Court of Appeal puts 407ETR in its Place

Just before the Christmas holiday break, the Court of Appeal for Ontario issued a ruling against the 407 ETR corporation (“407”) on an issue that insolvency lawyers and bankruptcy trustees have suggested for years should have been obvious. The issue related to 407’s ability to have the Ontario Ministry of Transportation (“MTO”) refuse to issue or renew licence plates/stickers if the driver in question had money owing to 407 for unpaid tolls. The case involved a former truck driver and traveling sales agent, Matthew David Moore. Mr. Moore discovered after being discharged from bankruptcy and having all of his pre-bankruptcy debts expunged, that he could not renew his vehicle plate permit unless he paid the 407 at least a portion of the money he technically no longer owed to 407 (as that debt had likewise been wiped clean on the date of his discharge from bankruptcy). This inability to obtain vehicle plates would, of course, not only prevent him from legally driving on the 407, but also anywhere else in Ontario. Given his employment history, this would also appear to interfere with his ability to earn a livelihood. Such an outcome is in direct contravention to the aims of consumer bankruptcy in Canada, which laws are founded on the “fresh start” principle. Despite the federal bankruptcy regime, the 407 Act of Ontario allowed the 407 to require the MTO to suspend or refuse permits and plates to those who owed even modest sums to the toll highway company. As a result of this perverse quandary he faced after his discharge, Moore applied to the Registrar in Bankruptcy- a judicial officer in the Toronto court with oversight for bankruptcy law- for a judgment requiring 407 to notify the MTO that he was no longer indebted to them. The Registrar agreed. The 407 then appealed to a single judge of the Superior Court who overturned the Registrar’s decision, concluding that there was no apparent conflict between the fresh start concept of the federal bankruptcy regime and the ability of 407 to essentially enforce collection of a debt post-bankruptcy. Moore was set to appeal to the province’s highest court when the 407 sought to derail the appeal by offering what he said was a “sweetheart deal” to settle his outstanding debt. Fortunately, the federal Superintendent of Bankruptcy stepped in and was permitted by the Court of Appeal to argue the merits of the case for the benefit of all discharged bankrupts who found themselves in Moore’s situation, a number which I understand to be in the thousands.

In Canada, the Bankruptcy and Insolvency Act (BIA) deals with consumer bankruptcies with the aim of allowing discharged bankrupts a fresh start. The idea is that an “honest debtor” who has gotten in over his or her head (through illness, long term unemployment, marital breakdown, a failed attempt to run a business, among other reasons) would be entitled, after a period of bankruptcy, to a discharge. Once an Assignment in Bankruptcy is made (thus putting the individula into a state of bankruptcy) no unsecured creditor can continue to enforce or collect upon any debt of the bankrupt. Upon discharge, all debts, except those enumerated in section 178(1) of the BIA, would be expunged, thus allowing the now discharged bankrupt to be free of any and all debts incurred prior to the date of bankruptcy. In this manner, Parliament reasoned, the individual could move forward and rebuild their financial life free from the past encumbrances. Debts which would survive bankruptcy would include those debts incurred by fraud (one who incurs a debt by committing a fraud is obviously not an “honest debtor”); those related to child or spousal support; certain types of criminal court ordered restitution or fines. It is long settled law and policy in Canada that regardless of the fact that the fresh start principle results in many creditors ending up unpaid, to the tune of hundreds of millions of dollars a year, the consumer bankruptcy regime set out in the BIA is actually in the country’s best interests. I would suggest it is also in keeping with our national commitment to social justice and equality of opportunity.

In Ontario, however, an apparent conflict with the aims of the BIA has arisen as a result of the 407 Act. Upon discharge, although the 407 could no longer take any legal action or other collection and enforcement mechanisms to collect its toll debt from the bankrupt, it could still require payment from the discharged bankrupt in exchange for lifting the permit suspension. In essence, if one wanted to continue to legally drive in Ontario after being discharged from bankruptcy, one would be forced to make a financial arrangement to repay some or all of the pre-bankruptcy debt one owed to 407 in order to obtain plates and permits. Thus, 407 was obtaining through the back door what it could not legally do by entering through the front door.

Further, as the BIA consumer bankruptcy regime also groups together all unsecured creditors of a bankrupt (generally speaking these would include banks for unsecured loans and credit cards; other charge card companies; utility providers; private lenders including family; and often Revenue Canada) to share any assets or surplus income of the bankrupt (or more likely to all lose out in the majority of consumer bankruptcies), the 407’s ability to have the MTO suspend plates also gave the 407 an unfair position as against other creditors, granting it a superior position not intended by the BIA. In fact, this point was not missed by the Court of Appeal in deciding the case. Madam Justice Sarah Pepall, writing for the unanimous Court of Appeal panel in Canada (Superintendent of Bankruptcy) v 407 ETR Concession Company Limited, stated quite tongue in cheek, that the “407 Act should not permit (407) to occupy the collector’s lane”.

Madam Justice Pepall also conducted a very detailed historical overview of the Supreme Court of Canada’s decisions on the doctrine of paramountcy. Simply stated, this doctrine specifies that when a federal piece of legislation and a provincial Act are in conflict, the federal legislation reigns supreme. She concluded that as the doctrine of paramountcy applied and further, as the section of the 407 Act which granted the suspension powers to 407 conflicted with the fresh start purpose of the BIA, the the relevant section of the 407 Act as to be rendered inoperative. This is no insignificant decision. Given that there are approximately 25,000 bankruptcies a year in Ontario, there are presently thousands of Ontario drivers validly discharged from bankruptcy hindered from a true fresh start because they cannot obtain the necessary permit to legally drive in a province where except for those living in the core of Toronto, private vehicle transportation is necessary just to get to work. This number would have been bound to increase by several thousand a year had it not been for this decision.

While 407 is currently determining whether to seek leave to appeal to the Supreme Court of Canada, I would advise any discharged bankrupt with a permit denial as a result of pre-bankruptcy debt to immediately contact the collections department of 407. Demand confirmation that 407 will advise MTO to remove any 407 imposed restriction from their database. Given that the decision was just released I have not had any feedback on whether MTO will simply abide by the ruling of its own accord without the need for a 407 clearance notice for each individual affected driver. But the current state of the law is as set out by the Court of Appeal, which means the 407 can no longer require the MTO to withhold plate permits from discharged bankrupts. Given the thorough analysis of and reliance upon Supreme Court bankruptcy decisions and paramountcy cases, I suspect even if the matter is appealed, the reasoning of the Court of Appeal is unassailable and will be upheld by the country’s highest court.

The complete case can be found here: http://www.ontariocourts.ca/decisions/2013/2013ONCA0769.htm

On Heroes

Last night I had the good fortune to attend a Law Society seminar sponsored by the Canadian Lawyers for International Human Rights (http://claihr.ca/wordpress/). The guest speaker was retired Lt General of the Canadian Forces, Romeo Dallaire. Aside from the fact that Gen. Dallaire was remarkably enlightening speaking about his experiences and insights regarding child soldiers and conflict minerals in Africa, he is also my eldest child’s hero.

Jacob is about to turn 16, in Grade 11, currently a Sgt. in his Army Cadet corps with plans to join the Canadian Forces Reserves on his 16th birthday. If he continues to excel academically he will apply to attend Royal Military College or another university on a military ticket as a prelude to a career as an officer in our world respected military. The seminar where my son met his hero came on the heels of two other recent family events with a similar theme.

Just before the kids returned to school, Tanya and I took the three of them (Jacob and his younger twin siblings Bennie and Leora) to the AGO to view the Ai Wei Wei exhibition. Wei, of course, is the Chinese dissident artist who has endured beatings, incarceration, restricted freedom and mobility even upon release from prison, and is openly watched by the government 24 hours a day. All because he has used his art as a means to speak out against the totalitarian government of his country and the treatment of its citizens.

Also immediately before the kids went back to school we received a letter from the twins Hebrew School recently advising that their Grade 4 project this year will be the research and presentation on a Jewish hero. I have suggested my twins not only find a Jewish hero, but a Canadian Jewish hero. My daughter has settled on Rosalie Abella, the first female Jewish judge of the Supreme Court of Canada, and a woman who during her time as one of the youngest members of the Ontario Court of Appeal, and as a Supreme Court justice, wrote some significant decisions which had the profound effect of shaping our nation’s social values, including the landmark ruling that legalized same sex marriage.

Bennie is undecided as to his Jewish hero but we have been talking about the great humanitarian Stephen Lewis, or possibly Pierre Trudeau. Yes, he knows Trudeau was not Jewish, but Trudeau’s personal convictions, which motivated his politics and culminated in the Charter in 1982, forever ensured a level playing field not only for Jews, but all religious and racial minorities, gays and lesbians, and marginalized political viewpoints unprecedented in Western society.

On the subject of heroes, we discussed in contrast the achievements of the three “heroes” mentioned above with those of the various movie stars who were recently in town for the Toronto International Film Festival. I was absolutely amazed (albeit not surprised) at the coverage our local media gave to sightings of celebs- where they shopped, where they ate, and sadly, even what they had to say about current events, pseudo-events, and non-events. We live in a society where a recent study of Americans (and I have no reason to think the Canadian numbers would be any different) showed that eight of ten people knew who Miley Cyrus was and that she had recently “twerked” on national television, but only 1 of those 10 knew anything about the conflict in Syria. I suppose by this point it is actually trite to say that millions more vote for contestants on American Idol or So You Think You Can Dance than in actual elections. I point these items out simply to emphasize that our cultural obsession with celebrity has bastardized the meaning of the word “hero” as to almost devalue its meaning. Judging by the column inches and television minutes devoted to reality television “stars” and actors in comparison to stories of people of substance, it appears that true heroism is indeed in decline.

Heroes are those who DO something, who live their convictions, who do what they believe is right in the name of making the world a better place, often at great personal risk or cost. Heroes can indeed and probably should be celebrities. Celebrities, generally, cannot be heroes merely by virtue of their celebrated status.

A society needs heroes. Heroes give us hope. They embody the spirit and characteristics that we should all aspire to. They often motivate the rest of us to action that changes the world around us for the better. Some heroes choose a path of heroism, others are thrust into it.

But let us be careful of who we call a hero, or what we determine is a heroic act. Let us not cheapen the concept for our children. Let us as parents show the way by talking to the children about our heroes and their achievements, as well as how those heroes have affected us personally. Let our children enjoy all the celebrity filled media they like, but let us not forget to teach them to distinguish between entertainment and heroism, between celebrity and hero. Educate them about people who have taken the more difficult choice for purely noble reasons, even at the risk of career, personal and relationship sacrifice. These may be the famous heroes we all know or could be a unsung hero who risked life and limb to save lives in a particular situation. In my university days, I knew an elderly gentleman who had risked his life to shepherd many Jews out of Hungary after the revolution. Unknown for this heroism outside of his family and the small Hungarian Jewish community in Toronto, his actions in the face of imprisonment or even execution if he had been caught were indeed heroic. The many Polish Catholics who risked certain death at the hands of the Nazis but who nonetheless hid Jews and aided them in obtaining safe passage were of a similar kind of heroism. Heroism can also be a one-off, such as rescuing someone from drowning in dangerous waters or a burning vehicle. Heroes come in all shapes, sizes, ages, genders, races, religions and political creed. Their actions take many different forms and substance. Often, we may not realize them while they are in the midst of their heroism, but only in the fullness of time and retrospect. And we may not always agree with their cause or their actions.

But what they all have in common is a finely tuned moral compass and the placement of others before themselves. Not all of our children will grow up to heroes; in fact, most will not. But if my children develop some of the character traits of real heroes then they will be well equipped to make the world a better place even in their own small way.

Maybe There is Hope After All

I have been accused by those around me of railing against the youth of today as if I were some crotchety old man talking about how my generation was different and of being prone to starting sentences with the words “when I was young…”. And indeed I am guilty as charged. I have long held that today’s teens are the most coddled, privileged generation and that this does not bode well for the future of our country. I have opined both in previous posts on this blog, and in rants to anyone who will listen, that today’s teens lack of respect for authority; my generation’s helicopter parenting; our legal tying of the teachers’ hands; awards for participation; the educational system’s relaxing of basic grammar and spelling rules; and the advent of ubiquitous social media, will all lead to this generation of teens becoming the soft underbelly of an already spineless society. But it appears I may be wrong, and that there is hope for this generation. Real and exciting hope.

My son has been in Army Cadets for two years now, and in four weeks he leaves for his second summer of training at Canadian Forces Base. I just attended the annual review parade for his cadet troop, and came away with a sense of pride, not just in my own son but in the youth of our nation. At the annual review, as well as over the last couple of years that Jacob has been in Cadets, I have been fortunate to see a generation of teenagers at their utmost. These teens, almost equal numbers of each gender, are of course regular teenagers. I am sure when not in front of their commanding officers, teachers or parents they swear, sneak booze and cigarettes, and are sexually active. But they are also good students destined for higher education and successful careers where they will be able to support themselves and their families as well as make a contribution to the community. They are unfailingly polite, respectful of authority, have a strong work ethic, are physically fit, self-motivated, and many, if not most, possess leadership skills far beyond their years.

While I am on the subject of teens, I have, through my son, met many other of his high school classmates, who, while not in Cadets, are equally impressive. In addition to being academically inclined and demonstrating hard work and perseverance, they play competitive sports or pursue some other endeavour such as dance or music at a competition level. They hold down part time jobs to earn their own spending money, do far more hours of volunteerism than just the minimum required by their school, and have a clear idea of their future path.

So maybe hope is not lost at all. Maybe my son’s generation will be the best yet. They are growing up with the benefits of the most advanced science and technology in the history of the world. At first glance it appears they squander too much of that for superficial and banal purposes but a closer look reveals a generation who will ultimately use their own internal drive, intellect, physical abilities, and technology, to do great things for themselves and for our community. If these teens I see are indicative of what is to come, I have no worries that the future of our country is in good hands.

On Loyalty

Our beleaguered Mayor of Toronto has been in a heap of trouble lately, much of it his own doing, but an equal amount due to the deliberate attempt by his foes on council and in the media to continually portray him in the worst possible light, thus distracting him from governing effectively. While Ford’s troubles at his own hands, be they drink, food, drugs, or a refusal to take advice, his travails at the hands of his adversaries are sadly par for the course in the modern political era. Yet there is an additional source of Ford’s troubles that are neither his own doing nor politics as normal. I refer to the appalling lack of loyalty amongst his inner circle. The very people who pledged their loyalty to Ford during the election and the first couple of years of his term have almost all suddenly abandoned ship when it appeared the ship was in the midst of capsizing. Now, one cannot fault many of those people, who have their own families to support and futures to worry about, for leaving his employ to seek greener, and possibly calmer, pastures. Such self-preservation is not itself an act of betrayal. However, the willingness to speak to the media, in particular the Toronto Star, the powerful media outlet that has made the decimation of the Ford administration its raison d’etre, is the ultimate act of disloyalty. These individuals certainly had no interest in publicly badmouthing the mayor when times were good and when they felt their own resumes would be enhanced by their association with Mayor Ford. These individuals are a symptom of the larger problem in business, politics, and even day to day friendships, specifically a lack of loyalty in favour of one’s immediate gratification.

One of my favourite questions to ask of individuals when I am getting to know them and one of my favourite dinner party questions is: What is the characteristic you most value in your friends? My answer is always the same and has been since I was a teenager…loyalty.

Loyalty is  the principled notion that you can and will stand by your friend, spouse, business partner, or colleague through thick and thin, through good times and bad. Sadly, in a post-consumerist society marked by the narcissism of Facebook, YouTube, Instagram, and reality TV, loyalty now seems as quaint as family picnics on Sunday or virginity until marriage. This is truly a sad fact. Looking out for one’s best interests needn’t necessarily mean throwing someone else overboard. And when taking care of one’s own interests conflicts with loyalty, loyalty ought to win out.

This idea of loyalty as an absolute virtue raises some ethical dilemmas from time to time, but even these quandaries can be disposed of in a manner that rises above the conflict in competing values. For example, take the all too common scenario of your best friend admitting to a crime, stepping out on her spouse or of cheating their boss or on a test. Your friend has run afoul of a value or values that you hold at least a dear as loyalty. How to resolve this seeming value system showdown? Which value triumphs? I have always felt the answer is actually quite simple, and need not involve the sacrifice of either of the conflicting virtues. I would approach that person, explain my concerns with their transgressions, and encourage them to come clean, turn themselves in, get treatment etc. You have thus not only not been disloyal, but doubly demonstrated your loyalty- first by not giving them up, and secondly by encouraging them to do what is right, you may have forced them to confront their demons and start a fresh path.

I am fortunate to have many friends I have accumulated over the years, most of whom have been around for 25 or 30 years, since high school or university. Over the years, the strength of many of these friendships has waned as we become busy with careers, kids, families, mortgages, and the often inevitable distance that now separates us as a result of career or marriage related relocation. In some cases the passage of time and our different directions have left us with nothing in common except the past. Yet the friendships survive because of a sense of loyalty to one another. In simple terms, this means I may not see you for years, speak to you for months, yet when you call me for help, if it is within my power to do so, I will do my utmost even at great sacrifice of time and often money. The only reciprocity is my knowing without a shadow of a doubt that you would do the same for me.

In the course of my career I have represented many criminal law clients, and my dealings with the constabulary have developed in me a tremendous disrespect for the institution of policing. I think the way officers will lie to back one another up is an affront to our justice system and to the very Charter on which it is balanced. Yet I must confess a grudging admiration for the loyalty these officers show to their colleagues.

It is often said that there is no honour among thieves, except as most professionals involved in the criminal justice system will attest, organized crime specifically, and lesser criminals generally, have a heightened sense of loyalty. I have seen many clients plea out and accept the consequences rather than rat out their friends. It is also worthy of note that next to pedophiles, the most hated inmates in jail (and those next in need of solitary confinement for protection) are those perceived to have been disloyal. The snitches.

When the criminal underworld employs a greater familiarity with loyalty than the political and business world upon which we rely to run our country, we ought to all be concerned. And perhaps take stock of our own lives and what, if any, sacrifices we would make for loyalty to those who have earned it from us.

Anatomy of a Case

A pink monkey, a mock trial gone sideways, and plain talk from a retired deputy judge were among the surprises during a CPD event at North York Central library, May 17.

Presented by CPD On-time and sponsored in part by Tripemco Insurance, Anatomy of a Case brought together just over 60 participants, both in-person and online, via webinar.

Recently retired Deputy Judge Allan Mintz began the evening with provocative advice for paralegals. Mintz prefaced his effective advocacy talk with a warning that anyone who is easily offended may not be receptive to his comments.

Drawing on some 50 years of legal experience, Mintz said not all lawyers, or paralegals, have achieved the status of “advocate.”

“Advocacy has nothing to do with smiling and being compliant. Advocates must passionately, forcefully and authoritatively present submissions,” he said, and held forth on his opinion of the way paralegals introduce themselves in court.

“I cannot understand why paralegals indicate that they are licensed by the law society,” he said.

“There are no unlicensed paralegals. The suggestion that, because you are licensed by the Law Society, creates a new privileged category is offensive to every lawyer, including deputies who have struggled to gain some recognition through hard work, particularly if there is a deficiency in your knowledge of the law. Personally, I find the practise offensive and so do many other deputies.”
Understand the Case Law

Mintz implores paralegals to make better use of their fellow licensees and law students, who have had the benefit of more formal legal education and training than paralegals.

“Asking another paralegal with the same absence of fundamental knowledge of the law is a useless exercise,” Mintz said. Paralegals failing to use legal decisions adequately is a source of great frustration to many deputy judges. “The deputy sitting on your case is a legally trained individual who may not be receptive to anyone who either does not know the relevant law or states it incorrectly. Do not enrich yourself with legal knowledge and you will never reach the level of a persuasive advocate. I know this is a harsh reality, but it is reality.”

Mintz suggests paralegals pool their resources to obtain legal opinions from lawyers or articling students.

To “beat the other side” or “win at any cost” is not the proper role of an effective advocate, he noted; it is to assist the judge. Mintz said this is another area in which paralegals can improve.

“You’d be surprised how often I indicated that a paralegal had proved liability on the required standard, but failed to prove any damages,” for example. “If at the beginning you are aware of all the issues you must prove, including damages and referred to it, you won’t fall into this trap. The essential tools you have as an advocate are common sense, rational thinking and judicial decisions that support your submissions.”

Effective Advocacy

Mintz suggests creating a “persuasive, rational road map” when advocating, with attention to detail and a deep understanding of all relevant case law. He provided specific advocacy tips, including how to speak effectively on a matter by being prepared, brief, respectful and receptive to the justice, while focusing on only the relevant issues and evidence required for a “rational axis” of persuasion.

Another straightforward speaker at the event, Darryl Singer, interviewed a potential client — his daughter, looking to recover stolen allowance funds from her brother, and then attending on behalf of a friend, Pink Monkey.

Does Pink Monkey Present a Conflict?

Singer, a lawyer with more than 20 years’ experience, used the engaging exchange to effectively demonstrate the professional and ethical obligations paralegals face when interviewing potential clients. He touched on practical business elements of client intake, advising against such things as negotiating retainer fees and “doing a favour for a friend.”

Besides potential liability problems, “It sets you up to devalue what you do,” Singer said. “You’re providing a professional service. They have to respect your skills and knowledge. If you start off with negotiating, you will be negotiating for the whole relationship. It’s not short gain you’re going for. Think about the long game.”

Singer doubled as Deputy Judge for the mock trial which topped-off the evening. Senior paralegals George Brown and Susan Koprich demonstrated advocacy skills in a small claims matter. Relying on legal principles, legislative interpretation and case law, the pair demonstrated that quick thinking and paying close attention to the judge can turn a case around. While the plan was for the Defendant to win, Singer found in favour of the Plaintiff, who was awarded compensation for his Lamborghini repair work.

All-important Pleadings

Brown had spoken about pleadings, which are “the most important documents you will write on behalf of your clients.” He advised writing pleadings as if they will be reviewed by “the toughest judge you know.”

Brown took questions about amending pleadings, from both the attendees and webinar participants. He pointed out that paralegals are held to a higher standard than people who self-represent in court, so it is important to refer to the Rules of the Small Claims Court when crafting pleadings.

Stanley Razenberg, a paralegal at Bergel, Magence LLP, discussed legal research and provided pointers on such tricks as having case law updates sent via email. Maximizing research resources not only boosts one’s knowledge and ability, he said — it is also a great tool for networking.

Don’t Be That Person

Gail Mahadeo, a litigation lawyer specializing in professional liability, spoke about settlement conferences. She said these are “the most important element” of cases and should not be given short-shrift. “It is the first chance all the participants have to be honest,” Mahadeo said, adding that settlement conferences offer the opportunity to get a frank assessment of the case from the “fresh eyes” of a judge, deputy judge or referee.

Co-operation, preparation and asking effective questions at the best time, can propel a case forward and affect cost assessments, Mahadeo said. Ensuring the client has been briefed on courtroom etiquette goes a long way, too. “Don’t be “that person,” she advised. “If you put your cellphone on a chair and it goes off — I hear you.”

The archived webinar and supporting materials will be available at CPD On-Time.

by Elizabeth Published on Paralegal Scope Magazine

Time for Compulsory National Service

A year and a half ago my oldest son and I were in Israel. I noticed something about the teens and 20-somethings there, in contrast to those in their early to mid-20s that I encounter here, I cannot seem to get out of my mind. My son picked up on it too. The young Israelis seemed older, more mature, more sophisticated, more worldly than Canadian kids the same age. Maybe they travelled more. Maybe it was living a country that was constantly under attack. Maybe it was that every one of them knew someone or had themselves been to the front lines of a war zone. Yet while those things may have been part of the reason why Israeli youth grow up quickly comparative to their North American peers, I suspect the real reason lay in the State of Israel’s two to three year mandatory national service requirement which for most commenced upon the completion of high school.  
 

Logically, this would seem to make sense. By the time most Israelis start college or university, or join the workforce if higher education is not in the offing, they already have at least 2 years of real world experience under their belts. While this experience is often gained in a war zone, just as often it is gained in the military environment sans combat, but with military training, structure and command. For many, the national service requirement is not served in the military at all, but in a hospital, a school or government office. In any event, it is a 2 year stint at the age of 18 in which the teenagers can’t help but develop life skills, navigate work force politics, and obtain a sense of adult responsibility. They are forced to learn self-discipline, respect for authority, as well as to work under often severe conditions. Contrast that with the average middle class Canadian teen who enters university or college at the age of 18 straight from high school and Mommy and Daddy’s house, with no real world experience. After two years, most of them remain cocooned in the amniotic sac of higher education (or the post-high school work force where they are still buffeted from real world concerns as they still live at home). Thus, at 20, most Canadian kids are still just that, kids. Israelis by contrast are already adults who understand the concepts of self-starting, hard work, goal setting and responsibility. They develop the drive and focus to succeed, or at a minimum to get the job done on time and to exacting standards. Young Israelis have, ironically given the constant state of high alert of their nation, an ability to see the long game.
In his book Start Up Nation, Dan Senor (http://www.startupnationbook.com/) wrote that Israel was at the forefront of technological innovation and entrepreneurship, noting specifically that Israel had the most new businesses per year of any first world nation. This was attributed to in large measure to the military service required of young Israelis. Specifically, he writes:
                
 “No college experience disciplines you to think like [the military does], with high stakes and intense pressure,” one veteran notes, explaining how state service preps Israelis to communicate, to forge teams, and to improvise at work. 
Fortunately in Canada it is unlikely that our children, if they were required to enter the military, would ever see action in conflict. But the mere aspect of being in an environment where your parents’ money or contacts mean nothing, where you are taken out of the creature comforts of home, out of your tightly knit cabal of friends, and put in a position where you must follow strict rules and obey a chain of command will toughen up our children. For economically disadvantaged children who might not otherwise be given the opportunities afforded to those of the middle class, or teenagers who are not academically inclined, military training will provide them a much needed avenue out of poverty as it will ensure the most marginalized of our society will be guaranteed skills training and development that will make them viable members of the workforce. In some of my earlier articles on this blog I have referred to the problems created by the cycle of poverty. Compulsory national service may mitigate some of that by reducing the numbers of uneducated and unemployable.
National service, here as in Israel, does not need to mean the military. I would propose options such as teaching, hospital work, and not for profit outreach programs, where we could harness the energy and idealism of our youth in the farthest reaches of our country. In other words, if you chose to teach for your national service, it wouldn’t be at the Montessori in an upper middle class suburb, but rather perhaps an underfunded school in an under-served northern community or disadvantaged inner city neighbourhood. We could use national service programs to assist with the very social safety net of which we are so proud but which the government can ill afford to continue funding at the same levels as we have historically. This would be a much needed supplement to the social safety net while at the same time preparing our teenagers for the challenges of adulthood.
I strongly believe Canada is the greatest nation in the world. I also believe that no matter how much every generation of parents worries about the younger generation, those kids usually turn out okay, just as we did. But comfort should not mean apathy. There is much to be done and Canada can be even better. Let us not rest on our laurels. Let us strive to make every future generation the absolute best it can be, and in the process improve the social services of our country via national service, and ultimately the economy and politics by sending forth from their national service the best prepared, most informed, most mature, compassionate and responsible generation than we have ever sent before.

Truly Great

I read this morning in the Toronto Star that Garth Drabinsky was stripped of his Order of Canada.This followed an article in the same paper less than two months ago announcing the recipients of the 2012 Order of Canada, which will be handed out in the coming months.Yet all the discussion at my office, and even the lawyers’ lounges and professional offices I have attended this week centers around last Sunday’s Oscars. As anyone who knows me is well aware, perhaps my biggest pet peeve is our obsession with celebrity for celebrity’s sake.

 

My thoughts on this subject go back at least to 2004, when my Rabbi, Lawrence Englander, was awarded the Order of Canada for his 30 years of community service. His investiture into the Order of Canada recognized that over the course of more than three decades, his leadership and vision at Solel Congregation in Mississauga helped to create, among other things, a food bank which feeds over 5000 people a month, a housing project for the poor, and breakfast programs for financially disadvantaged children. In addition, he has galvanized his congregants to action in the social, cultural, charitable and political fabric of our society. I often cite him as an example of a true greatness and exactly the type of person who ought to receive these awards and the accolades of our community. The vast majority of those granted such an honour as the Order of Canada or the recent Queen’s Diamond Jubilee medals fit the same mold as Rabbi Englander.

 

I have over the years watched these Order of Canada ceremonies on local cable when the Governor General hands out the highest award this country can bestow upon a citizen. I have studied the details of the recipients each year when the announcements are made. These men and women, from all parts of the country, of all races and religions, have little in common with one another except for their remarkable achievements. Throughout their careers and their lives, they have made their communities, and the country, better places. They have impacted their respective professions, discovered and created, been shepherds, teachers, and beacons.

 

But what is truly remarkable about this year’s group of recipients (and of all years in fact) is their very ordinariness. They are not glamorous, many are not wealthy, and none of them are particularly famous by contemporary standards. They are ordinary people doing ordinary things in an extraordinary fashion. If it were up to me, the study of the lives of these individuals or at least viewing the video of the ceremonies each year would be mandatory in all schools. Why? Because in our celebrity-obsessed culture, where fame is based not on merit, but merely on wealth, glamour, or simply being famous, our children should be required to study real greatness- not in some historical context during a course but in a real life way that they can understand. It would be ideal if the one obligation that was attached to being awarded the Order of Canada would be to speak to at least one group of school children. Our children need to understand that real greatness is not found in  people who play sports for a living, or act or sing or appear in gossip pages or worse, reality tv shows. Which is not to say that none of those famous actors/musicians/athletes use their positions to make society a better place (the concept of what in Hebrew we call Tikun Olam) but even when they do, I would argue their exalted wealth and fame demands it from them and they do not necessarily deserve special praise for doing what they ought to be doing anyway. So many of these athletes and entertainers never miss an opportunity to quote the Bible or praise their God yet simultaneously forget the biblical commandment “from each according to his means to each according to his need”. My comments are not meant to detract from the very real physical gifts which bless our athletes and entertainers. Some are indeed very talented at what they do (although more are merely mediocre despite their overwhelming fame). But even the best are not great. We tend too often to confuse fame with greatness. We ascribe great personal characteristics and imbue people with a humanity and intelligence undeserved merely because they stare back at us from our media on a daily basis. All the while we ignore the real greats because they’re not part of the celebrity-industrial complex.

 

I find it distressing that the average child will, if asked, choose as a role model a Tom Brady, or a Justin Bieber, or a Kardashian of one sort or another. It reminds me of the comedian Robin Williams’ comment about some of the first FOX TV reality shows of the 90s: “it’s not the end of the world, but you can see it from there”. While our professional sports role models are clearly the best at what they do, and while most of our other acting or singing celebrities have at least a modicum of talent, they have in most instances done nothing to deserve this hero worship we foist upon them.

 

Yet we have become so enamored with the rich and famous that we forget all those who are really changing the world. Our collective apathy for the world around us has made election turnouts lower than ever before, made it more difficult than at any other time for charitable organizations to raise funds or attract volunteers, and has even made us less civilized (ruder and more impatient) in our day to day interactions with strangers. This selfishness has allowed us to forget that if we spent a little less time worshipping celebrities and a little more time improving ourselves in our own small ways, as spouses, parents, children, friends and citizens, we could make a real impact on those around us, and just maybe in the process leave a mark other than the indentation on our sofa.

 

I am reminded as I write this that the former Governor-General Adrienne Clarkson concluded the Order of Canada ceremonies some years ago with a particularly poignant quote from Aristotle on this exact topic: “Dignity is not in possessing honors, but in deserving them”.

The Decline of the English Language

Forgive me if you will the fact that I will start this article with words that would have caused me to roll my eyes had they been uttered when I was a young student-at-law a 22 years ago by my boss or my father (which may explain the eye rolling of my children and my current student-at-law when I begin conversations this way), but “back when I was your age..”. The older I get the more I catch myself beginning my rants with these words. One recent such diatribe was caused by a week of being frustrated at people around me continually using incorrect grammar and not understanding what I meant because of my choice of words- words which are obvious to me, that I knew when I was in high school, that my teenager uses in regular conversation, so I’m not just referring to some arcane legal terminology. Words most educated adults should know but too many don’t. Usually this is an issue when I am dealing with younger lawyers and staff, those in their 20s and early 30s. These are for the most part highly educated individuals, all born and educated in Canada. The fault lies with the decline of standards in our educational system; our lowest common denominator infotainment culture; and one of the few downsides to modern technological advances, namely tweet and text-based conversational shorthand.

While I concede some of the issue may be my own prickliness when it comes to language, grammar and vocabulary, the cold, hard fact is that the English language is devolving at a pace faster than reality television if that is possible. And yes, television and popular culture are certainly to blame. As is the educational philosophy I have seen in my kids’ schools over the years where they were not penalized with reduced marks for spelling or grammar (in courses other than English) as long as the substantive thoughts and answers underlying the poor writing were understandable. This decline is also a result of the lazy, abbreviated writing of text messages, tweets, Facebook posts, and email. And don’t get me started on the cocoon of self-entitlement in which that generation was raised, always being told they were great and never being dealt with honestly when they were wrong. But it is no longer, as it was just several years ago just Generation Y. The abuse of the language has now fanned upward to affect all ages. I regularly receive emails from another lawyer in their 40s or 50s (a letter which in the prehistoric days before email would have been typed and sent by regular mail on firm letterhead) that is written so flippantly that it avoids any pretense of properly using capitalization, punctuation, spelling, grammar and formality.

We now live in an age where intelligence is considered a liability, erudition is considered a vice, and the president of the United States is mocked by his critics for being an intellectual snob who can’t relate to the common folk. We live in an age where the Honey Boo Boos are lionized and celebrated, where for a politician to achieve popularity she has to dumb herself down to be “one of us”, where a book which sells 10,000 units is now considered a best seller, and where the summer’s most widely read fiction was most notable not for its erotic nature but for its semiliterate writing.

The one station in society where I would expect that language standards would be upheld is in my profession. As lawyers, we are generally paid not just for our knowledge (which anyone with the inclination can obtain) but for our ability to communicate our clients’ ideas, thoughts, positions, stories and legal arguments, better than they can, whether orally or in writing. What sets a great litigator apart from a good litigator is the ability to persuade, and persuasion is at its core about mastering the art of communication.

I still recall the days on the metaphorical knee of my mentor, the late Doug Stewart, listening to him dictate a letter, reading briefs of law he so meticulously drafted, or watching him deliver an oral argument in court. He exercised the English language as a sword to advance his clients’ interests, while simultaneously using it as a shield to protect those same clients. To him, as to the other fine lawyers of his generation, the language was a tool not just to communicate, but to communicate more effectively than others.

The greatest writers use the art of the wordsmith not just to tell a story but to have that story move us emotionally to laugh and/or cry, or to develop pictures in our heads more vivid than any celluloid screen can possibly illustrate. Language is the reason a great many voracious readers are almost always disappointed by the movie version of a book they loved.

So to end this article where I started, forgive me for sounding like some old, retired English teacher or crotchety old man, but those of my generation who teach children in our schools, mentor the younger generations in our respective professions, and all of us as parents, have an obligation to understand that the new ways are not examples of language evolving but rather devolving, and we must band together to protect our language before all of our children talk like the illiterate morons on reality television. Sadly, like it or not, our thoughts and ultimately our actions, are put in place only by the words in our heads. If the verbiage of our society is at an elementary school level, how can the thoughts and actions that follow possibly be any loftier?

What Ya Gonna do When They Come for You?

The January 4, 2013 sentencing of 5 former Toronto drug squad cops to 45 days of house arrest with not a day in jail is something that should concern us all. These five rogue cops were convicted when “jurors accepted that the defendants conducted a search of Ho Bing Pang’s Scarborough apartment in February 1998, without a warrant, then “did wilfully attempt to obstruct, pervert or defeat the course of justice, by practising deception, including by making a false or misleading account of events in their memo books, and/or by lying to the court in their testimony” to conceal what they’d done” (Toronto Star January 5, 2013 http://www.thestar.com/news/gta/article/1310868–dimanno-measly-justice-for-dirty-cops).

Even the conviction, already under appeal, seems light when all the facts are considered. There were originally many more charges stemming from multiple incidents with this particular squad. In order to secure the conviction, the Crown dropped numerous other charges, focusing on a single episode and as such the jury didn’t even hear evidence of similar unpunished actions by these officers. This fact and the leniency of the sentence simply send the wrong message to the police, not to mention to the notions of fundamental justice and fair treatment under the law, hallmarks of our legal system. My colleagues and I all have stories of officers who frequently lie by falsifying evidence, conspire with their colleagues to ensure their notes reflect the same sequence of events, steal confiscated property (including drugs), and mete out their own brand of frontier justice in the backseat of a scout car or an interrogation room with a “faulty” camera. And then there are those who are more or less honest but just plain lazy and will happily cut corners to secure a conviction rather than put in the necessary time and effort. As any criminal lawyer in the city can tell you, this sort of behaviour is so common place that it rarely raises eyebrows amongst the defence Bar any longer except as a means to secure an acquittal or negotiate a better plea for an accused client.
 
The truest measure of a just society is by how it treats its most vulnerable citizens. Another is by the extent of police powers. Canada is a beacon of fairness in this regard and the Charter of Rights and Freedoms guarantees that all citizens, and particularly those accused of a crime, are entitled without qualification to fair treatment at the hands of the state. While such mistreatment at the hands of the police is nothing new, nor is the concept of police lying under oath, we are recently starting to see much more judicial and media awareness. Note a recent case from Brampton, home to the busiest criminal court in Canada. In R. v Dinh, (http://www.canlii.org/en/on/onsc/doc/2011/2011onsc5644/2011onsc5644.html) Justice Deena Baltman found as a fact that Peel police had used excessive force against the accused during a drug sting. The accused alleged he was beaten in a hotel by the police.The judge also found that the police had refused the defendant’s right to counsel, and exceeded the authority of their search warrant.  More recently, I was recently retained on a case where the police sought to execute a search warrant against my client’s business. The warrant explicitly stated the police could search and seize all hard copy business and banking documents, but could not seize or even search computer hard drives and cell phones. Notwithstanding the clear wording of the warrant, the police took screen captures of the cell phone and carted several computers out the door right under the nose of another lawyer present at the scene warning them not to do so.

 

These sorts of goings on are par for the course. A review of the Toronto Star archive just for the last year reveals dozens of articles about individual instances of police misconduct ranging from officers lying under oath, improperly detaining prisoners and denying them the right to counsel, exceeding the boundaries of search warrants, personal use of illicit drugs, sexual harassment of those in their command, and assaulting suspects. These are just the cases that make it to light. Hundreds more dealt with  by the police in this manner every year refuse to make complaints once their cases are tossed out of court, wanting understandably to be done with the police for good. And what of the ones that somehow get shoved under the rug, when the Crown withdraws the charges, thus ensuring there could be no adverse finding against the police? And of the many harassed in some of our poorest neighbourhoods who, having not actually been arrested, feel too powerless or afraid to speak out?
 
The five Toronto drug squad officers and their supporters would say that the fact they lost their jobs is penalty enough. They, and sadly many law abiding citizens will suggest that such shortcuts are a necessary evil to get dangerous criminals off the streets because it is so difficult to obtain a conviction and keep offenders in prison long term. We hear talk of the revolving door justice system and are constantly being told our streets are unsafe, that pedophiles, drug dealers, muggers and rapists lurk around every corner. And if the police need to break some rules in order to keep the real rule breakers off the streets we will be better off for it. That, sadly, is the thinking of too many law abiding citizens.

 

Let me digress from my screed briefly to say that the vast majority of my interactions with the RCMP, OPP,  and municipal and regional police forces in Southwestern Ontario over the my 20 years as a lawyer have resulted in professional dealings with honest, decent hardworking individuals whose job is far more difficult and dangerous than mine. I have counted many fine men and women in blue among my clients over the years (for non-police related matters) and some I am proud to call friends. They chose policing for noble reasons and go about their job by the rules, accepting the inevitable flaws in the system that make their work at times seem like a Sisyphean challenge. But there remain those with a Boss Hogg mentality and such reprehensible conduct must be punished to the full extent of the law.
 
“Why should I care”, you ask? “I’m a law abiding citizen and I want to feel safe in my own neighbourhood”, you say. “I don’t want drug dealers and rapists on the street. And if I’m not doing anything wrong the police have no reason to mistreat me”, you have convinced yourself. Well, you would be wrong in those thoughts. The Association in Defence of the Wrongfully Convicted (http://aidwyc.org/) has spent 20 years trying to free wrongfully convicted in Canada. Their clients know first hand how an innocent man or woman ends up behind bars for years.The fact is you can be in the wrong place at the wrong time; look like someone else; have a nasty breakup where your ex levels allegations of spousal abuse or child molestation (and any family lawyer can tell you this happens less rarely than you might think); or be targeted by police due to people in your social or business circles doing things about which you have no idea. We cannot draw a line and say good citizens or “lesser criminals” deserve protections under the law while those “known to police” or who commit more heinous crimes are somehow less deserving. 

 

Our Charter guarantees fair treatment under the law and the assurance that our police not only must uphold and enforce the law but abide by it. Absolute power corrupts absolutely and we should all be concerned about the lenient sentence these officers received, a sentence that they would certainly not be satisfied with were they the arresting officers on crimes with such blatant disregard for human dignity. A slap on the wrist for these officers is a slap in the face to all Canadians who willingly from childhood accept what are taught about putting our faith and trust in the police. That trust has been sadly tainted yet again by the lack of jail time in this case.

Christmas Blues

This time of year always gets me down. Not really sure why since as a Jew it’s not my holiday. Perhaps it’s the endless pressure to make nice at a series of cocktail parties and holiday dinners; the fake niceness from people who are rude or dismissive all year; the overly attentive and cheerful retail workers who at any other time of year forget that they work in a customer service business. Maybe it’s that I value authenticity and abhor hypocrisy. And this time of year is full of it. People who don’t give a damn about their neighbours all year suddenly spending hundreds of dollars on gifts for their already pampered children and then as an afterthought buying some dollar store game to donate to a toy drive. People spending hundreds on a single family dinner kicking in several dollars worth of canned goods to a food drive. Or coming out of the mall, having spent hundreds or even thousands of dollars on gifts and then dropping a measly few bucks in the Salvation Army kettle only because they feel guilty if they don’t.

Don’t get me wrong. Donating toys, clothing, food and money to assist those most in need is just plain good citizenry. My sadness stems not from the fact that we do it at this time of year but rather the juxtaposition with what we don’t do all year long. When I lived and practised law in Mississauga about ten years ago, I sat for a number of years on the board of Foodpath (now the Mississauga Food Bank) the largest food bank in Peel Region, serving thousands of clients a month. At Christmas and Easter, the haul was bountiful. But there were months during the year where we were literally scraping the bottom of the barrel to make sure all those in need could be serviced, and meeting the annual operating budget was and always a concern. People who require the assistance of food banks and other front line charitable organizations require those services all year long. All the holiday talk about peace, love, and generosity of spirit, giving-better-than-receiving fades away as quickly after Christmas as the old year fades away into the new.

And what of the unnecessary token gifts and not so veiled business promotional items handed out willy nilly as if from some drunken Santa at this time of year. Not a day has gone by in the last two weeks where I didn’t receive at my office some chotchka from another law firm, court reporting service, mediation company, process serving company or other service provider to whom I pay thousands of dollars a year in fees or refer work. Little paper calendars with no room to actually write anything, date books that can’t record a scintilla of what I can put in my iphone, cheap pens, fridge magnets, mouse pads and two dollar clocks- all embossed with the logo of that particular business. If you really want to send me a logo-embossed gift, have the decency to send me something with MY firm’s name on it. Your so-called gift is nothing more than a cheap shill for your firm, a firm with which I already happily do business. And as for holiday cards, don’t need them. Get dozens every year, all cold and impersonal, recycled as fast as they arrive. The cost to your company in printing, postage and person-hours is money that could be better spent elsewhere, such as charity or community service. I don’t know the total economic cost just within in the legal profession in Toronto to all these holiday cards and gifts but it’s not hard to imagine millions of dollars. Do any of these people seriously think I would punish them by taking away my business if they neglected to send me a holiday greeting card or useless bauble with their name on it if in fact they have provided me or my clients good service over the last twelve months?

All of this money would better serve our community, and uphold the best tenets of our once highly regarded profession, were it donated to food banks, breakfast programs, social service not-for-profits, senior care programs, toy drives and the like.

And that is why none of my clients or business contacts receive holiday cards and gifts. Enough is enough. After 20 years of being sucked in, this year and in the future, if I have an extra few thousand in my promotional budget for Christmas gifts and cards, I’m divvying it up amongst some of those organizations whose need far outweighs those of me and the professionals with whom I do business.