Archive for May, 2011

Enforcing Foreign Judgments in Ontario

Wednesday, May 18th, 2011

I received electronically the latest issue of the Ontario Reports today and it includes a decision of the Superior Court that has held that the basic two year limitation period applies to the enforcement of foreign judgments in Ontario. What is interesting is that the Limitations Act 2002 provides that there is no limitation period for the enforcement of any order of the Court or any other order that can be enforced the same way as an order of the Court (such as a decision of an administrative tribunal or even a decision of a private arbitrator in many instances). However, what the decision has determined is that this provision only applies to orders of an Ontario Court or to administrative tribunals that are covered by Ontario legislation.

In the Access Rigging Services decision, Justice McLean held that if the Ontario government had wanted to include foreign judgments in the exemption from limitation periods it could have easily added wording to this effect. Since it did not, the normal two year limitation period applies.

Why does this matter? It can matter because two years is not a long time and if you have sued someone from Ontario in a different province/country/state and then you try to locate them in Ontario but do not find them in time, it’s could be too late. It can also matter because the limitation period can be different. Ontario also has the Reciprocal Enforcement of Judgments Act which establishes a procedure for fairly easy recognition of judgments from other provinces in Canada as well as the Reciprocal Enforcement of Judgments (UK) Act which covers judgments obtained in the United Kingdom. More importantly, though, both of these acts establish a six year limitation period (and not the usual two year limitation period) for bringing proceedings to enforce non-Ontario judgments. Therefore, the question is whether you have only two years or up to six years. As of today (May 18, 2011), the six year period would apply if your judgment comes from any of the other provinces or territories in Canada EXCEPT Quebec or if it comes from the United Kingdom. If, for example, your judgment is from New York State or elsewhere in the U.S., you only have the two years and should act quickly.

Something to think about.

CALC

Um … Yeah … I Guess

Wednesday, May 18th, 2011

Sometimes I find out about a legal story that is so bizarre that it just has to be shared, but really needs little in terms of commentary. This is one such story.

I certainly feel sorry for anyone who has to work in a neighbouring cubicle or surrounding area. I also wonder how the Ontario Human Rights Commission might have found if the case were decided up here.

CALC

Neighbour Disputes – Is it Worth it?

Friday, May 13th, 2011

I was in a trial recently that settled.  In and of itself there is nothing particularly spectacular about this.  But it did get me thinking about the often futile nature of disputes between neighbours.  As in many of these cases, the catalyst was the removal of a fence.  The result was that the plaintiffs claimed that they were entitled to adverse possession and to damage for trespass against my clients and the fence builder.

A meeting among all parties was held and between myself and the fence-builder’s lawyer, we were able to show how there could not have been adverse possession, so this turned into a trespass lawsuit.  We then tried to convince the plaintiffs that they had no case whatsoever for trespass but the plaintiffs were adamant that they would proceed to trial.  (I also believe that their lawyer tried to bang some sense into the plaintiffs’ heads to no avail.)  So we proceeded through the litigation process and eventually made our way to the pre-trial conference and the pre-trial judge tried to explain to the plaintiffs that they had no case but the plaintiffs were adamant and wanted to proceed to trial.

So we went to trial.  One of the plaintiffs got on the witness stand to give evidence and did so and then it was my turn to cross-examine the witness.  By the time I was done with my cross-examination and the witness has been so thoroughly discredited that it wasn’t even clear that there was any liability on my clients’ part, let alone any damages suffered and suddenly the plaintiffs realized that they should have never sued in the first place and that they were now looking at not only losing the trial but also at potentially having to pay very significant legal costs.  Suddenly, my clients’ formal offer to settle of having everyone walk away looked like a bargain and the inquiry was made whether the offer was still available for acceptance.  Luckily for them, my clients just wanted to be done with the matter and agreed to settle and the trial did not continue – but this didn’t occur until after more than a day of trial had already been consumed.

From the plaintiffs’ perspective, this neighbour dispute ended up a total fiasco.  It was only because of the mixture of generosity and desire by my clients to make this go away that the settlement was reached and the plaintiffs avoided having to pay very hefty legal fees to my clients and the fence builder and the only losses suffered by the plaintiffs was whatever they paid their lawyer.  I can guarantee to you that if you asked the plaintiffs whether they thought the whole legal exercise was worth the time, trouble and effort the answer would be a resounding “no”.

Now let’s look at my clients’ perspective.  In the end, they probably paid as much, if not more, in legal fees for having to take this all the way to trial, and to get a significant way into the trial, before they ultimately get nothing out of the lawsuit.  Yes, they can proudly hold their heads up high and say that they did not allow themselves to be bullied by the neighbours like others had been previously.  And they can say that not only did the plaintiffs not get what they wanted but, to the contrary, my clients got at least a “moral victory”.  But, if my clients had agreed to pay even something towards the plaintiffs’ claim (no matter how lacking in merit it may have been), how much could they have saved in terms of money for legal fees, time, trouble and effort?  Whatever that number is, is the “moral victory” worth that same amount?  Maybe yes and maybe no.

My experience with neighbour disputes has been that, generally, both sides are “hot and heavy” to fight until someone realizes the real cost of the fight and quickly smartens up and says that it’s no longer worth the fight.  The end result is that the lawyers get paid, the parties go back to their homes and never speak to one another again and little or nothing concrete gets accomplished.  Was the fight worth it in the end?  That is for each party to decide at the end of the day.  But if the question is asked more often at the beginning of the day, then we might be able to resolve what is often a very (unnecessarily) emotional issue for the parties and they can avoid expensive litigation.  I had a client once who was involved in a fence dispute who burned a significant portion of her RRSP to pay for the legal fees on the dispute.  The matter resolved before going to trial.  It has probably been about 10 years since that file settled and I bet you that if I spoke with that client today and asked her if she’d rather have the value of what her RRSP would have been worth today if she hadn’t dipped into to pay for legal fees or if she would still have fought as hard as she did, I expect that she would have wished she had the higher amount in her RRSP.

Are neighbour disputes worth the costs of time, money and emotion?  Before you sue or decide to put up a big fight, it’s definitely,

Something to think about.

CALC

“Wow, Your Job is Really Boring!”

Thursday, May 5th, 2011

I was in examinations for discovery the other week with a long-time friend and at one point she turned to me and said “Wow, your job is really boring, isn’t it?”  Um, well, yes, it is, I suppose.  And I’m proud of that.

Let’s put this into a bit of context for a moment.  Most people’s experience with litigation (if they’re lucky) is to see it on television.  And what do they see on television?  The trial.  This comes in two forms: fictional and reality.  If it’s fictional, then you are able to compress what would otherwise be a one-week trial into less than an hour-long show and you only see the really interesting parts.  If it’s reality, then it’s the same thing.  In most instances trials are not televised, but you do get similar proceedings like Royal Commissions such as the Dubin Inquiry in the Ben Johnston doping scandal, or the Gomery Inquiry into the Quebec sponsorship scandals or the Braidwood Inquiry recently into the tasering of the poor Polish fellow at Vancouver’s airport, etc.  What is shown?  The “highlights” of the day’s testimony or, in other words, the really interesting stuff.  But what is not seen is the tons of time spent going through documents in minute detail to find out the truth (or at least inconsistencies between documents) or asking questions of the witness that do not result in “highlight” type answers.  While Perry Mason was always interesting because you had the person break down crying on the witness stand admitting that he or she was actually the real killer, that doesn’t happen in real life litigation.

But this “boring” aspect also sheds light on the fact that, while not always “sexy”, it does serve an important purpose.  Going back to the examination for discovery the other week when my client indicated that my job was boring.  My client was a co-defendant and the examinations were by the plaintiff of both defendants.  My client was examined first and then the other defendant.  The other defendant decided that he didn’t need a lawyer so he parted ways with his lawyer and attended the examinations by himself.  By the end of it, his evidence made him look as bad as the plaintiff was alleging he was and even worse.  Why?  Because I knew the facts backwards and forwards and the plaintiff’s lawyer knew the facts backwards and forwards and the co-defendant didn’t know what happened in what order, when, etc.  So his evidence would be that he did steps 1, then 2, then 3.  Then the plaintiff’s lawyer would say “That’s fine, Sir, but let’s look at this document that you signed.  Look at the date, so this means that, in fact, the order was Steps 1, then 3, then 2, right?”  And because the poor fellow didn’t bother to look at how his timing went, he ended up agreeing that, in fact, the order was 1, then 3, then 2.  If he had paid attention and focused on the details, he might have said, “well, no, this still means steps 1, then 2, then 3, but it’s just that step 1 took place earlier than I had thought, thank you for assisting me in that regard.”  To make a long story short, the “boring” work performed by the plaintiff’s lawyer (and by myself) and the failure to do the “boring” work by the co-defendant will now result in the plaintiff being able to put forward a “sexy” admission if this matter goes to trial and the plaintiff will try and use this admission to prove the plaintiff’s case and seriously undermine the co-defendant.

I was thinking about this comment that my job is “boring” the other day while watching the tail-end of a Blue Jays game.  The announcer, Buck Martinez, said that one of the Jays’ coaches, Brian Butterfield, was working hard with the Jays starting shortstop, Yunel Escobar, to turn him into a “boring” shortstop.  Why?  Because Escobar is great at making highlight reel defensive plays but in doing so he also sometimes takes chances that may jeopardize the ability to get the batter or base-runner out.  Instead, what Butterfield wants is less “highlights” and more guaranteed solid defensive plays.

So maybe my job is “boring” to someone else.  I don’t happen to agree, but I can see how others would see it this way.  When you think about it, though, I’m happy with that.  I’ll take “steak” over “sizzle” anytime.  Jury trials are few and far between and Judges aren’t usually impressed by “sizzle”.  So if I have a choice of being “boring” and winning or being “sexy” and losing, I’ll take being boring every time.  I know my clients will as well.

Something to think about.

CALC