Why Early Legal Advice and Representation in Professional Discipline Matters is Important

If you're a professional, chances are that sometime in your career you might have some form of complaint filed against you with your professional regulatory body by a client, member of the public, or the regulators themselves. If you accept that you're probably going to need a lawyer at some point in the discipline process, the real question is: when?

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 process as compared to late in the process. I've touched on this topic before in an earlier post, but want to highlight this time around the two fundamental stages to discipline proceedings, and the important consideration of insurance coverage.

INVESTIGATIONS STAGE VERSUS HEARINGS STAGE

Generally speaking there are two phases to most professional misconduct allegation regulatory processes: (1) investigations, and (2) hearings. Often these phases are broken up into sub-phases, but investigations and hearings are the two major divisions when it comes to deciding when to retain counsel. 

The reality is that a lot of people wait until the hearings stage of professional discipline proceedings to find a lawyer. I completely understand why. At the investigations stage they think the matter might just go away, they think they aren't exposed to much risk, they want to keep the matter private, they hope that their own written submissions can persuade the regulator to drop the matter, they don't think a lawyer could do them much good early in the process, and they're concerned about legal costs. 

The major factor these professionals often don't consider in delaying seeking out a lawyer is that the best chance to stop a misconduct hearing dead in its tracks is to prevent an investigation from ever getting to the hearings stage of proceedings. A lawyer is best placed to do this. 

Acting for yourself at the investigations stage, you'll be at a significant disadvantage in: (1) not having a background in the discipline procedures of your organization; (2) not being fully informed of the means and range of potential resolutions to your proceedings; (3) not being able to talk freely and negotiate with the investigator or other officials of the regulator about your case because of the risk of your making prejudicial admissions and the possible reluctance of regulators to speak frankly with the target of an investigation. 

Another important factor to consider is that legal counsel are usually far less expensive at the investigations stage than at the hearings stage. At the investigations stage, some factual and legal review, advice, negotiations and written submissions may be required, but there are no appearances before a tribunal, and no requirement to do all the work required by the many procedural steps leading up to a tribunal hearing. So early retention of counsel who can prevent a case proceeding to a hearing will save you money as well as worry. Even if your case does proceed to a hearing, the preparation the lawyer already did during the investigation stage might mean that the total investigation stage plus hearing stage legal costs would not exceed the costs of a lawyer brought in only for the hearing stage.

VERIFY INSURANCE COVERAGE

The last factor to take account of when considering the point to retain legal counsel is that you might already have comprehensive insurance coverage providing generous professional discipline proceedings coverage to pay all your legal fees at all stages of proceedings - both during the investigations stage and during the hearings stage. If so, why wait to engage that coverage. 

You do need to carefully verify your insurance policy coverage details. Insurance usually doesn't cover the defence of criminal allegations proceeding in criminal courts - though rest assured that professional misconduct allegations don't usually escalate into criminal charges. Insurance may sometimes cover civil negligence proceedings against you in civil courts, though be aware that it might be a separate insurance policy that covers the civil proceedings, or that the professional misconduct insurance may have quite different coverage terms than that civil negligence coverage. 

Consider contacting and assessing lawyers even before you contact your insurer. You may have a duty under your insurance policy to quickly report claims, so don't delay the reporting while you are lawyer hunting, but I've found that if you locate a lawyer you like prior to sorting out all the details of your insurance coverage, you insurer will usually let you use your lawyer of choice so long as his or her fees are reasonable and the work is within the scope of the policy coverage. Your official right to a lawyer of your own choice will vary depending on the terms of the policy, but I've found that insurers rarely want to interfere with lawyer-client relations, so even if in theory you are required or encouraged to use a lawyer off the insurer's "list," the insurer will usually do its best to either put your own lawyer on the list, or grant you an exception to the list lawyers. 

MAXIMIZING GAINS AND MINIMIZING RISKS

Engaging a lawyer at the earliest possible time in professional misconduct allegation proceedings could be free (if you're insured), will minimize your overall legal expenses (even if you aren't insured), maximize your chances of terminating misconduct investigations prior to their escalating to discipline tribunals, and minimize the scope and impact of any tribunal hearings that do actually happen by shaping the constellation of facts and allegations that go before the tribunal. 

Will Getting Married Help Me Immigrate to Canada as a Sponsored Spouse?

Image Credit: Library and Archives Canada

Common law spouses have in Canada and elsewhere acquired many of the rights and duties previously enjoyed only by legally married spouses. However, living common law does still not amount to the same legal existence as being married, be it where family law, tax law or immigration law is concerned.

For immigration to Canada purposes, spouses might both be trying to come to Canada, or one spouse might already be a Canadian citizen or permanent resident, and thus be potentially eligible to sponsor the other spouse as a Canadian immigrant. This post is only about the pros and cons of marriage where one spouse is eligible to sponsor.

Canadian immigration law has now extended similar rights of sponsorship to common law spouses as were previously only available to married spouses. However, being considered common law spouses requires that you have been continuously living together for at least one year prior to your immigration application. This proof of cohabitation can be a hassle. And for the spouse from a country where Canada doesn't like to issue visitor visas, because of what it may perceive as the risk that people of that nationality won't depart Canada after their visitor status expires, common law spousal status may be an impossibility unless the Canadian spouse wants to move abroad in order to co-habitate so that a common law spousal sponsorship application can happen.

Getting legally married means you don't need to prove to the Canadian government that you've lived together for even one day. You might need to show some evidence about the legitimacy of the marriage, but that's a lot easier to do than proving the legitimacy of a common law relationship. Show you had a wedding ceremony, show that your families know about the marriage, show that you care about each other through your communications/gifts/visits/children, and you're probably good to go as far as Citizenship and Immigration Canada (CIC) is concerned.

But in order to demonstrate common law status, CIC usually wants proof of joint bank accounts, life insurance policies, property ownership or leases, and affidavits from yourselves, family, friends and neighbours, in addition to your being able to precisely prove that you've been living together for a year prior to applying. Start co-habitating in Canada, then get called back to your homeland for 3 months because of a sick relative, and you've likely wrecked your chances at common law status. Brief times apart are acceptable, but it's a matter of government discretion to as how much of a separation will be considerable permissible.

You should also be aware that with same sex couples finally having the same rights to marry in Canada as opposite sex couples, the get married or don't get married for immigration debate is now as relevant for them as it is for all other couples.

To be clear, a sham marriage is not going to go over any better with CIC than a sham living together common law relationship. But the bottom line is that marriage will likely make your immigration application process go more smoothly.

If you're committed to never getting married, and can eventually qualify for common law status, the desire for immigration shouldn't make you violate your no marriage principles. But if you're like a lot of my newer couple immigration law clients who have been living together for around a year, are keen to be permanently united in Canada, and are thinking about eventually getting married but are putting off marriage for a couple of years until they are more settled, I always suggest that they carefully consider their position.

If the nature or newness of your relationship means that marriage isn't even on the horizon, then by all means proceed with a common law spousal sponsorship application. But if you have been talking about marriage anyway over the last year, and are thinking it is something you want to take care of very soon after the immigration process is finalized, you should think about whether it might be possible to get married prior to applying for immigration.

Marriage won't cure a shaky immigration application, and common law spousal status won't wreck a solid application, but marriage may make things easier. Just some food for your collective wedding cake sweet tooth.

Five Reasons Why the Tax Court of Canada is a Good Place to Litigate

The Tax Court of Canada Bench.
Photo Credit: Tax Court of Canada. 

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.

1. Electronic Filing - you can file pretty much any document that needs to be filed with the Tax Court by simply uploading it to the court's website, which is a still very rare practice in Canada. The Court even lets you file now, and pay later - you can mail in the filing fee within 5 days of filing the documents electronically.

2. Hearings and Registry Offices in Convenient Places - you can ask the Tax Court to hold a hearing almost anywhere in Canada, and it will regularly hold hearings in places as small as Wabush, Yarmouth and Percé. Plus there are registry offices for the court in every province and territory. By comparison, for many courts you're required to travel to the court, the court won't travel to you.

3. Easy to Get Hold of and Knowledgeable Registry Officers - wondering about an answer to the rules of court? Just pick up the phone, and helpful registry officers who are easy to get through to will answer all your questions.

4. Simplified Rules of Procedures - the Tax Court still has rules of procedure, no court can operate without them, but for the Tax Court the rules are a lot simpler than the ones you will find in other courts. It seems like someone carefully went through the rules of other courts when putting together the tax court rules, and threw out everything that seemed overly technical, and which would not particularly enhance litigation economy.

5. An Expert Bench - in many courts judges are supposed to be experts in a host of areas of law, but the reality is that it isn't possible to be an expert at everything. But with the Tax Court, the judges really can become experts because the court's jurisdiction is narrow enough: the Income Tax Act, Employment Insurance Act, GST/HST, CPP, Old Age Security, and a few other Acts.

Now that you're all excited about going to Tax Court, there are a few things you need to take account of before filing your appeal: (a) you will usually need to file and receive an answer to an internal objection first from an appeals or review officer within the government department that denied your claim prior to appealing to Tax Court; (b) if the taxpayer is a corporation, it must be represented by legal counsel, and (c) if your appeal is complicated, it's a great idea to be represented by a lawyer. At least in tax appeals it's often clearer than in some other types of cases as to whether hiring a lawyer is worth it, based on a comparison of the amount of tax in dispute compared to the likely legal fees to be incurred.

How Do I Make An Aboriginal Rights Claim in Court?

Map credit: NRCAN

It's now undisputed that Canadian Aboriginal peoples have rights. But if you're a member of one of those peoples, you might be wondering: "How do I claim my rights?"

You might be asking yourself questions like: "If I'm in court being criminally prosecuted or civilly sued, how do I invoke my rights?"

If you see environmental destruction being visited on your traditional territory by private interests, or witness the destruction of your community's way of life by government interests, you might wonder: "how can I use my rights in court to stop this destruction?"

The short answer is that you can accomplish a lot through relying on your rights in court, but you need to understand their limitations, and that the burden of proof falls entirely on you in court to prove those rights. 

Limitation #1: Aboriginal rights are collective rights exercisable by individuals. What this means to you is that you need the backing of your community to assert rights in court, and you need to be able to prove that you're a member of that community. There's no precise test of what an Aboriginal community amounts to for the purpose of a rights claim, or what being a member of the community requires - this is NOT a question of being on some Indian Act band list (though that can help). But you can't be out acting on your own without at least tacit or implicit community support if you expect to invoke Aboriginal rights in support of your actions.

Limitation #2: You need to be clear on whether you are advancing an Aboriginal title claim, Aboriginal treaty rights claim, or non-treaty Aboriginal rights claim. Unless you have the backing of your whole nation, and millions of dollars to spend on the litigation, don't bother with title - the courts have been clear that title exists, but don't seem to want to award it to anyone even after trials that have lasted for years! If your community is connected to a treaty - historic like those on the map above, or modern like those on the map below - carefully comb through its language to see if there is something in there which might help you. If your community doesn't have a treaty, or if the treaty isn't of any help in your particular situation, then you are left with a straight forward Aboriginal rights claim.

Limitation #3: You'll need lots of evidence to support your claim. You can't just make a bald claim of a right, and presume the court will accept it. In fact, the Crown might call evidence to rebut anything you do present, so make sure your evidence is relevant, compelling and voluminous. You might need an expert witness historian or anthropologist. If this sounds a bit much, remember that you're playing by the rules of court, not necessarily the rules of common sense. 

The most important thing you can do to make an Aboriginal rights claim work in court for you is to claim only the narrowest right which is still broad enough to assist you in your case. The broader the rights claim, the more evidence you will need, and the more nervous the court will get that granting you your claim might lead to an unpredictable domino effect throughout Canada among other Aboriginal peoples. You'd be quite right in thinking this wouldn't be such a bad thing, but remember that courts are by nature conservative institutions that worry about rocking the boat of state. 

You also really need a lawyer to make an Aboriginal rights claim work in court. There's certainly some legal work people can do for themselves, but Aboriginal rights claims can only be described as complicated and challenging to advance, even for the lawyers who are familiar with those types of cases. But you shouldn't necessarily expect to pay for all those legal costs out of your own personal pocket - these claims mainly work when a community is willing to support their costs (because there will ultimately be a benefit to the whole community), when the government agrees to provide test case funding, or the government is ordered to provide funding by a court. 

Why are there so Many Courts, and Which One Should I Turn to for Help?

Chart credit: Justice Canada

In a perfect world, we might have just one court, with one judge (or a panel of a few judges) to hear all of our legal disputes. We'd all know where to turn for help, and while we might never fully grasp all the byzantine intricacies of the rules of court, at least there would be only one set of rules to deal with.

But alas, we live in a world of reality, where courts are divided into parallel geographic jurisdictions, further divided by subject matter jurisdiction, and even further split up by levels of appellate jurisdiction. The rise of increasing government regulation has also led to a proliferation of boards and tribunals, which often act like courts, but whose hearing officers aren't judges and often aren't even lawyers.

So how many courts are there to choose from in Canada? Maybe some PHD student has tried to figure it out, but I honestly can't tell you. I would say on the low end, if you don't count boards and tribunals, and don't count sub-courts (like Drug Treatment Courts) that are really just specialized applications of larger jurisdiction courts, you would still get close to 100 courts in Canada. On the high end, with everything thrown in, you might get a number ranging up towards 1000! Justice Canada has produced a good guide to Canada's Court System, which goes into a lot more detail than is possible in this blog post.

How are you supposed to know which one to go to in order to resolve your problem? There are a few tricks:

1. figure out where you live, and ignore courts not covering your geographic area (that will get rid of about 80% of them) - although there are complex rules about in which jurisdiction you must initiate a proceeding, which could force you outside of your geographic area;

2. figure out whether you have a trial problem, or an appeal problem (that will further significantly reduce the number of courts to choose from);

3. consider what kind of legal subject you have to deal with - this is the trickiest part of the equation, as unfortunately most courts don't carry the name of areas of the law on their titles (like in Ontario, family law issues can go to the Ontario Court of Justice or Ontario Superior Court of Justice), but some do bear self-explanatory names like the Tax Court of Canada;

4. check whether the statute which created the court or articulated the court's procedure talks about its jurisdiction - like the Ontario Small Claims Court's legislation says it is limited to damages or the return of property not exceeding $25,000 in value - anything greater and you must go to the Superior Court of Justice.

You unfortunately can't even depend on a court to articulate its own jurisdiction, though court counter clerks and legal aid clinics might be able to provide you with some helpful tips. I once heard a story of two lawyers in Toronto who were always being told that their applications were in the wrong court, regardless of which court they applied to. In order to conduct the best test of jurisdiction possible, one day they brought two identical applications, returnable on the same day, in two different courts, with one lawyer of the firm appearing in one court, and the other lawyer from the firm appearing in the other court.

And what do you think they were each told by the judge sitting in each respective court? That they were each in the wrong court, and needed to apply to the other court where the other law partner was appearing on the very same day, attempting to obtain relief for the very same issue!

Aboriginal Rights in Canada: What Are the Priorities of Idle No More?

Wuikinuxv Village, Wuikinuxv Nation, British Columbia
Photo by author

A lot of you might have been wondering about what the recent protests by Aboriginal peoples and their supporters across Canada are all about. I'm a white guy - about as white as they come since most of my extended family still lives in Scotland. I'm not speaking here for Idle No More or for any particular Aboriginal people. But I've spent a lot of the last 18 years working with Aboriginal peoples all over the country. From Vancouver Island, to Nunavut, to Newfoundland & Labrador.

I've spent a lot of time listening. And observing. And feeling very welcomed.

Thus I offer I few of my own observations as an Aboriginal lawyer who now works for Aboriginal peoples in Canada, but previously worked for many years on the Federal Government side.


I'd suggest that on one level Aboriginal people want what all other Canadians want: (1) good schooling for their children; (2) adequate health care; (3) jobs; (4) safe environments for their families.

On another level, however, Aboriginal peoples have been repeatedly recognized by Canadian courts as possessing rights other Canadians don't have. Thus they want those rights respected - full stop. The challenge lies in defining what those rights are, and in adapting modern practices to historical promises.

Some out there may rail against "special rights," but when it comes right down to it non-Aboriginal Canadians are already beneficiaries of many classes of special rights based on age, parental status, residency, health or disabilities, language, or other aspects of their lives. In many respects, Aboriginal rights are already a lot more limited than other Canadian rights, as they are not individual rights, but rather "collective rights exercisable by individuals," meaning that the collectivities control how and by whom the rights may be used.


In considering why you may not be hearing a single voice or message out of the Idle No More movement, you need to understand the diversity of Aboriginal peoples in Canada. According to the Assembly of First Nations (AFN) there are at least 630 "First Nations" in Canada, but even the AFN only represents (according to its Charter ): "The Chiefs of the Indian First Nations in Canada" together with their people. Some of those First Nations are comprised of thousands of members, while others are only comprised of a few dozen members.

You also need to understand that the term First Nation usually doesn't include the Inuit people of the Northwest Territories, Nunavut, Northern Quebec and Labrador. Nor the Métis people who are spread throughout Canada, but particularly concentrated in Northern Ontario and the prairies. Nor sometimes the numerous off-reserve, non-status Aboriginal people - many of whom live in Canada's cities.


Some of these Aboriginal peoples have historic treaty rights embodied in short historic documents, while others are beneficiaries of modern treaty rights contained in exceedingly detailed and lengthy documents. And some have non-treaty Aboriginal rights like hunting and fishing rights.


Although the AFN doesn't represent everyone, it remains the most representative and largest of Aboriginal organizations, and so in considering Aboriginal change priorities its worth looking at an important document the AFN issued on 11 January 2013 entitled "Fundamental Change, Remedies and Actions Required For First Nations Immediately." This document sets out 8 brief points and is quite instructive in the consensus it shows, and the way it goes into a lot more detail than what more general Idle No More movement principles may reflect.

In summary, the eight AFN principles call for:

1. establishment of a working process for implementation and enforcement of Treaties on a Treaty by Treaty basis; 

2. reformation of the land claims process through reform of the comprehensive claims policy based on recognition of inherent rights rather than extinguishment of rights; 

3. resource benefit, equity and revenue sharing; 

4. that all new Canadian legislation should be consistent with existing Canadian constitutional and international human rights protections of Aboriginal peoples; 

5. transformation of the fiscal relationship between the Crown and First Nations;  

6. establishment of a national public commission of inquiry on violence against indigenous women and girls; 

7. a guarantee of schools in every First Nation that reflect First Nation language and culture and provide a safe and supportive place to learn; 

8. establishment of a secretariat within the Privy Council Office of the Government of Canada responsible for First Nation-Crown relations. 

It is, to be sure, a diverse list. But you need to understand that it's reflective of the diversity of Aboriginal peoples in Canada. As well as being reflective of the stark social and economic realities faced every day by many of those peoples.

ANIMAL LAW 101 Part II: CIVIL LIABILITY FOR YOUR PET

Photo credit: Natalie Rowe

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 liable for everything your animals do? Nothing worse than a kitten with cattitude, you know!

In common law jurisdictions like the U.S. (outside of Louisiana), Canada (outside of Quebec) and the U.K. (outside of Scotland), liability usually flows either generally from common law jurisprudence developed through court decisions of the past hundreds of years, or from statute law created by politicians in our legislatures.

For general common law liability principles, I offer you the reasons for judgment in Pittman v. Morin, 2010 NSSM 56, a fairly recent decision of the Small Claims Court of Nova Scotia (and no, I'm not making this one up):

This matter involved damages caused to the claimant's car by a goat of the defendant … At a time when the defendant was away on vacation his goat was being “goatsat” by another person, at 6:30 in the early morning … the claimant was driving her child to daycare and when that child exited the car the goat appeared and went after the child.   

The child’s screaming alerted the mother and older siblings who were also in the car at the time. The child tried to get away from the goat however the goat continued to try to jump on the child. Running around the car the child eventually managed to get back in the car however the goat proceeded to go after the child ramming into the car and causing damage. An older sibling who was in the car tried to get the goat away from everyone but was unsuccessful and the goat eventually jumped onto the car causing further damage.

The owner of the goat, the defendant in this case explained to the court that the goat was a very friendly goat and that it likes “kids”… He said that it was a well behaved goat and he showed the court pictures of his goat which appeared in a CBC news article under the caption of "Billy goat too gruff: neighbors" … the consensus of those that spoke in the news article indicated that the goat had a propensity  to attack and cause a general disturbance with respect to the neighbors and their property ... the law imposes a very high duty on the owner to prevent any kind of injury from such animals even if the owner believes in his own mind that the animal is harmless ...

The owner of such animals that fall within this strict liability category might escape liability if they can show ... consent of the person who is injured ... contributory negligence ... an act over which the person has no control ... an act of God ... In each of these cases ... the owner must show they used due diligence to ensure the damage did not happen ... 

For all these reasons the defendant is liable for damages caused by his goat. 

Statutory liability which modifies common law principles is sometimes stated in quite general terms, like in Manitoba's The Animal Liability Act, which defines animal as "any creature that is not human" and stipulates that "the owner of an animal is liable for damages resulting from the harm that the animal causes to a person or property, but ... the court shall reduce the damages awarded in proportion to the degree ...to which the fault or negligence of the plaintiff caused or contributed to the harm." An exception is only provided for "livestock" where the Act states there is a defence to claims for their damage when "control of the livestock was in accordance with generally accepted agricultural practice; or ... the livestock was at large due to an act of God or the act or default of [another person]."

But what if a wind storm blows down a fence that wasn't adequately maintained?

Some statute law gets very specific, like Ontario's Dog Owner's Liability Act which was already limited to only one species of animal, and which then was recently extensively amended in an attempt to ban pit bulls on the dubious assumption that such a ban would dramatically cut down on the number of serious dog bite incidents in the province.

That Ontario law states that: "The owner of a dog is liable for damages resulting from a bite or attack by the dog on another person or domestic animal" and that "The liability of the owner does not depend upon knowledge of the propensity of the dog or fault or negligence of the owner, but the court shall reduce the damages awarded in proportion to the degree, if any, to which the fault or negligence of the plaintiff caused or contributed to the damages." However, "Where a person is on premises with the intention of committing, or in the commission of, a criminal act on the premises and incurs damage caused by being bitten or attacked by a dog, the owner is not liable ... unless the keeping of the dog on the premises was unreasonable ...."

As you can see, pet owners are held to a very high standard of care when it comes to preventing their animals from injuring people or property. For non-farm animals like dogs, liability may in fact be absolute such that even a defence of due diligence will fail. I have one lawyer friend who told me that dog bite law suit cases used to be a sure fire winning part of this plaintiff practice, producing significant recovery for plaintiffs (and fees for him). You've been warned. And especially beware of goats!