these and other cuts to our budget, Community Legal Services has been forced to reduce its criminal practice by over 30%. In addition, we no longer provide the following legal services:
• Wills and powers of attorney
• Immigration (permanent residency application for Western grad students)
• Criminal Injuries Compensation Board applications
• Human rights.
CLS will continue to provide the following services:
• Criminal law
• Landlord and tenant
• Family law
• Small Claims Court
• Academic appeals at Western and Fanshawe
• Mediations
• Public legal education
• Notary services.
All of us at CLS appreciate the support of the London bench and bar. We will need your support even more in the coming months. We will maintain our commitment to access to justice, and to provide excellent service to low income persons in the London community.
Provincial Cuts Hit Community Legal Services
Contributed by: Doug Ferguson, Community Legal Services Clinic, Western University, Faculty of Law
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your trusted middlesex county news source on all topics legal NOVEMBER 2019
4:30 pm | December 12, 2019LIVE JAZZ BAND
The Middlesex Law Association
M L A J a z z y Christmas S o c i a l
Chaucer's 122 Carling S t r e e t
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Report on Past CPD ProgramsContributed by: Paula Puddy, MLA CPD Director
The Women’s Innovation & Networking Event (WINE)WINE was held on Friday, September 25, 2019 with 70 attendees! The focus of this fall’s CPD program was wellness, managing stress and balancing work and life. Thanks to Frances Brennan, a recently appointed federal crown, and Louise Mimnagh of Mimnagh Law for co-chairing the networking event.
Here is what our wonderful presenters had to say:
Catherine Bruni (Lawyer, Siskinds LLP)
1. It is virtually impossible to achieve true work-life balance. You will not be perfect so accept that that is okay. You may not be great at work or in your outside life at all times but on average, you can be really good at both.
2. There is never a “right” time to start your family from a professional perspective. There are advantages and disadvantages to taking time off as a new or more experienced lawyer. Decide what is right for you personally and the rest will fall into place.
3. Do not judge other women for their choices. Instead, respect those choices and support them. What worked for you may not be ideal for others and vice versa.
4. Be innovative and flexible. Consider what type of parental leave might work best for you and do not be afraid to suggest something outside of the box.
5. There are benefits of being a lawyer. At some point in your career, you will have a decent degree of control over your schedule with the flexibility you need to support a better work-life
balance.
6. Take time for yourself and surround yourself with good mentors, colleagues and friends.
Melissa Scott (Lawyer, Millars Law)
Boundaries: Establish boundaries early, both with your boss and with your clients. They need not realize it, but if you start setting the standard of answering every email as soon as it comes in, regardless of the hour, they will tend to expect that going forward. That said, these boundaries should remain fluid throughout your professional life as they will likely change, but the bottom line is there is freedom in boundaries.
Say No: Say ‘no’ to those files. The ones that you know are going to be a total pain and result in nothing but frustration. You know the ones! Say ‘no’ to commitments that will overtax you or will pull you out of the house for the 7th night in a row.
Ebb and Flow: I have always found that the term ‘work-life balance’ is misleading. This is because balance denotes equality and it seems to me that this equality is impossible to achieve on a daily or weekly basis. That said, if you’re hung up on doing the impossible, consider assessing your success of this on an annual basis.
I have accepted that the practice will have an ebb and flow. I have changed my expectations based on the current happenings in my personal and professional life. The personal and professional ebb and flow are inextricably linked, and it becomes a matter of managing expectations and sticking to the boundaries I’ve set and reassessed as needed.
Gratitude: It may seem cliche ridden, but I’ll say it anyway — practice gratitude. If you change your focus, your perspective will undoubtedly shift. Some people have
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your trusted middlesex county news source on all topics legal NOVEMBER 2019
a gratitude journal and have found that exercise helpful. For some, it may be simply reflecting on the day and finding a few small things to be grateful for.
Be Kind to Yourself: Don’t hold yourself to a standard of perfection. That is easier said than done at times, but we will have days where the stress gets to us. Just try to not let is mess up your mascara!
Take time for yourself, whether it is a quick trip to Starbucks, yoga or retail therapy. Carve out time for vacations and be intentional about not working during your time off. Allow yourself the opportunity to ‘reset’.
Don’t Be an Island: We are all in this together. You don’t need to go through the hard stuff alone. We have a fantastic local bar of ladies (and gentlemen) who are great sounding boards and who are willing to help us, all we need to do is ask.
The LSO offers the Member’s Assistance Program (MAP) which is free access to confidential help. MAP has many benefits and even though it is funded by the LSO, there is no further interaction between the two. It is an amazing resource!
Engage with your family and friends. Just be sure that those you surround yourself with are positive and will cheer you on. You are who you surround yourself with — so be sure to surround yourself with uplifting, positive people.
** My only caveat - of course your practice area may dictate a much different situation than the one I've described above. Similarly, if you're preparing for or in the middle of trial, any ebb and flow or work-life balance understandably goes out the window.
Cheryl Scollard (Director of Marketing and Operations, DMA Rehability)
Combatting Stress 101
Most stress we experience is Psychological, caused by work or relationships.
Medicine is acknowledging the positive effects meditation offers when coping with stress-related conditions.
In order to understand how this works, it is helpful to know about the physiological changes that occur when we are feeling stressed, known as the ‘fight or flight response.’ The ‘fight or flight’ response’ activities the nervous system and chemicals are released into the bloodstream (adrenaline, noradrenaline & Cortisol). These chemicals increase your rate of breathing, among other physical symptoms, resulting in quick to react with anger or aggression, you are less likely to behave calmly and positively.
Which brings us to our discussion for today…
Combatting Stress 101
Recognizing & acknowledging your Stress Triggers. Triggers are unique to each one of us. We respond physically and emotionally to stress in varying ways and degrees, i.e. excessive eating, irritability, forgetfulness, disruption in sleep. Identifying compensatory strategies will help to bring you to a place of balance, calm & peace. Equally fair enough to say no two coping mechanisms will be the exact same.
Some of my personal coping strategies include: practicing mindfulness, practicing breathing & meditation, eating healthy, regular exercise, yoga, regular sleeping habits and daily, positive thinking/affirmations. Consider adding in small acts of kindness, i.e. buy a coffee for someone you do not know, say hello and smile. A simple thank you will inadvertently bring a calmness to you.
Mindfulness is a term becoming increasingly common in our daily language. To be mindful is to be aware of stress triggers, in an effort to establish and manage them. I practice being mindful throughout the day. Some days it is required more than others.
Breathing and meditation. I practice, relaxation breathing and meditation. It is how I start the day and finish each day. On higher stress days, I practice breathing anywhere, anytime, as long as I want and as often as I feel the need such as in
my car, in the bathroom, in my office. 5 minutes. It is so simple and the benefits immediate.
By practising mindfulness, I take responsibility for managing ME! I know I am taking steps to maintain my centre of balance and calm and good health. I use the word practice because I feel no pressure. It is a word that allows me to be patient with myself and to keep trying. I forgive myself on days when my coping mechanisms have all fallen to the wayside, we are human after all. Not every day looks or feels the same.
Combatting Stress is personal and it belongs to you! It is your responsibility to identify and manage.
By practicing and understanding strategies that are realistic, manageable and beneficial to you, you will gain strength and confidence, a sense of calm to combat your stressors. Your body and mind may feel healthy, lighter, younger, a sense of peace a sense of happiness.
Cassandra DeMelo’s of Demelo Law’s verbal comments shared her story of a busy professional and a busy personal life. Her written comments will be coming soon!
We are pleased to make a donation to London Lawyers Feed the Hungry on behalf of the chairs and all of the speakers.
The Semi-Annual Real Estate LuncheonThis luncheon was held on Wednesday, September 25, 2019 with 65 lawyers and sponsors in attendance. Thanks to Matthew Wilson of Siskinds LLP for mc’ing this program.
Here is a summary of the presentations:
HELP – the DoT Needs a Court Order by Casey Hayward (Dyer Brown LLP)
This presentation assisted solicitors in submitting court orders to rectify title.
Here are some examples of when a court order may be required: the parties
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on title are long deceased, a historic/undischarged mortgage is present, or a vesting order is required.
Regardless of what kind of order the DoT needs to rectify title, Casey Hayward walks you through Rule 38 of the Rules of Civil Procedure. His 9 step process is as follows:
1. Identifying if a court order is required, or if there are alternatives;
2. If yes, how do you proceed? Where can you find the jurisdiction for your order?
3. Interview the Applicant and other parties to establish a clear fact pattern for your Affidavits;
4. Draft the Application;
5. Prepare a Factum. This may be overkill, but it is likely very helpful to the Judge unfamiliar with real estate matters;
6. Service or Proceeding Ex Parte;
7. Serving the Respondent;
8. Prepare for motions court (don’t forget to gown) & bring a draft order;
9. Register the Order & fulfill any undertakings.
In his materials, Casey provides a chart outlining the steps in more detail than described above including references to the forms required, the applicable legislation and the goal of each step.
Environmental Liability for Non-Polluting Parties – Different Forums Yield Different Outcomes by Anand Srivastava (Willms Shier LLP)
This presentation focused on recent instances where “non-polluting” parties have been implicated in environmental proceedings. The latest environmental cases tell us how Courts and administrative tribunals have treated:
• a former landlord of a property where its dry-cleaning tenant polluted the adjacent property
• the current tenant of a historically contaminated property with contamination migrating off-site, and
• the corporate owner of a chemical manufacturing business when its employee goes rogue and dumps chemicals into a catch basin.
The Law of Restrictive Covenants by Matthew Wilson (Siskinds) and Michael Connell (Siskinds)
This presentation reviewed the law of restrictive covenants more broadly. It touched on the Court of Appeal decision in Black v. Owen, 2017 ONCA 397 (CanLII). This Court of Appeal decision confirmed that neither the “benefit and burden” nor the “conditional grant” exceptions to the rules against positive covenants running with the land are good law in Ontario.
Thanks to our sponsors: First Canadian Title, Life Made Easier, Stewart Title Guarantee Company, and TitlePLUS.
We are pleased to make a donation to London Lawyers Feed the Hungry on behalf of the chair and all of the speakers.
Being Human in the Practice of LawThis seminar was held on Thursday, October 3. Despite the small number in attendance, attendees were delighted with the program.
Here is a summary of the workshop:
Human dynamics is one of the challenges of law practice not taught in law school.
• You gave clear instructions, but the work was not done correctly.
• You need to tell a client information they will not like.
• You would like to have a tough conversation with another lawyer in your firm.
Basic neuroscience tells us that conversations affect the brain. We learned how to close the gap between intention and impact and built our capacity to:
• Apply practical communication dynamics
• Build trust to partner with others
• Build effective relationships with clients and staff in your practice environment
• Increase alternatives and reduce obstacles for resolution of conflicts
• Develop understanding and acceptance in the workplace
• Achieve closure or resolution to conflicts
• Create a more productive workplace environment
Thank you to Tracy Quinton (Quinton Group) and Kathyrn Munn (Munn Conflict Resolution Services) for their excellent workshop. We are pleased to make a donation on their behalf to London Lawyers Feed the Hungry.
The 15th Annual Business BreakfastThis annual breakfast was held on Wednesday, October 9, 2019 with 30 lawyers in attendance. Thanks to Scott Spindler of Harrison Pensa LLP for chairing the program. Here is a brief summary of the presentations:
Defamation in the Internet Age by Michel Castillo (Castillo Law Chambers)
This presentation was not about the evils of social media. To the contrary as social media is potentially an outstanding tool. The problem is that it is also, potentially, a source of many headaches for our clients (let alone for us as professionals). However, social media can be misused, and people have a tendency to be Dr. Jekyll in real life, but Mr. Hyde on the internet. It is not enough for people to disagree, some people must vehemently disagree and sometimes add adjectives and expletives to make their point (of course they do not but somehow, they feel like they do!) This presentation reviewed the law of defamation, recent cases including damage awards, and tips on
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your trusted middlesex county news source on all topics legal NOVEMBER 2019
The MLA’s Fourteenth Annual Wills, Estates & Trusts conference
Wednesday, November 6 8:45am to 11:45am
CPD Accredited!
The MLA’s Second Annual EDI SeminarThursday, November 21
1:00pm to 2:30pm EDI CPD Accredited!
The MLA’s Fourteenth Annual Personal Injury Conference
Wednesday, November 27 12:00pm to 4:00pm
CPD Accredited!
The MLA’s Fifteenth Annual Straight from the Bench Conference
Monday, May 4, 2020
Continuing Professional Development – Programs & Events 2019 –
To register, click on the following link: www.middlaw.on.ca/links/mla_events
and then click on the program you are interested in attending.
how to “behave” and avoid claims for defamation in the internet age!
Employment Law Refresher: 3 Common Client Calls by David Spence (Harrison Pensa LLP)
This presentation was an overview of 3 common employment law questions on which David frequently advises. Intended as an employment law refresher for the occasional practitioner, it contains strategies and substantive advice on how one might advise clients in three unique situations.
Current Tax Cases of Interest by Keith Trussler (McKenzie Lake LLP)
Keith commented on several current tax cases of interest in connection with:
- The Voluntary Disclosure Program
- Reassessing statute barred years
- Requirement to Provide Information
- Shareholder Benefits
We are pleased to make a donati on to London Lawyers Feed the Hungry on
behalf of the chair and all of the speakers.
MLA’s special discount from CPDonline.ca ends on November 20, 2019! Get the rest of your hours for $199 + HST now!
If you cannot attend our MLA programs, or if you have a conflict, or we don’t offer programming for your specific practice area, or you need a few extra hours, consider purchasing an individual subscription from www.CPDonline.ca.
CPDonline.ca is an on-demand CPD video website. They have hundreds of hours of LSO accredited programming, substantive and professionalism including EDI, in virtually all practice areas.
CPDonline.ca has a great deal for MLA members! Our MLA members can get access to all videos by becoming a member at a preferred rate for law association members! It's an unlimited calendar year access for $199.00 + HST. (No, it is not prorated.) And, CPDonline.ca will pay the MLA $100.00 for every new subscriber.
This low price is only available until NOVEMBER 30, 2019! If you join before November 30, 2019, your member price for 2020 will remain the same as 2019!
When you sign up, use the discount code at checkout: MiddlesexCPD. For more information on this deal, go to cpdonline.ca/subscribe. To see how it works, go to: cpdonline.ca/200-cpd-mla.
A list of select MLA programs are available as on-demand video replays through CPDonline and the list of this year's past programs is available below.
How to Sign Up
1. Go to cpdonline.ca
2. Get Started... Individual Subscription
3. Input Association Code, MiddlesexCPD at checkout (price drops from $399.00 to the law association member price of $199.00)
To browse CPDonline's complete offerings, go to cpdonline.ca.
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Fall SocialbowlThe MLA’s Fall Socialbowl was held at Palasad North on October 18. Thanks to the Entertainment Committee, led by Carolynn Conron, for planning a great event and bringing London’s own Kevin’s Bacon Train, a self-proclaimed “Covergrass” band, to the attention of the MLA!
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your trusted middlesex county news source on all topics legal NOVEMBER 2019
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Conflict of Interest? No problem. Your relationship with your client will be respected when you refer litigation or personal injury files to us.
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Stegenga v. Economical Mutual Insurance Company, 2019 ONCA 615 (Brown, Roberts and Zarnett JJ.A.), July 19, 2019
The Statutory Accident Benefits dispute resolution provisions of the Insurance Act give the Licence Appeal Tribunal (“LAT”) authority to resolve certain disputes. In this decision, the Court of Appeal considered whether claims for an insurer’s bad faith conduct fall within that jurisdiction. There had been much speculation by many commentators that claims based on bad faith, seeking punitive damages, could still be litigated, rather than adjudicated by the LAT. The Court of Appeal has ended that speculation by holding that there was no ability to sue.
The appellant, Morgan Stegenga, was involved in a motor vehicle accident resulting in significant injuries. She claimed Statutory Accident Benefits from her insurer, the respondent Economical Mutual Insurance Company. In light of the way that the respondent handled her claim, Stegenga brought an action against the insurance company alleging bad faith, and claiming punitive and exemplary damages.
The respondent successfully moved under Rule 21.01(1)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, to strike out Stegenga’s statement of claim and obtained a determination, as a matter of law, that the LAT has exclusive
jurisdiction to decide the claim at first instance.
Section 280 of the Insurance Act, R.S.O. 1990, c. I. 8, which came into force on April 1, 2016, gives the LAT jurisdiction to resolve certain disputes and prohibits bringing proceedings in respect of those disputes in court. The motion judge held that the claim fell within the SABs dispute resolution provisions because it was “in respect of an insured person’s entitlement to statutory accident benefits or in respect of the amount of statutory accident benefits to which an insured person is entitled”. It was therefore a claim over which the LAT has exclusive jurisdiction and one which may not be brought in court. In the motion judge’s view, both section 280 of the Insurance Act and the Court of Appeal’s decisions under the prior versions of the statute’s dispute resolution provisions required this conclusion, even though the appellant claimed damages for bad faith arising from the respondent’s administration of her SABs claim.
The Court of Appeal dismissed Stegenga’s appeal from that decision, rejecting her submission that the motion judge erred in concluding that her claim was barred by section 280 of the Insurance Act.
Justice Zarnett characterized the appeal as a question of statutory interpretation, its disposition turning on the breadth of section 280 of the Insurance Act.
Subsection 280(1) of the Insurance Act describes the disputes to which the dispute resolution process it mandates applies, providing:
This section applies with respect to the resolution of disputes in respect of an insured person’s entitlement to statutory accident benefits or in respect of the amount of statutory accident benefits to which an insured person is entitled.
Subsection 280(2) goes on to confer jurisdiction on the LAT to resolve the disputes described in subsection 280(1), while subsection 280(3) then places a limit on what proceedings may be brought in court, prohibiting proceedings at first instance if they are with respect to a dispute described in subsection 280(1), that is, a dispute that falls within the jurisdiction of the LAT.
As the court explained in Belwood Lake Cottagers Association Inc. v. Ontario (Environment and Climate Change), 2019 ONCA 70, the modern approach to statutory interpretation requires the court to consider the words of a statute “in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”.
Zarnett J.A. explained that the amendments to the Insurance Act that created section 280 were enacted to reduce insurance rates and insurance fraud and to speed up dispute resolution. In effecting this purpose, the legislature must not have intended to give overlapping jurisdiction to both the LAT and the courts as this would be inefficient and would defeat the purposes of the amendment.
Court Action for Punitive Damages in No Fault Insurance Claim Dismissed
Contributed by: Andrew Murray, Lerner's
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your trusted middlesex county news source on all topics legal NOVEMBER 2019
Moreover, section 280 uses expansive language, namely, “in respect of”, which connotes the broadest possible connection between two subject matters. The words “in respect of” are used in subsection 280(1) to connect “dispute” and “entitlement”, both of which are very broad terms on their own. Combining these considerations leads to a very broad jurisdiction for the LAT to exclusively hear such disputes.
The appellant submitted that since the LAT doesn’t have the ability to award punitive damages, it cannot hear claims for bad faith since Whiten v. Pilot Insurance Co., 2002 SCC 18, makes actions for breach of a duty of good faith
subject to punitive damages. Zarnett J.A. rejected this argument, however, noting that the Insurance Act gives the LAT power to confer special awards when benefits were unreasonably withheld or delayed. He emphasized that differences in remedial powers do not impact determinations of jurisdiction. The legislature made a decision which matters would fall to the LAT, and in turn, what remedies would be available, and that is a determination it was entitled to make.
The appellant further submitted that the claim was for bad faith, not one relating to the benefits themselves, and therefore should not be subject to the jurisdiction of the LAT. Justice Zarnett also rejected
this claim. While the appellant classified the action as one for bad faith, the facts clearly show that it was a dispute over how the policy was administered. Section 280 of the Insurance Act specifically confers powers for disputes relating to the administration of the claim.
This case summary was originally posted in the September 2019 edition of the Lerners Appeal Newsletter
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Grant Inglis – is now practicing at Scott Petrie LLP and his email is [email protected]
James (Kim) Little – is now practicing at Scott Petrie LLP and his email is [email protected]
Georgia Kortas – is now practicing at Thomson Mahoney Delorey LLP and her email is [email protected]
James Dunlop – is practicing on his own at 4-1040 Riverside Dr., London N6H 5N4, ph: 226-268-8099, email: [email protected]
Michael Weinberger – new member practicing at Siskinds LLP and his email is [email protected]
Jessica Crawford – new member practicing at 1801-1 Yonge St., Toronto M5E 1W7, ph: 647-227-8472, fax: 647-689-3556, email: [email protected]
Kelsey Long – email has changed to [email protected]
Christopher Lukas – new member practicing at 26-2290 Torrey Pines Way, London N6G 0N9, ph: 416-999-8802, email: [email protected]
Megan Stuckey – has opened Stuckey Criminal Defence, 611-111 Waterloo St., London N6B 2M4, ph: 519-857-7817, fax: 226-224-9213, email: [email protected]
Catherine Taylor – is now practicing at Aviva Trial Lawyers, 1500-255 Queens Ave., London N6A 5R8, ph: 519-538-2981, fax: 416-363-5386, email: [email protected]
Emely Melendez Rodrigues – is now at London Health Sciences Centre, C3-205C, 800 Commissioners Rd E, Box 5010, Stn B, London N6A 5W9, ph: 519-685-8500 x75111, fax: 519-685-8127, [email protected]
Betty Bea Balint – new member practicing at Balint Law, 380 Wellington St., Tower B, 6th Floor, London N6A 5B5, ph: 519-566-4857, fax: 519-488-1194, email: [email protected]
Meaghan Carlson – new member practicing at Baroudi Law and her email is [email protected]
Courtney Campbell – new member and can be reached at 604-970-7180, email: [email protected]
Katherine Zhang – new member and can be reached at 226-260-1837, email: [email protected]
Member Updates Send your updates to [email protected]
These updates are to the new 2019-2020 MLA Members’ Directory and copies are now available for pickup from the MLA Practice Resource Centre.
Steven Alan Beattie Anyone having knowledge of a Will of the late Steven Alan Beattie, who passed away on September 27, 2019, please contact Erin Naylor, Scott Petrie LLP, 200-252 Pall Mall Street, London, Ontario N6A 5P6, ph: 519-433-5310 ext. 225 or [email protected].
Will Notice
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your trusted middlesex county news source on all topics legal NOVEMBER 2019
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John - “I believe that my experience and my approach has provided me with the knowledge and judgment to understand both sides of a case
and, most importantly, to realistically evaluate what are the parameters of a reasonable settlement.”
About the Mediator
Strong academic background having obtained a doctorate from the London School of Economics before obtaining law degree from the University of Western
Ontario. Practiced for 33 years as a civil litigator and was a senior partner in a firm dealing with all aspects of insurance and personal injury litigation.
In 1994 was certified as a Specialist in Civil Litigation by theLaw Society of Upper Canada.
JOHN F. GRAHAM
www.grahammediations.com
Contact
Services
IT WORKS. Many mediations end in agreement, even when other attempts to settle have failed.
IT’S AFFORDABLE.Obviously a one day mediation costs only a small fraction of a three week trial.
IT’S QUICK.Mediation can result in a fair settlement far sooner than the traditional litigationsystem, especially with the court delays now being encountered.
IT’S PRIVATE.Disclosure, concessions, and offers made during a mediation are confidential. If the case doesn't settle neither party can use them against the other at trial.What happens on a mediation stays in the mediation. This encourages parties to move from their rigid litigation positions (which are preventing settlement)to more realistic and achievable goals.
Why Try Mediation
Karen- 519-671-4935 or [email protected] John- 519-474-4806 or [email protected]
Insurance Law • Civil Litigation • Personal Injury Accident Benefit Disputes • Professional Liability • CGL Policy Disputes
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your trusted middlesex county news source on all topics legal NOVEMBER 2019
Executive & Committees2019-2020
President James Zegers t. 519-673-0440 f. 519-673-0442 [email protected]
Vice-President Erin Rankin Nash t. 519-963-0162 x6 f. 519-963-0159 [email protected]
Treasurer Robert Ledgley t. 519-640-6351 f. 519-932-3351 [email protected]
Assistant Treasurer Karen Hulan t. 519-673-4944 f. 519-432-1660 [email protected]
Past President, Sick & VisitingLawrence Blokker t. 519-657-8985 f. 519-657-7286 [email protected]
SecretaryNicola Circelli t. 519-601-9977 [email protected]
LibraryJake Aitcheson - Chair t. 519-640-6396 f. 519-932-3396 [email protected]
Ayren Brown t. 519-673-1100 f. 519-679-6108 [email protected]
NewsletterKaren Hulan t. 519-673-4944 f. 519-432-1660 [email protected]
Cynthia Simpson t. 519-679-7046 f. 519-672-5917 [email protected]
Shabira Tamachi t. 519-679-7046 f. 519-672-5917 [email protected]
Toll-free: 866-556-5570
AdministrationJennifer Wall - Chair t. 519-679-9660 f. 519-667-3362 [email protected]
Kelly Nenniger t. 519-672-3535 f. 519-672-3565 [email protected]
Marshall Mayne t. 519-432-0632 f. 519-432-0634 [email protected]
EntertainmentCarolynn Conron - Chair t. 519-673-1881 f. 519-673-0996 [email protected]
Kevin Wilbee t. 519-673-1670 f. 519-439-5011 [email protected]
Nicola Circelli t. 519-601-9977 [email protected]
WebsiteChristina Martin - Chair t. 519-672-2121 f. 519-672-6065 [email protected]
Jake Aitcheson t. 519-640-6396 f. 519-932-3396 [email protected]
Kelly Nenniger t. 519-672-3535 f. 519-672-3565 [email protected]
CPDJacqueline Fortner - Chair t. 519-640-6322 f. 519-932-3322 [email protected]
Jennifer Butkus t. 519-661-6768 f. 519-667-3362 [email protected]
Director of CPDPaula Puddy t. 519-434-1901 f. 519-681-8523 [email protected] CPD cell 519-868-6771
Bench & BarKaren Hulan - Chair t. 519-673-4944 f. 519-432-1660 [email protected]
Anna Szczurko t. 519-660-7784 f. 519-672-6065 [email protected]
MentoringJennifer Butkus - Chair t. 519-661-6768 f. 519-667-3362 [email protected]
Anna Szczurko t. 519-660-7784 f. 519-672-6065 [email protected]
ScholarshipLawrence Blokker t. 519-657-8985 f. 519-657-7286 [email protected]
Opening of the CourtsLawrence Blokker t. 519-657-8985 f. 519-657-7286 [email protected]
Committee: Jennifer Wall, Christina Martin, Karen Hulan, Jacqueline Fortner, Anna Szczurko, Ayren Brown, Joel Belisle
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