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Archive for the ‘Legal Ethics’ Columns

Workplace Misconduct by Canadian Judges

Last month, the Washington Post ran a story about the abrupt removal from a form sent “to thousands of judiciary staffers who work for federal judges” of a question regarding workplace misconduct. An official quoted in the story characterized the initial inclusion of the question as “an unfortunate administrative error.” Before the question was removed, however, “34 of about 40 employees — nearly everyone who responded — indicated that they had observed some form of inappropriate behavior.” While the small sample size, and reported concerns about the broad wording of the question, make it inappropriate to draw definitive conclusions from . . . [more]

Posted in: Legal Ethics

Justice in Your Neighbourhood?

I live in Etobicoke, Toronto’s western suburb. We used to have our own courts, right here in the west end. There were family and criminal courts at 40 East Mall, and a Landlord Tenant Board outpost on Dundas Street West. Just over the Humber River, in the original City of Toronto, there was a Small Claims Court on Keele Street (pictured above). People asserting civil rights, or facing criminal charges, could visit a courthouse in their own community.

Nowadays, there isn’t a single physical court or tribunal of any kind in Etobicoke. To get to a family court or small . . . [more]

Posted in: Legal Ethics

Judging Family Violence: Recommendations for Judicial Practices and Guidelines in Family Violence Cases

There have been some recent legal developments that compel us to consider the role and responsibilities of judges in cases involving family violence. First, amendments to the Divorce ActRSC 1985, c 3 (2nd Supp), came into effect in March 2021 and the Act now stipulates that family violence is a factor relevant to the best interests of the child. Family violence is finally recognized federally as germane to judicial decisions on parenting, though it is not explicitly recognized as relevant to whether negotiated settlements are an appropriate expectation, which has important implications for the judge’s role in . . . [more]

Posted in: Legal Ethics

Challenging “Compelled Speech” Objections: Respectful Forms of Address in Canadian Courts

Pronouns are currently a hot topic in the legal profession, following recent measures by Canadian courts to prevent the misgendering of courtroom participants. Directives in British Columbia now require lawyers and parties appearing before courts to proactively identify their titles and pronouns (see the directives of the Supreme Court of British Columbia, the Court of Appeal, and the Provincial Court). Other Canadian courts have followed suit. For example, Manitoba, Nova Scotia and Ontario appellate courts encourage counsel and parties to share information about their titles and pronouns when introducing themselves in court.

Some object to these . . . [more]

Posted in: Legal Ethics

If It Wasn’t Required Before, It Is Now: All Family Lawyers Must Screen for Family Violence

Knowing which dispute resolution process to recommend to a client requires a lawyer to know whether there is family violence or a significant power imbalance. The only way to competently provide that legal advice is to have the relevant information by screening for family violence. The recent amendments to the Divorce Act, RSC 1985, c 3 (2nd Supp) and the Supreme Court of Canada decision, Colucci v Colucci, 2021 SCC 24 suggest that lawyers are required to screen for family violence to be able to competently comply with their statutory obligations. This new legal context also indicates . . . [more]

Posted in: Legal Ethics

Building Up the Rule of Law in Ontario- Ministerial Zoning Orders and the Ford Government

“Should they really be allowed to put up that building there?!” Land development is controversial, especially in areas that are growing quickly. As someone who is running for office in one such area, I have heard quite a bit about these issues from voters.

The issues are seldom black and white. Land-owners tout the economic and social benefits of building more of the homes and workplaces that the market demands. Local residents respond with their own compelling arguments, often involving the preservation of neighbourhood character, and avoiding undue strain on infrastructure and local services. In some cases, a proposal . . . [more]

Posted in: Legal Ethics

The Tax Court’s Muslim Screening Policy That Canadians Almost Didn’t Hear About

I never thought I’d be writing a Slaw column about why a Canadian court shouldn’t try to identify lawyers and litigants who could be “thought of as being” Muslim with the goal of trying to prevent those identified from appearing before a particular judge. Yet here we are.

Background

Recently it was reported that the Tax Court adopted a two-part screening initiative in relation to one of its judges, Justice David Spiro:

  1. All files assigned to Justice Spiro were to be reviewed to try to ensure that he would not adjudicate a matter that had any parties, agents or lawyers
. . . [more]
Posted in: Legal Ethics

Bullying the Green

When I was a junior family lawyer, I was representing a client at a mediation. Opposing counsel was a senior male lawyer who brought his junior, who had actually been a former classmate of mine. She was the lawyer I had been communicating with throughout the file, but at the mediation, he was the one who took point. The mediator was also male. We sat in the boardroom, at a long rectangular table. Typically, in a private dispute resolution process, neutral professionals will sit at the ends of the table – i.e.: a jointly retained mediator, family professional, or financial . . . [more]

Posted in: Legal Ethics

What’s Your Procedural Pet Peeve?

Our justice system isn’t all bad, and in some ways it’s getting better. Some things in the system might have to be difficult and complicated, because life is complicated and so is the law. But there are also plenty of things that seem unnecessarily difficult and complicated. I’m talking about things that could be fixed without a lot of controversy or money, just by thinking carefully about how they affect the system’s users.

One that has always irritated me is Rule 4 (“Court Documents”) in Ontario’s Rules of Civil Procedure. It lays out all of the technical requirements for . . . [more]

Posted in: Legal Ethics

The Updated Ethical Principles for Judges: Reaction From the Canadian Association for Legal Ethics / Association Canadienne Pour L’ethique Juridique (CALE/ACEJ)

After several years in development, the Canadian Judicial Council (CJC) has published its updated Ethical Principles for Judges (EPJ). The updated EPJ can be found here.

The Canadian Association for Legal Ethics/Association Canadienne pour L’ethique Juridique (CALE/ACEJ), of which we are President and Vice-President, has followed the revision of the EPJ with considerable interest and has offered comments and suggestions to the CJC along the way (see here, here, here, and here for CALE/ACEJ’s submissions to the CJC). Now that the updated EPJ have been released, it is time to take stock. Below we . . . [more]

Posted in: Legal Ethics

A Very Special Clarification From Ontario’s Law Society Tribunal: Lawyers Can Advertise That They “Specialize” Without Being a “Specialist”

Rule 4.3-1 of Ontario’s Rules of Professional Conduct states “A lawyer shall not advertise that the lawyer is a specialist in a specific field unless the lawyer has been so certified by the Law Society.” Similar rules are in place in other jurisdictions, although the precise language varies.[1]

The reason for the rule is straightforward. The LSO has a Certified Specialist program, intended to assist the public in determining which lawyers “have met established standards of experience and knowledge requirements in one or more designated areas of law and have maintained exemplary standards of professional practice.”[2] The . . . [more]

Posted in: Legal Ethics

Legislating a Family Law Culture Shift

On March 1, 2021, the long-awaited amendments to the Divorce Act, RSC 1985 c3 (2nd Supp) came into effect, changing the word “custody” to the more accurate “decision-making”, expanding on the best interests of the child test, creating presumptions for relocation, and for the first time, recognizing family violence. In addition to these crucial substantive changes, there has been a bubbling excitement among the family law bar about the amendments’ emphasis on resolving family law matters through non-adversarial processes. (E.g.: here and here.) Except where there is family violence, and only where “appropriate”, . . . [more]

Posted in: Legal Ethics