The Paralegal Debate

Paralegal debate: let’s settle for ‘better’ not ‘perfect’ access to justice | Julius Melnitzer

Thursday, July 27, 2017 @ 08:32 AM | By Julius Melnitzer

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Julius Melnitzer

The current debate about paralegal representation in Ontario’s family courts, and the degree of opposition to it in the bar and judiciary, exemplify just how far the profession is removed from reality.

The lawyers and judges opposing the change rest their case on the belief that “quality of service” will erode unless those delivering the service have the equivalent of law school training. Those in favour argue that paralegal representation will reduce the number of unrepresented litigants in family court.

The counterargument to those in favour is that self-representation has actually increased since Ontario started licensing paralegals in 2007. The response is that since paralegals have not been allowed to counsel on family matters to date, the increase in self-representation in the courts generally has little bearing on the specific issues facing family law stakeholders.

In an earlier column in this publication, Joseph Griffiths, a litigator with Equilibrium Law in Ottawa, argues that the focus should be on securing “better and more objective data about the causes of self-representation in Ontario.” He cites a 2009 study commissioned by the Law Society of Upper Canada, Legal Aid Ontario and Pro Bono Law Ontario that found that only a “third of those who retained a lawyer paid more than $1,000” to receive legal assistance.” The authors of the study also concluded that “People often can’t find the legal help because they don’t know where to look, or because they perceive they won’t be able to afford it.”

The upshot, according to Griffiths, is that it is “at least arguable" that expanding the market for providers of family law legal advice will not “dramatically” lower self-representation rates. The flaw in Griffith’s argument is that we don’t know what services were obtained by the two-thirds of respondents who ended up with a lawyer’s bill of less than $1,000. What if it was mostly drafting wills or buying or selling residential real estate? The inherently ongoing nature of family law matters and the complexities involve suggest that keeping costs under $1,000, given current hourly rates, would be a challenge indeed.

Those against paralegal representation are missing the point. They fail to recognize that “quality of service” and “access to justice” don’t necessarily go hand in hand. Even sophisticated clients are telling their law firms that they don’t want gold-plated standards.

As I pointed out in an earlier column, LexisNexis research has revealed that lawyers try to provide the best advice they can while clients only want to hear what is “good enough.” Rather than recognizing the gulf between provider and customer, law firms protest that “good enough” is not sufficient and complain that clients want “Rolls-Royce service at bargain-basement prices.”

In my view, these observations are as true for the family law bar as they are for the business law bar serving high-end clients. If lawyers are going to remain relevant, they’ll have to forget about “perfect” access to justice and settle for “better” access to justice, as their clients are apparently willing to do. It’s hard to imagine that a properly trained and regulated lower-cost paralegal sector wouldn’t go some distance in easing the self-representation conundrum in family law.

Remember, for those cases that go to court, we also have judges. The combination of regulation and judicial oversight ought to weed out the incompetent paralegals as well as it weeds out the incompetent lawyers. Denying this proposition suggests that the way we regulate lawyers or paralegals, or both, is inadequate — and that’s a different issue.

As usual, opposing expansion of the legal services market or putting roadblocks in the way seems to be the default for the profession, in Canada and elsewhere. Less than 30 years ago, lawyers concentrated on fighting each other. Indeed, if the Supreme Court of Canada hadn’t decided Black v. Law Society of Alberta by allowing McCarthy Tétrault LLP to establish an office in Alberta over the fierce objections of the profession there, national firms might still not exist in this country.

The difference today is that lawyers have banded together to fight their common enemy: progress. So they oppose the expansion of paralegal services in Ontario, put the death knell to alternative business structures in Canada, prefer — according to a recent poll in the United Kingdom — to adhere to traditional models of doing business, and fight extended hours in British courts as a way of dealing with backlogs in the courts.

According to Jordan Furlong, a respected legal consultant and commentator, hope is in the offing. He points out that millennials are averse to “time-based” anything, something that will “accelerate the drive toward reliable pricing of their legal service.”

But we’re not there yet. The ninth annual Altman Weil Law Firms in Transition Survey says 65 per cent of managing partners have lost confidence in their partners’ willingness to change how they operate.

Is it any wonder so many people prefer to represent themselves.

   

The current debate about paralegal representation in Ontario’s family courts, and the degree of opposition to it in the bar and judiciary, exemplify just how far the profession is removed from reality.

The lawyers and judges opposing the change rest their case on the belief that “quality of service” will erode unless those delivering the service have the equivalent of law school training. Those in favour argue that paralegal representation will reduce the number of unrepresented litigants in family court.

The counterargument to those in favour is that self-representation has actually increased since Ontario started licensing paralegals in 2007. The response is that since paralegals have not been allowed to counsel on family matters to date, the increase in self-representation in the courts generally has little bearing on the specific issues facing family law stakeholders.

In an earlier column in this publication, Joseph Griffiths, a litigator with Equilibrium Law in Ottawa, argues that the focus should be on securing “better and more objective data about the causes of self-representation in Ontario.” He cites a 2009 study commissioned by the Law Society of Upper Canada, Legal Aid Ontario and Pro Bono Law Ontario that found that only a “third of those who retained a lawyer paid more than $1,000” to receive legal assistance.” The authors of the study also concluded that “People often can’t find the legal help because they don’t know where to look, or because they perceive they won’t be able to afford it.”

The upshot, according to Griffiths, is that it is “at least arguable" that expanding the market for providers of family law legal advice will not “dramatically” lower self-representation rates. The flaw in Griffith’s argument is that we don’t know what services were obtained by the two-thirds of respondents who ended up with a lawyer’s bill of less than $1,000. What if it was mostly drafting wills or buying or selling residential real estate? The inherently ongoing nature of family law matters and the complexities involve suggest that keeping costs under $1,000, given current hourly rates, would be a challenge indeed.

Those against paralegal representation are missing the point. They fail to recognize that “quality of service” and “access to justice” don’t necessarily go hand in hand. Even sophisticated clients are telling their law firms that they don’t want gold-plated standards.

As I pointed out in an earlier column, LexisNexis research has revealed that lawyers try to provide the best advice they can while clients only want to hear what is “good enough.” Rather than recognizing the gulf between provider and customer, law firms protest that “good enough” is not sufficient and complain that clients want “Rolls-Royce service at bargain-basement prices.”

In my view, these observations are as true for the family law bar as they are for the business law bar serving high-end clients. If lawyers are going to remain relevant, they’ll have to forget about “perfect” access to justice and settle for “better” access to justice, as their clients are apparently willing to do. It’s hard to imagine that a properly trained and regulated lower-cost paralegal sector wouldn’t go some distance in easing the self-representation conundrum in family law.

Remember, for those cases that go to court, we also have judges. The combination of regulation and judicial oversight ought to weed out the incompetent paralegals as well as it weeds out the incompetent lawyers. Denying this proposition suggests that the way we regulate lawyers or paralegals, or both, is inadequate — and that’s a different issue.

As usual, opposing expansion of the legal services market or putting roadblocks in the way seems to be the default for the profession, in Canada and elsewhere. Less than 30 years ago, lawyers concentrated on fighting each other. Indeed, if the Supreme Court of Canada hadn’t decided Black v. Law Society of Alberta by allowing McCarthy Tétrault LLP to establish an office in Alberta over the fierce objections of the profession there, national firms might still not exist in this country.

The difference today is that lawyers have banded together to fight their common enemy: progress. So they oppose the expansion of paralegal services in Ontario, put the death knell to alternative business structures in Canada, prefer — according to a recent poll in the United Kingdom — to adhere to traditional models of doing business, and fight extended hours in British courts as a way of dealing with backlogs in the courts.

According to Jordan Furlong, a respected legal consultant and commentator, hope is in the offing. He points out that millennials are averse to “time-based” anything, something that will “accelerate the drive toward reliable pricing of their legal service.”

But we’re not there yet. The ninth annual Altman Weil Law Firms in Transition Survey says 65 per cent of managing partners have lost confidence in their partners’ willingness to change how they operate.

Is it any wonder so many people prefer to represent themselves?

Julius Melnitzer is a freelance legal affairs journalist based in Mississauga. He can be reached at melnitzer@sympatico.ca.

Unwed parents in Alberta don't share financial burden once disabled child turns 18

Christina Ryan reads to her daughter, Emily, who just turned 18 but still requires constant care due to her Down syndrome and several other medical issues. (Robson Fletcher/CBC) 

A Calgary woman says an Alberta law that lets parents of children with severe disabilities off the hook for financial support once the child turns 18 — if the parents were never married — is unfair and needs to change.
Christina Ryan's daughter, Emily, has Down syndrome and several other medical conditions that require her to have constant care.
To pay for that, Ryan used to rely on child support from Emily's father.
The couple split when Emily was two but they were never married and, because of that, he is no longer required to support Emily financially, now that she's turned 18.
"I cannot keep affording to pay for her therapies, to afford for her to do all this programming that she desperately needs," Ryan said.
"If I was married to Emily's biological father, this wouldn't even be a problem. ... If we were separated or we were divorced, then he would still have to make payments to Emily, as a dependent."

As a photojournalist and photography instructor, Christina Ryan says she can't afford all the therapies and programming her daughter Emily needs, and struggled to answer when asked what Emily's adult life would be like without financial support. (Robson Fletcher/CBC)

Ryan has now hired a lawyer, Janet Russell, who is launching a legal challenge of Alberta's Family Law Act.
Russell noted that, in B.C., Saskatchewan and Manitoba, it doesn't matter whether parents of a disabled child were ever married or not.
In those provinces, she said, parents of children with disabilities are routinely required to continue providing financial support for their kids, as dependents, well into adulthood.
Ontario has legislation similar to Alberta's but Russell noted a challenge of Ontario's law under the Charter of Rights and Freedoms was launched there earlier this year.
A decision in that case was just rendered on Friday — in favour of a single mother and her 22-year-old disabled son.
Justice William Sullivan ruled that Ontario's law violates both the mother's and the son's equality rights under section 15(1) of the Charter.

Request to justice minister

Russell has formally written to Alberta Justice Minister Kathleen Ganley to request that the legislation be amended or to at least instruct the Crown not to oppose her challenge of the existing law.
Her letter outlines how Emily's parents had lived together for 10 years but were never formally married, and therefore aren't governed by the federal Divorce Act, which extends parental support obligations more broadly than provincial law in Alberta.
"If the parents of the child had been married, there would be no issue in this case," Russell wrote.
"The child would be eligible for support from the father and mother as a child who is unable to remove herself from the care of her parents due to a disability."
In an interview, Russell said it boils down to a matter of fairness.
"It's hard to understand why somebody who requires support and assistance before they turn 18 wouldn't require and be eligible for the same support after they turn 18," she said.
"It doesn't seem fair or reasonable that only one parent should bear that [cost]."
They have a court date set for July 13 but Russell doesn't expect the Charter issue to come up then.
Ganley declined to comment in detail about the case.
"Our government is always open to receiving feedback from Albertans about their personal experiences, and we understand why child support is such an important issue to families," the justice minister said in an emailed statement.
"As this issue is now before the courts, it would be inappropriate to comment further."

'Unless you've been married, you fall through the cracks'

For her part, Ryan hopes the government will agree to change the legislation to be more in line with what she sees as other principles of parental law.
"Parliament and the Government of Alberta have placed responsibility of raising a child on both parents — not just one," she said.
"So this is the role of the provincial government, to amend the legislation. ... The only other way of changing it after that would be to fight this as a Charter challenge, which would be extremely long and very expensive. And that's not something I can afford on my own."

'It would really be devastating'

Ryan struggled to answer when asked what Emily's adult life would be like without financial support.
"I never let myself go there," she said, while fighting back tears. "Because it would really be devastating."
But she said her legal challenge isn't just about her own daughter, as there are many other families in Alberta in similar situations.
"This is not just for me," she said.





"I'm doing this for every parent that is out there that is guided by this Alberta law that says unless you've been married, you fall through the cracks."

8 Reasons Why You Should Consider Including A Trust In Your Will

When talking about estate planning and tax planning, there is always quite a bit of discussion of trusts. Many people assume that because their lives and their assets are pretty simple, there is no need of using a trust. However, there are plenty of every-day situations where a trust could be just the right tool to bring about the outcome they want. The following is a brief list of some of the main reasons people use trusts. You just might see yourself or a family member in one of them

 

1. Hold for minors - A child can't inherit until he or she has reached legal age, so a child's inheritance must be held in trust until then. But it's also possible to hold a child's share past the age of majority if you feel that age is too young to handle money.

2.Protect from children's spouses - A parent who will be leaving quite a bit of money to a young person might want to hold the money in a trust to a certain age, to avoid having the money vest in the young person and be available to an unscrupulous spouse.

3. Protect from spendthrifts or addicts - Sometimes individuals need help managing their money to make the most of it, due to problems that may or may not be resolved in the future. For example, a child with a drug addiction probably should not be given a large sum of money. The child's parent can help protect the child by setting up a trust that pays the child's rent but not for the habit.

4.Hold a particular asset - A family asset such as a lake cottage may be held in a trust for a set period of time so that all of the family members can use it. The trust should ideally also hold enough money to pay for taxes, insurance and repairs of the asset.

5. Control ultimate destination of funds - Putting money in trust for individuals, as opposed to simply giving the money to the same individuals, means that if not all of the funds get used up, you can control where they end up. For example, you could set up a trust leaving money for use by your elderly parents, but if the parents don't use it up, you could direct that any money left over goes back to your estate.

6.Defer taxes - It might be a smart idea to put certain assets, say the shares of a privately-owned business, into a trust for a spouse so that the capital gains tax that would otherwise arise will not arise until the spouse passes away (or disposes of the shares).

7. Split income - If a parent is paying significant taxes on financial assets, he or she might want to put some assets into a trust, such as a family trust, so that the tax burden is shared with others in the family, or paid by the trust itself.

8. Achieve a purpose - Trusts can be set up to fund trusts that are not for an individual person but are intended to meet some purpose. An example would be setting aside some money in your Will for the care of your pets or animals after you pass away. 

These are very general descriptions, and of course there are other types of trusts as well, but this list is intended to give you some ideas about how readily trusts can be used to achieve certain estate-planning goals.

5 Reasons to Set Up a Trust.

1. See where your money goes
Most people pass down money through a will. What fun is that? You can't see how your money's used or the benefit it has on family members. Trusts can be set up for after death too, but for this story we're talking about inter-vivos trusts, or trusts that are created while the settlor is still alive.

2. Do whatever you want with the assets
One of the benefits of a trust is that the settlor can instruct how his or her money should be distributed. A gift, which is another way people pass down money, doesn't come with any strings attached, so the people receiving the money can do whatever they want with it. That works for some people, but not for others.

For instance, you might want to help fund a grandchild's education. You can set up the trust so that a certain amount of money is released before every school year, rather than at one time. Or, if you have a spendthrift kid, you can give them money from the trust at certain times of the year.

3. Avoid probate
Assets in a trust are not subject to after-death probate taxes. While the trust will have to pay capital gains tax on investments or property that gains in value (either every 21 years or when an asset is sold), no other taxes have to be paid when the settlor dies. This could save an estate a ton of money.

4. Pass down more than just money
While most trusts contain investments or cash, you can put pretty much anything in a trust. One common asset that gets the trust treatment is property, like a cottage. It's often an easier way to get kids to share a vacation home than by letting them figure out the details themselves. That's because you can dictate a set of instructions covering things such as who gets to use it when and how taxes and maintenance are covered. The trust will pay the expenses, either out of the trust itself or by having the trustee collect cash from the kids.

5. Keep your wealth a secret
When you die your will becomes public. Anyone can find out what assets you had and who got what. That, not surprisingly, irks a lot of people, especially Canadians who have a lot of money. A trust keeps all those details private. You can do whatever you want with your money and no prying eyes will ever find out.

With a lot of wealthy boomers about to retire, trusts are becoming more popular. Understandably, people want to protect their assets and get a chance to experience the benefits of their wealth. If this appeals to you, talk to a lawyer or bank -- they can set one up. You can also appoint any trustee you want, such as a family friend, a trusted coworker or even a trust company. Whoever it is, make sure you can, well, trust them with overseeing your assets.

SHOULD YOU HAVE A LIVING TRUST INSTEAD OF A WILL?

For some time, people set up living trusts almost exclusively to save on taxes. Today, they are used to avoid Probate and for other important purposes as well. Many articles have been written to explain living trusts. All of those I have seen are too technical, contain wrong information, or come to conclusions I disagree with. This article explains the living trust as I see it. It is not meant to be a comprehensive discussion of the subject, but it should help you to understand a typical living trust and its plan.

What is a living trust?

• It is imaginary, a "legal fiction." You will never meet a "trust" walking down the street. Trusts have been created and used by lawyers for several hundred years for a variety of purposes (most often to avoid taxes).
• It is created by a trust document, either a "trust agreement" or "declaration of trust."
• The trust document designates one or more individuals or corporations to act as "trustee."
• The trustee is directed to accept title to or ownership of property, either real property or personal property. The property in the trust is sometimes referred to as the trust "corpus" or "res."
• The trustee owns property "as trustee" only, not individually.
• The property is to be held and used for the benefit of one or more "beneficiaries."
• The trust document sets out in detail how the trust is to be administered. It contains the directions of the person who sets up the trust (the "grantor" or "settlor"). If it is properly drafted, that document will guide the trustee and the beneficiaries throughout the entire term of the trust.
• The trustee is a "fiduciary" towards the beneficiaries. That means that the trustee must act at all times in the interest of the beneficiaries, not the interest of the trustee. The document is called a "trust" for good reason. The trust beneficiaries place their "trust" in the "trustee" to follow the directions of the trust document.
• You might find it easier to think of a trust like a corporation, partnership, or other business. The business is kept separate from its owners and is governed by its own organization and documents. In many ways, a living trust is like a "business" for an individual's "personal" affairs.

There are different kinds of trusts. A trust included in a will (which is to take effect only after a person dies) is called a "testamentary" trust. A trust set up during a person's life is called an "inter vivos" trust or "living" trust. This is not the same as a living will, which directs removal of life support in the face of certain death. A trust that can be changed after it is signed is called "revocable."

A trust that cannot be changed is called "irrevocable." Irrevocable trusts are most often used in estate tax planning or where the grantor wants to lock in certain terms of the trust. Most people want to keep their trusts flexible and set up revocable trusts.

This article will deal with the revocable living trust. I will first describe the most common plan and then explain the advantages and disadvantages of that plan.

Documents
The most important document in the plan is the living trust itself. The trust document names the trust, names the trustee (usually the grantor) and one or more successor trustees, gives the trustee powers, and directs the administration of the trust for as long as it exists. Most of those provisions are fairly standard from one trust to another, except for names. The trust may specify the property to be transferred to the trust, but most trusts can and do accept any property transferred to them.

The trust then says how the trust is to be run during the grantor's lifetime. The grantor is usually paid from the trust whatever he or she wants, asks, or needs. The trust usually provides for support of the grantor's spouse and children, if any. The grantor can specify exactly what he or she wants done with the trust assets and income.

Finally, the trust specifies what to do with the property left in the trust after the grantor dies. At that point, the trust operates much like a will and serves a similar function. However, distribution can be made directly from the trust without the necessity of Probate and its additional requirements and expense.

The second document in the plan is called a "pour-over" will. Why do you need a will if you have a trust? The trust can only affect property that is specifically transferred to it. The will acts on any property that is not transferred to the trust. The will provides for collection of that property, payment of Probate expenses, and transfer of whatever is left to the trust. In effect, whatever is left in the Probate estate "pours over" into the trust and is then administered according to the terms of the trust. The will can also name guardians for minor children and can address other matters that do not relate only to "assets."

Once the pour-over will and the trust are executed, the job is not completed. It is vital to transfer assets to the trust! Real estate must be deeded from the grantor(s) to the trustee(s). Stock, bank accounts, and other assets which are registered in individual or joint names must be transferred to and re-registered in the name of the trust. Insurance policies and other assets payable on death should be changed so that the trust is beneficiary (and perhaps the owner). Personal property should be transferred to the trust. The goal of the plan is to funnel all of the assets into the trust either by transferring them directly to the trust, having them paid directly to the trust upon death, or passing them through the Probate estate via the will to the trust. Once everything is in the "pot," the trust can do its work.


Advantages of the Living Trust

• When the trust is done right, it works like magic and avoids all Probate! It even avoids multiple Probate proceedings in different states where real estate or other assets are located.
• Money and assets are distributed sooner.
• The trust is private, although not totally. Some financial institutions may require or request copies of the trust agreement before complying with its terms, but there are virtually no "public" aspects as with Probate.
• Save Lawyer's fees and costs. Assets are transferred to the trust while the grantor is alive and competent, and multiple sets of bank accounts are not necessary.
• A more orderly process. Without a trust, it is often more difficult to find asset information at death and to collect the assets.
• Flexible. So long as the grantor's intentions can be expressed in words, they can be embodied in a trust.
• Easy to amend. A trust can be amended by a document signed only by the grantor. No witnesses or other formalities are necessary as with a will or codicil. The reduced cost of amendments may ultimately save some of the additional up-front costs of a living trust.
• Less important if the original documents are lost. Copies of a trust document can substitute for a lost original. .
• A trust is more difficult to contest than a will or codicil, because the grantor not only signed the documents but acted on them.
• So long as all interested parties agree, it is easier to "change" the terms of a trust than a will, even after the grantor dies or becomes incompetent.

Disadvantages of the Living Trust

• Up-front costs are more than for a will.
• Assets must be properly transferred to the trust. Time must be spent by the grantor after the trust is set up to see that all of the transfers are made. If they are not, the trust may provide little or no savings, and Probate may still be necessary.
• Claims of creditors of an estate are cut off six months after appointment of the executor (with some exceptions). Claims against a trust can be pursued for two years from the date of death.
• Some assets may not be held in a trust without adverse income tax effects.

Neither Advantages Nor Disadvantages But Important

• A will is still necessary, although it is simpler, is less likely to need updating, and will probably never have to be "used."
• Based on the plan set out above, there is no savings of Federal Estate Taxes or attorneys' fees spent in preparing a Federal Estate Tax return. So long as the grantor has any power over the trust, a trust has no effect on death taxes. 

Conclusion

I heartily recommend living trusts for most of my clients, but each situation must be separately evaluated. A living trust has many advantages, but it also has some disadvantages. Advantages for one individual or couple can be disadvantages for others. There is nothing wrong with a will, and it is much better to have a will than not to plan at all. Still, most individuals and couples will ultimately save by use of a living trust.

Why do I promote something that will avoid Probate when I earn significant fees each year from handling Probate matters in Court? Doesn't that ultimately hurt my practice? Maybe so, but I do it because it is right. Most Probate is truly "unnecessary." When the law requires Probate, it must be done. The end result, however, whether through Probate with a will or through a living trust is almost always the same. Bills and taxes are paid, and the assets are distributed to those who are supposed to receive them.

I hope this explanation has helped you to understand living trusts. Each person or couple should discuss with their attorney (hopefully, me) whether or not to set up a living trust and how to do it after reviewing the size and nature of the estate, the goals desired, and the fees and costs to be spent. While there are many do-it-yourself kits and computer programs available, you use them at your own risk. Even attorneys make mistakes that can destroy a client's objectives. Virtually every attorney who prepares living trusts can tell you horror stories about clients who committed malpractice on themselves. You are always safer with proper legal advice, and the least expensive is not always the best. A sign I saw in another lawyer's office said it well:

•  "If you think hiring a professional is expensive, just wait until you hire an amateur

Condo rule changes in the works for Alberta

WATCH ABOVE: More people are living in condos and Alberta is making changes to make that living easier. From bitter disputes between owners and property managers to special repair fees, there are many challenges. Vinesh Pratap reports.

A A

The slow, bureaucratic process of making changes to the province’s condo act is underway.
“I’ve heard some heartbreaking stories of bullying and harassment,” Service Alberta Minister Stephanie McLean said. “I’ve heard stories of extreme financial loss.”
McLean spoke with Global News hours before an open house took place in Edmonton to gather feedback.

“We want to ensure that condos are a good option for Albertans,” McLean said.

READ MORE: Province hopes new act will improve condominium living in Alberta
In late 2014, the legislature passed changes to the condo act. Now, the focus is on developing new regulations for the amendments.
“It has been disappointing, though, the length of time it has taken to move these amendments into law,” said Edmonton lawyer Robert Noce, with the firm Miller Thomson.
Noce is paying close attention to see how the regulations develop.
As part of the changes, a dispute tribunal process is on the table as an alternative to the court system to deal with disputes.
“Many people cannot afford to litigate or deal with a particular issue in their building and so the issue never gets resolved,” Noce explained.

“There’s certainly no end of problems at the moment,” McLean said.

It’s estimated about one in four Albertans lives in a condo; a number expected to increase with a focus to grow up instead of out.
READ MORE: Bill aims for more condo owner protection: Alberta government
“There’s definitely a disconnect between potential purchasers and condos and fear in the marketplace about what condo life can be like,” McLean said. “I want to get rid of that.”
The changes are expected to be brought into place in 2018.

Alberta lawyer potentially faces costs

Written by Alex Robinson Friday, 14 July 2017

An Alberta judge has ordered a lawyer to explain why she should not be held personally responsible for costs against her client after advancing a “futile application” on his behalf.  Court of Queen’s Bench Justice Denny Thomas is considering potential costs personally against Priscilla Kennedy, of DLA Piper (Canada) LLP, for advancing litigation that is “abusive and vexatious nature” and could potentially be a “serious abuse” of the judicial system  Kennedy’s client, Maurice Stoney, brought an application in 1985 Sawridge Trust v Alberta (Public Trustee), 2017 to be added as a beneficiary of a trust set up for members of the Sawridge Band along with 10 other brothers and sisters. Stoney is the son of parents who had been members of the Sawridge First Nation at one point, but gave up their status for an enfranchisement payment. Thomas found that the courts had already decided the issue in Stoney v. Sawridge First Nation and that Stoney’s argument had already been rejected.

Thomas noted that Stoney did not pursue all available appeals in the earlier proceedings, but he cannot now “attempt to slip into the Sawridge Band and 1985 Sawridge Trust beneficiaries pool ‘though the backdoor’.”“…This application is a collateral attack which attempts to subvert an unappealed and crystallized judgment of a Canadian court which has already addressed and rejected the applicant’s claims and arguments,” Thomas said.“This is serious misconduct, which will have costs implications for Maurice Stoney and also potentially his lawyer Priscilla Kennedy.”

Paul Paton, the Dean of Law at the University of Alberta, says that while this is an interim decision, the judge is sending a clear signal as to what the courts’ expectations are for lawyers’ conduct. “Lawyers play a critically important role in the administration of justice and are often caught between a rock and a hard place,” Paton says.“You’ve got your responsibilities to your client and you’ve got your responsibilities to the court." Paton says that costs are rarely awarded against lawyers personally and that this decision shows courts are looking to take control of their process.

The Supreme Court of Canada recently upheld costs awarded against a criminal defence lawyer personally in Quebec (Criminal and Penal Prosecutions) v. Jodoin.  Whether or not Kennedy will avoid costs could largely hinge on whether she is able to argue that something new was being litigated in this proceeding, Paton says. “It’s got to be anchored in the good faith argument that there actually was a case to be made here and that’s where… there is a bit of back and forth about which previous decisions either apply or bind the court,” Paton says.

Another issue that could affect the outcome is the fact that Thomas had limited the scope of the application to Stoney alone, as there was no evidence before him that the “10 living brothers or sisters” named had taken any steps to be involved in the litigation.

While Thomas found that Stoney’s application had no merit and was “abusive in a manner that exhibits the hallmark characteristic of vexatious litigation,” Stoney has not been declared a vexatious litigant yet. Thomas will determine that at a later date, and he has invited Stoney to make written submissions by Aug. 4 as to whether his access to courts should be restricted.

In the meantime, Thomas has prohibited Stoney from filing any material in Alberta courts without the permission of the chief justice, associate chief justice or chief judge.  Paton says it is too early to say whether this matter could create a chill on lawyers accepting difficult cases, but that lawyers should pay close attention to the proceedings. “It’s a stay tuned message, but with some really important signals for lawyers and the bar,” he says. Kennedy, who did not respond to requests for comment, is set to appear before the court to make her submissions on July 28.  Doris Bonora, one of the lawyers representing the trustees of the trust set up for the members of the Sawridge Band, did not respond to requests for comment.