28 November 2014

Do I Need to Lawyer to Declare Bankruptcy? What if I'm a Creditor Pursuing Debts of a Bankrupt?

Yes, this is a real game. Credit: Tangent Games,
http://www.tangent-games.com/bankruptcy.html

Usually, you don't need a lawyer to deal with your bankruptcy. You'll definitely need a trustee in bankruptcy. But you should be aware that unlike a bankruptcy and insolvency lawyer who ethically is completely devoted to your interests, a trustee acts more like a privately employed government agent.

You pay for the trustee (which can sometimes be an issue for people who don't have any money), the trustee will gather together information on your debts and assets that you provide to the trustee, and then processes your bankruptcy application (or your proposal to creditors). But sometimes the trustee will oppose your discharge from bankruptcy because the trustee claims you haven't complied with the required conditions, and at other times some of your creditors may oppose the discharge (like a bank or or Canada Revenue Agency). In that kind of situation, you should consider hiring a bankruptcy lawyer.

If you're a creditor, you might also need a lawyer to pursue your debts against a bankrupt, because sometimes a trustee in bankruptcy could disagree with how much your debt is worth, and claim that it is an unsecured instead of secured debt. Ultimately, it's the bankruptcy court judge, and not the trustee, who decides upon how much you are entitled to out of the bankrupt's estate. Unfortunately, the arguments over mortgage clause interpretation, debt priorities, and validity of promissory notes can get quite legalistic, so a lawyer may be justified.

On the plus side, it's usually possible to get a fairly quick hearing in bankruptcy court (at least in Ontario) compared to wait times for other courts, and hearing are usually over in under a day so legal costs will usually be manageable.

27 November 2014

THE BEST OF ... APPELLATE PRACTICE

I especially like doing appeals. I find I can often obtain the best results for my clients when I am permitted to carefully clarify for a court what are the legal as opposed to factual issues at play, and why those issues should be decided in favour of my client.

The facts rule trials, whereas the law rules appeal. Certainly lawyers still have crucial roles to play at trial in presenting the facts, but lawyers have limited control of trial facts which issue from independent witnesses, whereas in appeals lawyers can present very controlled factums, appeal books and books of authorities. Lawyers are the stylists of appeals.

Below, I give you 5 posts I've done which might assist you in figuring out whether you should appeal a case you lost, if such an appeal is even possible, and how to maximize your success on an appeal.


Oct 21, 2014
More than a few people at times find all the possible appeals that can happen in a case to be a ridiculous abuse of the judicial process, but those possible appeals are the fundamental injustice check valve for a judicial system ...
Jun 20, 2014
It might strike you as strange that it's more important to be on time with an appeal, than to have great grounds of appeal, but really that's how life works in general. The world's best employee who's always three hours late for ...
Mar 05, 2012
Although we all hear about these cases that supposedly go on forever because of appeal after appeal, the reality is that very few people appeal any judgment against them. Or in fact have a right to appeal. But appeals work.
Apr 06, 2012
Osgoode Hall, 1856 (currently home of Ontario Court of Appeal, Divisional Court and Law Society of Upper Canada); photo credit: Library and Archives Canada, creative commons licence ...

Oct 20, 2014
Compared to a trial where you had to show up, you'll always have a choice over whether to appeal a negative judgment to a higher court (unless you're forced to respond to an appeal by the other party to a case).

23 November 2014

THE BEST OF ... ANIMAL LAW

My regular readers (at least those who also occasionally take a look at my firm's Facebook page) might be aware that I'm a supporter of animal causes. Not every cause under the sun, or every group. I'm one who need to carefully evaluate whether a cause or group is employing reasonable means to achieve good outcomes.

I'm a particular fan of some of the Societies for the Prevention of Cruelty to Animals (SPCAs) I've worked with, like the Ontario SPCA and especially its Stormont, Dundas and Glengarry branch located near to my offices. I also occasionally conduct animal cruelty prosecutions as a per diem Assistant Crown Attorney, even though I much more often do criminal defence work for other types of cases.

Below I give you four posts I've done over the last couple of years concerning Animal Law, a slowly growing area of law that amalgamates contracts, government regulation, estate planning, and torts (each one of the topics in the posts that follow). I hope animal owners and those who interact with animals find them helpful. As always, I welcome your comments.

Apr 11, 2014
There are principally two types of contracts to know about where animals are concerned: (1) contracts for purchase, sale or lease of the animal itself that involve a full or limited transfer of property rights, and (2) contracts for ...
Jul 09, 2013
For children left in a hot car, there would be little legal doubt that you could intervene to save them from harm. But because animals are still considered to only be property in most jurisdictions, the legal situation of intervening ...
Jan 06, 2013
If you're an animal lover like me, there's a good chance that one of the pieces of property (legally there's no arguing with their "property" status) you will leave behind will be a pet of some sort. Maybe many pets. Regardless of ...
Jan 11, 2013
Okay, so bees aren't perhaps at the top of everyone's list of pets, but bees from the right species and with the right housing could be considered domesticated animals. If you keep them (or horses or dogs or kittens), are you ...

13 November 2014

THE BEST OF ... TAX LAW

Continuing in my "Best Of ... " series of greatest blog hits, today I offer you tax law. There may be no area of law that strikes terror into the hearts of the public and lawyers alike as does tax law. But it's also an area of law that almost universally touches all of us.

Here are four tax law posts I've done for the blog, touching on why tax law isn't so bad after all, why the Tax Court is a pretty good place to have your tax dispute adjudicated, and I also offer a few tips to help you in your dealings with the Canada Revenue and your taxes.

Apr 05, 2013
With tax season now in full swing, I offer you the following thoughts on why the Tax Court isn't such a bad place to litigate against the government if you're unhappy with your assessment, reassessment or confirmation of taxes.
Mar 08, 2012
Let's face it, tax law is just plain unpopular. And unpopular not just among the taxpayers, but also somewhat unpopular among the lawyers. It's considered by some lawyers to be too dry, too esoteric, and too risky in the way it ...
Oct 27, 2011
People get really worked up about taxes. Crazy kind of worked up. Shoot yourself in the foot, pay a dollar to save a penny kind of worked up. It doesn't have to be that way. When I was working as a federal tax prosecutor, ...
Jul 09, 2012
As a tax lawyer, and a taxpayer, I know there is lots of fear and mistrust implicit in the relationship between Canadians and the Canada Revenue Agency. This is unfortunate, because the relationship between the CRA and ...

11 November 2014

THE BEST OF ... PROFESSIONAL DISCIPLINE-MISCONDUCT DEFENCE

I recently got to thinking: hey, if radio and televisions shows can do 'the best of' reruns, that people still enjoy and get something out of, maybe because they missed the program the first time around, or maybe because they've forgotten the original broadcast, or just maybe because the show was of sufficient quality that it was worth repeating, then why not Blog Reruns?

I know that unlike radio and television shows which don't just hang out in perpetuity in the cyber ether, blog posts are always around (until deleted), they still can be a pain to track down, and an even greater burden to gather together. So now that this Blog is about three years old, I thought I give you a few "the best of ..." posts, grouped together by topic so that you'll have all my written down collective wisdom to date on a particular topic - unless you'd like to go so far as to track down one of my academic articles, or buy one of my books.

This week, I present to you four posts concerning how best to protect and defend yourself against professional misconduct investigations and prosecutions.

For all those licensed professionals out there, allegations of professional misconduct can be an even more serious threat to you well being than civil or criminal allegations, because they strike out at the heart of your ability to earn a living, assist the public and continue to practice the trade you spent so many years learning.

I welcome your comments.

Apr 17, 2013
It's a personal decision for every professional as to when legal counsel should be retained, but I'll share with you my experience of the many professional discipline cases I work on, where counsel is retained early in the ...
Apr 10, 2012
One of the areas of legal practice I engage in is professional discipline, where I represent individuals either being investigated or prosecuted for professional misconduct offences. Just because the prosecution can't lead to jail ...
Jun 15, 2014
I have several professional discipline clients who have, in my opinion, potentially strong defences available to rebut allegations of professional misconduct levelled against them, but who lack anything more than their own ...
Jun 14, 2013
It does not preclude ongoing or completed discipline proceedings, as ongoing proceedings are only allegations, and even completed findings of misconduct are usually remedial in nature - seeking to push a professional in ...

23 October 2014

Should I Hire an Out of Town Lawyer?



In days of old, your only lawyer choice was the one whose office you walked or drove by everyday, because s/he was in your neighbourhood. While the Yellow Pages and print advertising might have provided you with slightly more choice, almost all those lawyers you saw in print were going to be locals, as mostly only locals were willing to pay the high advertising fees required to reach a particular narrow geographic market. 

The Internet changed all that. 

Now, you've got a choice of millions upon millions of lawyers worldwide. But as children know from their experience in candy stores, too much choice can be as debilitating as too little choice. How's a legal consumer to decide in a world that has gone from famine to feast of choice? 

Those who are most scared of choosing incorrectly might still go with that neighbourhood lawyer you travel by everyday. And many will stick with the tried and true method of lawyer recommendations from friends. You might wind up quite satisfied with the results from those methods. However, the problem is that legal practice (just like medical practice) is becoming highly specialized, and legal fees are increasingly spreading out across of broad spectrum of price points, meaning the local or the referral might not always be your best total value choice.

In the old days, the simple country lawyer did everything, just like the simple country doctor. Neither could afford to specialize, and their clients couldn't easily connect with any alternatives. While the surgeon/paediatrician/family doctor is long gone, the general practice lawyer does continue. You might in fact be served quite well by one, but increasingly they mostly do non-litigious solicitor work: real estate, wills & estates, incorporations, contract drafting. A lot of that kind of work is, in any case, often best done by a local in town lawyer, who has experience with the local legal landscape. 

For legal fields requiring more concentrated expertise, like appeals, tax, customs, the environment, criminal, constitutional, professional discipline, or entertainment law, it might be worth your considering hiring an out of town lawyer. There are a few reasons for doing so.

1. The out of town lawyer might have particular experience and knowledge that you are seeking.

Don't assume that even if you reside in a large city you'll be able to find available and appropriate legal expertise for your needs. For example, in a highly concentrated field like constitutional law, you might find that the local lawyers with expertise can't act for you because of conflicts of interest, or because of their current workload, or because you can't afford their rates. 

Canadian lawyers now have very flexible inter-provincial practice rules (other than in Quebec), so that an Ontario lawyer can likely come to do your criminal appeal in Vancouver, and a Winnipeg lawyer can draft you television script contract in Nova Scotia.

2. Regardless of whether you are in a smaller town or larger city, you might have found that you do not personally get along well with the available lawyers in your town, or might have found that the lawyers you have dealt with won't provide you with the level of personalized and responsive service that you require

The lawyer-client relationship is a very personal, almost intimate one, where both lawyer and client need to have confidence in the other in order for the relationship to flourish. There being all sorts of personality types, it's natural you won't get on with all lawyers you meet. Plus you might find some firms - big or small - offer overly impersonal service, where you don't hear often enough from the lawyer, and your communications aren't promptly returned. 

The Internet is an amazing facilitator of personalized and responsive service. Some of my best clients, with whom I have the best relationships, I've never met. The clients found me on the Internet, liked my level of responsiveness (sometimes being able to get back to them within minutes of being contacted, and usually within the same day), appreciated my experience (obtained practicing in most of Canada's major cities and provinces, at all levels of court), and found my rates reasonable. 

Speaking personally as a consumer, I don't care if I'm able to look a vendor in the eye when I purchase something. What I want is to hire someone who is knowledgable, who treats me with respect, who can answer all my questions, and who provides good value in the product or service I need. 

3. There may be comparative economic advantages to hiring an out of town lawyer

Becoming obsessed with avoiding travel charges from lawyers can turn out to being penny wise and pound foolish (as my Scottish immigrant parents would say), as any travel charges will usually comprise only a very small portion of a total litigation bill. If, for example, the out of town lawyer possesses three times the expertise at half the hourly rate or block fee of the local lawyer, travel charges increasing your total bill by 15% should not be a concern. 

Clearly for lower cost legal services (usually the solicitor real estate/ wills/ incorporation type of thing) you would need to be most careful about travel, but solicitors rarely have a need to travel. For high cost litigation services, you should examine reasonableness of travel costs through the lens of likely number of days in court and level of legal fees charged (be they block fee or hourly rate) for your matter. 

For example, hiring an out of town lawyer to come into town to do an appeal can make a lot of legal and financial sense. An appeal will usually only last for one day, and because no oral evidence would generally be called on an appeal, no prior in-person in town witness preparation would be required. Therefore, your travel costs to bring in out of town counsel for an appeal would usually only be one return air/train ticket or vehicle mileage, plus meals and a hotel for one night. This should be less than 15% of your total legal costs. For block fee criminal matters, out of town counsel might even build their travel charges directly into your quoted rate. 

For other technical litigation matters like tax, customs, professional discipline, and some commercial disputes, out of town counsel might also make sense because the legal arguments will all be created in the lawyer own travel-charge free office and filed with the court in advance, so that the lawyer only need come into town for a few days at most. For federal matters, most proceedings can be moved to Ottawa for hearings upon request, so regardless of where you live in Canada, you could use a lawyer close to Ottawa without worrying about travel charges.

By contrast, bringing in out of town counsel to conduct a four week fact-intensive criminal trial would lead to significantly high travel costs in proportion to legal fees. Though even those costs might be justifiable if you are receiving the level of expertise and service that you desire from that out of town counsel, and her/his legal fees are somewhat lower than local counsel. 

Legal fees charged are generally dependant on level of experience, overhead costs, and local market conditions. So, as I've been a lawyer for two decades, who has appeared in the Supreme Court of Canada several times, my fees would in theory be higher than for a second year lawyer who has only ever appeared at lower levels of court. However, overhead costs for space and staff are much higher in big cities than in small towns, and likewise larger cities tend to encourage higher legal fees being charged for litigation (although not necessarily for solicitor work like real estate). 

Thus, hiring me (as a lawyer located in a smaller centre), might be very cost effective for you in a larger urban centre like Toronto. I'm by no means inexpensive in my local market, but my expertise combined with location and service may make you conclude I'm a bargain in the big city. For solicitor matters like real estate, however, you'll usually find the best total value in retaining local counsel.