Archive for the ‘access to justice’ Category

(Access to) Justice Delayed, (Access to) Justice Denied

September 17, 2013

Access To Justice Problem Solved

Yamri Taddese at Law Times reports on some welcome, albeit late, efforts to resolve the interminable motion delays in Toronto:

Acknowledging there are “real delays” with scheduling long motions in Toronto, Smith said she and regional senior Justice Edward Then “have already begun to review scheduling efficiencies and how the court’s judicial resources can be maximized.”

Then has asked Superior Court Justice Geoffrey Morawetz to lead a motions effort to identify ways of maximizing both facilities and judicial resources for a more efficient system, Smith said, noting the review will also consider the issue of better case management.

The Law Times article adds,

Superior Court Justice Mary Vallee called the delays “shameful” and decided against moving the case to Toronto.

A case, of course, would need some connection to Toronto for counsel to bring up the idea of moving it there, says Oatley. But his firm has decided that even when there’s some connection to Toronto, it will challenge such motions on access to justice grounds.

“The government is simply going to have to accept the fact that if we’re going to have a viable justice system in Ontario, they need to provide the administration of justice the resources to do the job,” he says.

Whenever he can, lawyer John McLeish says he’ll book cases outside of Toronto. “It’s a shame because the judges here are great,” he says.

In my opinion, the causes of the systemic delay are easily identifiable:

1. The revision of the Rule 77 case management rule has hoisted onto plaintiff’s counsel’s shoulders the sole burden to move a case along to trial. Defence counsel are prone to bringing superfluous motions to tie up the litigation, armed with the knowledge of institutional delay of 6-7 months to secure a motion date in Master’s court;

2. The concept of a Litigation Timetable and Discovery Plan is great in theory; however, the failure to abide or comply with a consent or court-ordered timetable rarely results in any tangible consequences for non-compliance, such as substantial indemnity costs or striking of a defence. Having to wait half a year to bring a motion to force an opposing party to comply is quixotic;


3.  The Rules of Civil Procedure are skewed towards procedural inefficiency. For example, while any Superior Court judge has jurisdiction to hear all motions, many motions are implicitly designated to be brought “to the court” (i.e. Masters), leaving an access to justice vacuum.

4.  There are simply not enough Masters appointed to hear motions based upon the sheer volume of court files in Toronto. This is a function of chronic underfunding of the civil justice system in Ontario.  What is the Ministry of Attorney General’s response?

Brendan Crawley, spokesman for the Attorney General of Ontario, said the ministry isn’t planning on appointing new masters.

The ministry, he said, has worked with the legal community “to improve and modernize Ontario’s civil justice system, making it more accessible and affordable for the public.”

I am cautiously optimistic that Mr. Justice Morawetz —who is among the leading jurists in Ontario and fully conversant with judicial efficiency on the Commercial List Court — will find a practical and practicable solution to this motion court boondoggle.  The following are my unsolicited solutions:

1.  Restore the procedural balance under the Rules of Civil Procedure by imposing an equal obligaiton between plaintiffs and defendants and counsel of record to ensure that a case moves efficiently and speedily towards trial;

2.  Consider revising Rule 77 case management screening when an action is commenced by allowing the plaintiff or defendant to request case management as an option, rather than an exception to litigation management;

3. The Ministry of the Attorney General  must appoint at least 3 additional full-time Masters and loosen the requirement of Regional Senior Justice judicial oversight for case management transfers;

4. When all else fails, amend the mechanism of administrative dismissal by the Registrar, by allowing Status Hearing judges or Masters to transfer matters to case management sua sponte, or upon request of one or more of the parties; rather than slavish reliance on consent litigation timetables;

5. Allow Masters or Judges to schedule case conferences via telephone or email ,rather than requiring in person attendances, where available.

Access to Justice is inchoate unless it is equal, timely, effective and efficient:  Justice delayed is justice denied.

Former Client Pursues Class Action Against Law Firm’s Contingency Fee Bonanza

January 24, 2013

Yamri Tadesse for Law Times reports on a proposed class action targeting a  law firm’s fees:

Cassie Hodge of Brooklin, Ont., is taking Gary Neinstein and his firm, Neinstein & Associates LLP, to court with a claim that the lawyer unlawfully included costs in a contingency agreement and charged her fees she didn’t understand. She’s seeking $1 million in punitive damages. None of the allegations have been proven in court and Neinstein has yet to file a statement of defence. His lawyer, however, argues the matter is an inappropriate one for a class action.

According to her notice of application, Hodge, a mother of two, was in a car accident in 2002 that left her with serious physical injuries. She retained Neinstein as a lawyer and signed an agreement that said she’d pay him 25 per cent of the damages recovered in addition to partial indemnity costs and disbursements.

But she didn’t receive a copy of the agreement, her counsel Peter Waldmann says.

Here’s the math:

Settlement amount: $150,000.00
Law Firm’s Cut: (Legal fees and party and party costs) $ 60,000.00 (-)
Disbursements: $ 50,000.00 (-)
Third Party Litigation Loan:

-Principal of $19,500 @ 26% per annum interest

$ 32,000.00 (-)
Plaintiff’s Recovery: $ 8,000.00

Still, Neinstein’s counsel, Chris Palaire has a point:

The complainants may pursue other remedies for their claims, but they don’t include a class action, says Paliare.

“That’s the position we’ve had since the outset. That’s not to say that [Waldmann’s] client or clients, if they have more, don’t have an alternative remedy.”

This lawyer-client dispute puts into contrast two access to justice paradigms: Contingency fee retainer agreements regulated under the Solicitors Act, R.S.O. 1990, c S.15,  and class actions governed by the Class Proceedings Act, 1992, S.O. 1992, c 6 and Rule 12 of the Ontario Rules of Civil Procedure, R.R.O. 1990, Reg 194.

Whether this dispute is certified as a class action will depend on a number of factors, most notably, whether the class is identifiable.  However, the Solicitor’s Act is unequivocal that any additional recovery of costs from the proceeding may not be paid to the lawyer unless section 28(8) of the Solicitor’s Act is complied with:

Agreement not to include costs except with leave

(8)  A contingency fee agreement shall not include in the fee payable to the solicitor, in addition to the fee payable under the agreement, any amount arising as a result of an award of costs or costs obtained as part of a settlement, unless,

(a) the solicitor and client jointly apply to a judge of the Superior Court of Justice for approval to include the costs or a proportion of the costs in the contingency fee agreement because of exceptional circumstances; and

(b) the judge is satisfied that exceptional circumstances apply and approves the inclusion of the costs or a proportion of them. 2002, c. 24, Sched. A, s. 4.

Enforceability of greater maximum amount of contingency fee

(9)  A contingency fee agreement that is subject to approval under subsection (6) or (8) is not enforceable unless it is so approved. 2002, c. 24, Sched. A, s. 4.

Stay tuned.

Steen v. Islamic Republic of Iran (Ont. C.A.): A Silver Lining in the State Immunity Playbook?

January 22, 2013

The Court of Appeal for Ontario has again reinforced state immunity for torture and human rights abuses in Steen v. Islamic Republic of Iran, 2013 ONCA 30 (Ont. C.A.), aff’g   2011 ONSC 6464 (CanLII (Ont. S.C.J.). (“Steen“). (more…)

When One Lawyer Makes Us All Look Bad

December 5, 2012




Pull out your Roget’s Thesaurus and take your pick of a panoply of adjectives to describe this story by the CBC’s Kathy Tomlinson:  B.C. woman may lose home over huge lawyer bill:

A B.C. woman stands to lose her home to her lawyer, who is moving to foreclose on her to pay his six-figure bill.

“My friends and family say this can’t be happening. There’s got to be a mistake,” Dale Fotsch said.

Fotsch got into the predicament after being sued by her former common-law husband, even though she won the case and the court ordered him to pay her costs.

“I won, but I lost,” Fotsch said. “I defended myself and now I’m losing my place.”

Fotsch, 54, lives near Pemberton with her disabled son and earns a modest income. Her only asset is her home and the 12 hectares of land it sits on.

“I’ve worked two jobs, and I have for the last 25 years,” Fotsch said. “When I was hit with this, it was just like a bomb went off in my life.”

The divorce proceedings were brought by Ms. Fotsch’s common law ex-husband Leigh Wilson who claimed a share of her home (presumably as a matrimonial home) following their break-up. Nine years later, the case resolved, but not in any way she expected. (more…)

The Articling Revolution Will Be Tweeted

October 26, 2012

Image via

The Law Society of Upper Canada has spoken about the future of articling.

Well, the Benchers sure spoke a lot during the Convocation meeting— motioning to vote, motioning to defer the debate, motioning for a “friendly amendment” to the deferral of the vote, and, amusingly, Treasurer Tom Conway motioning to one Bencher on the phone to press “*6” and mute his line and stop talking about “Irene”.

Meanwhile,  back at the War Room, my co-panellists and I listened, commented and tweeted. Check out the archive of the live discussion on the Law Society website here(more…)

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