Mike Driver
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@leeakazaki
We, the jury.
In the midst of the Covid-19 emergency, the courts have ground to a standstill. Civil jury trials, in particular, have been suspended indefinitely. This week, in Higashi v. Chariot, an Ontario Superior Court judge issued an order stating a civil action arising from a serious automobile accident should not be heard by a jury, because of the uncertainty of the return of civil jury trials in the…
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The Ethics of Getting It So Wrong
In most professions, excessive caution in giving a range out outcomes can be as wrong as a lack of it. In medicine, telling a patient about a remote cancer diagnosis without adequate data could be considered negligence if the patient suffers nervous shock. In law, a lawyer who causes a real estate closing to fail based on a remote title issue could be held liable when the value of the property…
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Collateral Disclosure Strategies in Ontario MVA Litigation: SABS, PIPEDA and the RHPA
Collateral Disclosure Strategies in Ontario MVA Litigation: SABS, PIPEDA and the RHPA
What if the Ontario auto accident benefits regulation, the federal privacy commercial legislation and the regulatory oversight of health professionals walked up to a Bar? In Vol. 50, no. 2 of The Advocates’ Quarterly (2019), you can read my article to find the answer. For a pre-publication version, you can find it here.
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Moving on from LSO's abandonment of #EDI: The Case for Affirmative Action in Canadian Law
Moving on from LSO’s abandonment of #EDI: The Case for Affirmative Action in Canadian Law
OLYMPUS DIGITAL CAMERA
After a week in which the Law Society of Ontario moved to repeal a requirement that lawyers and paralegals make an annual private pledge to promote equality, diversity and inclusion (“EDI”), the Bar must now reflect on the root cause of this public policy failure: Asking a privileged group to give up its perch, or even thinking about giving it up in the comfort and privacy…
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The Ethics of Lawyers Recording Conversations
The Ethics of Lawyers Recording Conversations
Canadians’ interest in legal ethics continues to remain very high. What, then, are the ethics of a lawyer’s secret recording of a telephone call with a client, including the employees of a client?
Rule 7.2-3 of the Ontario Rules of Professional Conduct provides:
7.2-3 A lawyer shall not use any device to record a conversation between the lawyer and a client or another legal practitioner, even if…
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Why re-elect me or vote for anyone in the LSO #BencherElection2019
By filling a recent opening on LSO Convocation, I will enter the 2019 bencher election as an incumbent who has yet to serve. Here, then, is my pitch to renew your trust.
Voting in the Law Society bencher elections is, necessarily, an act of faith performed every four years. Most of us keep Osgoode Hall a wide berth, unless we have scheduled an appearance in court or attend a networking event. …
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Cabinet Confidentiality: Navigating the Procedural Ins and Outs
Cabinet Confidentiality: Navigating the Procedural Ins and Outs
What is cabinet confidentiality? How does it restrict what a minister of the Crown can reveal in public discourse? How can a court, tribunal or parliamentary committee compel disclosure, and how can that process be blocked?
Cabinet confidentiality is a feature of Canadian constitutional law derived from Part III of the Constitution Act, 1867, in which Executive Power was modeled after the…
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Talking to the Attorney-General about Solicitor-Client Privilege
Out of the blue, solicitor-client privilege is a meme. The subject excites legal ethics nerds but is not recommended dinner-party conversation. Until now.
If the public weren’t confused enough by this legal principle, a former Attorney-General hires a retired Supreme Court judge as her legal counsel. The former minister declines comment to reporters on the Hill, invoking solicitor-client…
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Is it time to unshackle law schools from law societies?
Is it time to unshackle law schools from law societies?
On December 10, 2018, the Law Society of Ontario chose to stay the course on its dual streams for lawyer licencing. Apart from a few substantive enhancements such as the requirement for paid internships, a candidate for membership in the legal profession must either article under an approved lawyer or pursue an experiential education program called the Law Practice Program.
In its report of the…
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The Myth that Lawyers Believe in #Equality, #Diversity and Inclusion
The Myth that Lawyers Believe in #Equality, #Diversity and Inclusion
In case you missed it, the Law Society of Ontario now requires lawyers in Ontario to prepare and embrace a ‘Statement of Principles‘ regarding diversity in their practices. I have been criticalof the initiative because, at the end of the day, it requires no more than yet another act of lip service to fix real diversity deficits in the senior bar and judiciary of Ontario in relation to the public…
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Did Politics Trump Justice Zabel's Sentence?
Did Politics Trump Justice Zabel’s Sentence?
Yesterday, the Ontario Judicial Council sentenced Justice Bernd Zabel, a trial judge sitting in Hamilton, to a 30-day suspension without pay for having brought a Donald Trump “Make America Great Again” cap into court the morning after the 2016 U.S. presidential election, and for telling the public assembled in court that he had “voted” for Mr. Trump and that the other judges hadn’t.
At his…
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Resolving R. v. Jordan linguistically: Why the dissent was right
Resolving R. v. Jordan linguistically: Why the dissent was right
It was the most significant Supreme Court of Canada decision of 2016, and it continues to dog the justice system. Last July, R. v. Jordan set 18 months as the presumptive ceiling for criminal cases in the provincial courts, and 30 months in superior courts (or cases in provincial courts after a preliminary inquiry). Canadian courts do not have the power to legislate, and these time limits do…
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Why some courts don't get consent in sex offence trials
Why some courts don’t get consent in sex offence trials
Canadian courts have recently come under intense scrutiny over the treatment of complainants in trials of sexual assault offences. From the judicial discipline proceedings against Judge Robin Camp, who asked the assault complainant why she “couldn’t just keep [her] knees together,” and referred to her as “the accused,” to the acquittal of taxi driver Bassam Al-Rawi on the basis that a woman…
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'The Morning After' Politics and a Hamilton Ontario Courtroom #cdnpoli
‘The Morning After’ Politics and a Hamilton Ontario Courtroom #cdnpoli
The day after the election of the 45th president of the United States, Bernd Zabel, a trial judge in Hamilton, Ontario, entered his courtroom wearing a baseball cap bearing the logo “Make America Great Again.”
Hamilton, a city whose declining steel industry has seen its economy transformed by a leading Canadian university and a vibrant wine regionon its doorstep, has an increasingly diverse…
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The Trial of Hillary Clinton, the Lawyer and Woman
The Trial of Hillary Clinton, the Lawyer and Woman
“The episode is one of … America’s most notorious cases of mass hysteria. It has been used in political rhetoric and popular literature as a vivid cautionary tale about the dangers of isolationism, religious extremism, false accusations, and lapses in due process.”
No, this is not a future historian’s description of yesterday’s election of the 45th President of the United States, or of his tenure…
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Testing for Legal Ethics and Efficacy: You take the test
Testing for Legal Ethics and Efficacy: You take the test
Recently, a colleague asked me for an example of a bar exam question that tests the candidate’s judgment between being an effective lawyer and being an ethical one. It has been long since I’ve prepared such a question, so here is a rusty stab at it:
Astrid is a first-year lawyer hired recently by R. U. Hurt LLP, an injury law firm with a reputation for obtaining high settlements through zealous…
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Canada deserves better: Functional bilingualism for #SCC appointments is not enough
Canada deserves better: Functional bilingualism for #SCC appointments is not enough
In recent days, there has been much talk about the requirement that Canadian Supreme Court justices be functionally bilingual. Coverage of the appointment of Malcolm Rowefrom Atlantic Canada has fuelled criticism of this requirement. Much of the criticism is well-considered, but ultimately none of it addresses the basic fact that the laws of Confederation exist in two separate and equal…
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