Internet Defamation

Date: 21 Mar, 2018

A case recently crossed our desks that I simply had to comment on. The Ontario Court of Appeal in the recent case of Rutman v. Rabinowitz set a very high watermark by awarding $700,000.00 in damages for Internet Defamation. The Defendants’ were found to have mounted a lengthy defamatory internet campaign against the plaintiff. Despite the fact that the plaintiff was not able to prove any specific injury to his reputation in the community, the court still hit the defendants on the head with one of the largest defamation awards ever granted.

The court felt that the very nature of internet defamation in which information is widely, instantly and permanently spread needed to attract the court’s heavy handed condemnation.

The case was also interesting in that one of the defendants did not actually partake in the defamation but was aware of it and did nothing to stop and indeed facilitated the process. The court held that one does not have to directly participate in making the defamatory statements to be found to be an equally liable party.

Interesting stuff as the internet, which has already revolutionized all of our lives is magnifying a very ancient area of law and the damages awarded under it.

The Client’s Best Interest: A Lawyer’s Obligation to their Client

Date: 04 Jul, 2014

Thumbnail-LogoLawyers have an obligation to provide advice that is in the best interests of their client. In providing advice, a lawyer must bring reasonable care, skill and knowledge to the performance of the professional services they undertake. Their conduct must meet the standard of care of a reasonable lawyer viewed in light of the time constraints, the nature of the client’s instructions and the client’s experience and sophistication. The standard is fairly high and lawyers, along with the various law societies across Canada, strive to maintain that. However, a lawyer can only advise their client on their options, they cannot force them to do anything. Our job is to present you with options, advise you about the strengths and weakness of each option, and then to follow through on your instructions.

Your lawyer is not an insurance police if you ignore their advice. This reality is highlighted by the recent Superior Court of Justice case of Marcus v Cochrane[i].  In that case, the lawyer, Ms. Cochrane, was acting for Ms. Marcus during her divorce. Ms. Marcus had already negotiated a separation agreement with her husband and she was seeking independent legal advice with Ms. Cochrane before finalizing the agreement. Ms. Cochrane advised Ms. Marcus that it was not in her best interest to agree to a final separation agreement without reviewing financial disclosure from her husband. Ms. Cochrane advised her client that it would be best to sign a partial agreement. Nevertheless, Ms. Marcus wanted to sign the final separation agreement, despite her lawyer’s advise against that.  Some time later, Ms. Marcus decided that the final agreement was not actually fair. She tried to sue her former lawyer for failing to stop her from agreeing to the final separation agreement. The court found that it was Ms. Marcus who chose not to follow the advice of her lawyer, Ms. Cochrane.  A lawyer can only advise about the risks and benefits involved with all the options available to their client. They cannot force the client to pursue the course of action they feel is best. Consequently, Ms. Marcus lost the claim against her former lawyer for failing to convince her to only sign a partial separation agreement.

Furthermore, Ms. Marcus had to pay a full indemnity costs award to her former lawyer. This is a rare order from the court only done when there are clear grounds to force one party to cover the other party’s entire legal costs. In this case, the court found that Ms. Marcus knew or ought to have known that her claim against her lawyer could not succeed. The evidence was overwhelmingly against her, yet she persisted in taking her matter to trial. Therefore, she is responsible for all of Ms. Cochrane’s costs associated with this claim. This is a warning to individuals who have second thoughts and want to blame their lawyer for their bad decisions.

The role of a lawyer is to provide their client with the best possible advice and to explain the risks and advantages associated with each and every available course of action. At Dale Streiman Law LLP, we rely upon the considerable expertise that our lawyers have gained over decades of practicing family law. Our job is to know and advise you on the best possible course of action given your specific case. Our role is not to force you into a courtroom or to settle for less than you deserve. We tailor our advice to your unique needs with special consideration of the financial, emotion and time costs that are present in many family law proceedings. If you’re in the midst of a divorce or a custody battle and require expert legal advice, please visit our website at www.dsklaw.com or book an appointment with one of our lawyers.


[i] Marcus v Cochrane, 2012 ONSC 146 available at http://www.canlii.org/en/on/onsc/doc/2012/2012onsc146/2012onsc146.html for the initial lawsuit and 2012 ONSC 2331 available at http://www.canlii.org/en/on/onsc/doc/2012/2012onsc2331/2012onsc2331.html for the full indemnity cost award

Summary Judgment Motions in civil matters

Date: 07 Mar, 2014

The government and the courts have been striving with limited success to reduce legal fees and to shorten the court process.

There has been available for a long time, the ability of a litigant to bring a motion for summary judgment. It gives any party to a civil litigation action, the opportunity to ask the court before trial, to make a final decision on all or part of a law suit. As an example, a frivilous lawsuit brought with no foundation could be successfully defended at an early stage by bringing a motion for summary judgment seeking to have the Plaintiffs case dismissed. Alternatively, a Plaintiff who has a rock solid case, such as the collection of debt to which only a paper thin defence filed solely to delay matters has been filed. In those circumstances, a party can ask the court in the context of a motion for summary judgment, to grant a Judgment on a motion (almost always based solely upon written material and argument by lawyers), rather than at trial.

Recently, Rule 20 of the Rules of Civil Procedure was dramatically changed and the Ontario Court of Appeal recently released its decision in five cases heard simultaneously. All of these cases dealt with the court’s interpretation of the new Rule 20. The test that the court imposed as to whether or not a motion for summary judgment should be granted, turned upon the phrase, the full appreciation test, expanded by the court asking, can the full appreciation of the evidence and issues as required to make dispositive findings be achieved by way of summary judgment or can this full appreciation only be achieved by way of summary judgment or can this full appreciation only be achieved by way of a trial?

To clarify a not particularly clear direction, would the motion judge be satisfied that there is no need for this matter to proceed onto trial, that the judge feels that he or she has all of the facts and a solid understanding of a case that does not require the time and expense of a trial.

While summary judgment motions have existed for a long time, the recent rule change and the Court of Appeal’s decision, generally referred to as Combined Air Mechanical Services Inc. v. Flesch, represents a fresh page in this evolving area of law.

Dale, Streiman Law LLP has appeared numerous times, both prosecuting and defending motions for summary judgment

ASSUMPTION OF RISK-IS THE THRILL REALLY WORTH IT?

Date: 07 Mar, 2014

It was like having the life having sucked out of you. It’s just sliding down a cable. Maybe without a tour group, it’d be kind of fun. Maybe.

Stan, South Park, TV: South Park 16.6 I Should Have Never Gone Zip lining

When Deanna Loychuk and Danielle Westgeest booked their zip line adventure at Cougar Mountain in Whistler, British Columbia, they were eagerly looking forward to their exhilarating cable line expedition through the forest. They made a reservation and followed through, ready to embark on their adventure. They were asked by Cougar Mountain to sign a release and signed it without thinking twice.

We have all done that at one point in time, foolishly, thinking we are invincible and there would be no need to worry about lawsuits and court actions when you could be the next Evel Knievel. They saw the usual title and words release of liability, waiver of claims please read carefully and nonetheless submitted the form before their excursion. They were not forced to go zip lining. No one from Cougar Mountain coerced them to engage in this thrill seeking behaviour.

The ride began and the two women collided as a result of miscommunication between the guides in control of the rides resulting in injuries to both women. Together they sued Cougar Mountain but lost at trial (2011 BCSC 193, 81 C.C.L.T. (3d) 89 and the decision was upheld at the British Columbia Court of Appeal (2012 BCCA 122 (CanLii))

Cougar Mountain admitted the accident was caused by the negligence of their staff but argued that the women had waived their cause of action by signing a valid release. The two Plaintiffs unsuccessfully argued that the release was unenforceable as it was not explained to them, unconscionable, was invalid under the BC Consumer Protection Act due to the deceptive acts of Cougar Mountain and invalid because there was no consideration. The trial judge rejected these arguments and dismissed the action.

Upon appeal, the court found that it was not unconscionable for an operator of a facility at which participants engage in inherently risky recreational activities to require that person to sign a release barring future claims citing the fact that such participation is voluntary, not mandatory.

The Judge held that the release was not unconscionable or deceptive and that the consideration for signing the release was the ability to participate in the activity, whether or not they read or understood the true meaning of the release they were giving.

Although a British Columbia case, the effects of this decision are far reaching and likely to be adopted in Ontario in similar circumstances.

What does this mean for the everyday thrill seeker? It means that one who engages in objectively dangerous activities and signs a release gives up their right to sue if something goes wrong or damage occurs, even if the fault lays with another party.

In other words, when you sign a release, you are contracting out of negligence claims, thereby giving up your common law rights without even perhaps realizing this is the case. It is only in significant circumstances will a release be set aside to restore a cause of action.

The message seems to be very clear if you participate in a risky activity, sign a waiver which has clear terms, is legible and understandable you will have no rights against a party and assume the risks yourself if an injury or damage ensues.

This case should cause people to think twice about whether or not the activity they want to engage in such as zip lining, horseback riding, sky diving or bungee jumping is really worth the risk in the long run.

Predatory Marriage, Elder Abuse and the Court’s Power to Fix Wrongs

Date: 06 Mar, 2014

Elder abuse targets some of the most vulnerable members of Canadian society. The abuse does not have to be physical; finance abuse is also a very serious threat to seniors. When this is combined with predatory marriage, Canadian seniors face real threats to the personal safety, financial security and the legacy that they intent do leave behind. Luckily, the courts have a number of tools at their disposal to counteract this form of abuse. In this blog post I want to canvas several ways in which the courts can combat financial and estate abuse.

The case of Juzumas v Baron provides an interesting case study on how the court can correct the wrongs perpetrated through predatory marriage. The facts of the case show a pattern of abuse towards an elderly Lithuanian Canadian, Mr. Juzumas. He was targeted by Ms. Baron and her son through conduct that Justice Lang characterized as reprehensible. Ms. Baron initially provided housekeeping services for free to Mr. Juzumas. As things progressed, she increasingly took control of Mr. Juzumas life. She began taking $800 a month in fees for the housekeeping services. This moved up to $1200 over time. The two eventually married, not out of mutual affection, but because she wanted to secure a survivor’s pension. The two never lived together and Ms. Baron verbally abused her husband regularly. When she discovered he had executed a will that would have denied her his largest asset, the house, she became furious. She orchestrated a transfer of the house to her son. Mr. Juzumas did not speak English, did not understand the transfer, and seemed genuinely surprised when he was told about it sometime after it was executed. Ms. Baron completely dominant Mr. Juzumas and he was dependent upon her, largely because he was terrified of ending up in a nursing home.

The court utilized the contract law doctrines of unconscionability and undue influence to render the transfer of the house unenforceable. The court also said there was evidence of non est factum (not my deed or not my deal) and that there was a lack of consideration (no money was given for the house). The facts of this case show that it was not just a bad deal that Mr. Juzumas wanted out of, there was serious wrong doing that made the contract unenforceable.

Ms. Baron also made a claim for quantum meruit, which is basically a claim for compensation for work that you have already done. In this case, Ms. Baron claimed that the months of housekeeping deserved compensation. The judge rejected this claim on several grounds. Firstly, there was never an agreement that she be paid. Secondly, she took compensation at $800 and then $1200 for most of the time. Thirdly, and most importantly, she cannot claim this type of relief because she is a wrong doer. As the judge put it, she does not have clean hands, her reprehensible behavior disqualifies her from any compensation she may have been owed.

Finally, Ms Baron also made claims to the house based on family law principles. She claimed the house was a matrimonial home, the value of which is subject to the equalization process. The judge rejected this claim on the basis that she never slept in the home, let alone ordinarily occupied it, therefore it was not a matrimonial home. The fact that it is not a matrimonial home means that Mr. Juzumas could deduct the value of the home at the date of marriage from the value of the home at separation for his net family property calculation. Ms Baron would have been able to claim a portion of the appreciation in value of the home through the equalization process. However, the judge found that the parties were validly married and separated all within the same day. Therefore, there was no appreciation in the value of the house to divide. The judge very skillfully used the family law to deny Ms. Baron any claim to Ms. Juzumas property.

This case provides a rare bright spot in the area of financial abuse of elderly Ontarians. The court was able to utilize the principles of contract law, family law and equity to deny Ms. Baron any compensation that she tried to take through her reprehensible behavior. This case involved a number of different fields of law. There were family law, contract law, wills and estates law and real estate law elements overlaid on top of a clear case of elder abuse. The interplay between these fields can be complex and requires significant expertise to sort through. The lawyers at Dale Streiman Law LLP have been leaders in these fields for decades. They have expertise on these issues and have successfully served client throughout southern Ontario.

By: Fred Streiman & Stephen Duffy
Fred-Streiman

PROVINCIAL GOVERNMENT SHORT SIGHTED IN ITS STAFFING SHORTAGES AND FAILURE TO PAY AS YOU GO

Date: 06 Mar, 2014

As any individual who has had the misfortune of attempting to file any document with the courts in Brampton or the surrounding areas, you will have learned the moto, bring a book.

The registrar or clerks office of the Region of Peel courthouse are chronically understaffed and overworked. A speed bump system of lengthy lines, which features limited number of filings, have all been incorporated in an attempt to throttle the inflow of documents in an attempt to gain a closer relationship between the available staff and the documents that are to be filed.

This blog is in no way meant to be a criticism of the court staff, but rather of the short sighted failure of the government, who are of course our representatives in their management of our tax dollars.

There are substantial court fees to be garnered by the filing of the documents. As an example a motion for a divorce Order requires a fee of $280.00.

There should be careful consideration of the concept of determining what is the true cost of the filing, managing and retrieval of such documents and setting a fee that covers those costs. As such, this would be a revenue neutral process. The provincial government rakes in annually many millions of dollars in filing fees. While the government attributes these to their general fund, the government in this author’s humble view needs to look upon all of its functions where possible on a much more business like approach. There are already provisions for those individuals that cannot afford the appropriate fees to have them reduced or eliminated in particular circumstances. That is an admirable place for our tax dollars to be spent. However, it should be part of any litigants legal fees to pay an appropriate amount of money for the something as mundane as the filing of documents.

As a society, we underwrite the enormous costs of the judiciary and its many supporting arms. This is as it should be as the administration and rule of law is what separates Canada from oppressive autocratic and often dangerous governments. Layoffs make no sense as a cost cutting measure. The government is cutting off its nose to spite the economy’s face. A well run judicial system, which includes something as simple as the filing of a court document in less than an hour should be a feature of a modern society. The countless hours wasted while waiting in line, is a drag upon the economy, one which all of us pay for and benefits no one except perhaps the publishers of newspapers, books and crossword puzzles to occupy the waiter’s time.

By: Fred Streiman
Fred-Streiman

Wrongful Dismissal

Date: 06 Mar, 2014

Your termination of employment may be justified if the employee’s behaviour includes verbal threats of violence or physical misdeeds.

In June 2010, the Ontario government changed Ontario’s Occupational Health and Safety Act. These amendments, which are described as Bill 168, place upon the employer a positive duty to deal with workplace violence and harassment. In a recent arbitrator’s award arising from a union grievance procedure, the arbitrator upheld the dismissal of a problematic employee who had over the years displayed anger management problems. There was no history of physical violence, but threats and intimidating behaviour were repeated. The employee who had twenty-eight years of seniority, was terminated by the City of Kingston after a heated discussion with a co-worker and the employee’s union president about the very issue of the employee’s return to work. The employee, who clearly had no control over her behaviour, eventually ended the argument with the union president by making an oblique death threat. The threat was reported to the City’s management team, who investigated. The City came to the conclusion that there was no choice but to terminate the employee who grieved the termination.

The arbitrator concluded that, the Bill 168 amendments to the Occupation Health and Safety Act have changed the law of the workplace in a significant way. It appears that the law of wrongful dismissal has been amended, though it must be interpreted on the facts of each individual case. Termination is not an automatic knee jerk response to every example of violence or threat, but it is to be strongly taken into account in the determination as to whether or not the dismissal is with cause.

The formula that the arbitrator produced and which will be followed closely in wrongful dismissal actions is, to what extent is it likely that this employee if returned to the workplace, can be relied upon to conduct himself or herself in a way that is safe for others? If the employer cannot reasonably fulfil its obligation to provide a safe workplace under the law, the employer’s justification in terminating the loose canon of an employee will be justified.

Dale Streiman Law LLP regularly provides advice to both employers and employees in a non-union environment on wrongful dismissal matters.

Summary Judgment Motions in civil matters

Date: 06 Mar, 2014

The government and the courts have been striving with limited success to reduce legal fees and to shorten the court process.

There has been available for a long time, the ability of a litigant to bring a motion for summary judgment. It gives any party to a civil litigation action, the opportunity to ask the court before trial, to make a final decision on all or part of a law suit. As an example, a frivilous lawsuit brought with no foundation could be successfully defended at an early stage by bringing a motion for summary judgment seeking to have the Plaintiffs case dismissed. Alternatively, a Plaintiff who has a rock solid case, such as the collection of debt to which only a paper thin defence filed solely to delay matters has been filed. In those circumstances, a party can ask the court in the context of a motion for summary judgment, to grant a Judgment on a motion (almost always based solely upon written material and argument by lawyers), rather than at trial.

Recently, Rule 20 of the Rules of Civil Procedure was dramatically changed and the Ontario Court of Appeal recently released its decision in five cases heard simultaneously. All of these cases dealt with the court’s interpretation of the new Rule 20. The test that the court imposed as to whether or not a motion for summary judgment should be granted, turned upon the phrase, the full appreciation test, expanded by the court asking, can the full appreciation of the evidence and issues as required to make dispositive findings be achieved by way of summary judgment or can this full appreciation only be achieved by way of summary judgment or can this full appreciation only be achieved by way of a trial?

To clarify a not particularly clear direction, would the motion judge be satisfied that there is no need for this matter to proceed onto trial, that the judge feels that he or she has all of the facts and a solid understanding of a case that does not require the time and expense of a trial.While summary judgment motions have existed for a long time, the recent rule change and the Court of Appeal’s decision, generally referred to as Combined Air Mechanical Services Inc. v. Flesch, represents a fresh page in this evolving area of law.

Dale Streiman Law LLP has appeared numerous times, both prosecuting and defending motions for summary judgment

What is The Common Law and how is that different from other parts of the world

Date: 06 Mar, 2014

All of Canada, (with the exception of Quebec, which maintains a civil law system) is a common law jurisdiction. The common law is a legacy of the British empire. Spread across the world all of those formerly pink coloured former members of the British empire, continue to maintain a common law system of justice. The United States, with the exception of Louisiana is a common law jurisdiction.

The main feature of a common law judicial system is that it is a body of law at least partially derived from judge made decisions rather than solely from statutes or constitutions.In common law jurisdictions, it is not unusual to see contracts, wills, and other agreements from widely separated parts of the world bear remarkable similarities. I have seen wills drafted in India, South Africa, parts of the Caribbean and all over the United States, bear many resemblances to a Will drafted in Ontario, despite the fact that the laws of wills and estates are provincially distinct.

One of the primary characteristics of the common law is that statutes and laws are passed by the legislature, however, they are relatively general in their provision. It is for judges to interpret these laws to expand upon them and at times, to create them.The common law has long historical roots. Torts, which are a civil action for a wrong, are not a closed set. The courts from time to time create brand new areas of civil wrong which can be sued upon. The most recent in Ontario in 2012 was the tort of intrusion upon seclusion, also commonly known as the invasion of privacy.

Civil law, primarily a derivative of the Napoleonic code, attempts to avoid the lack of clarity and predictability of the common law. The civil law attempts to produce a code which is all encompassing and specific. It is an attempt to create a detailed code in which the answer is available by reading that code rather than seeking a judge’s interpretation.The common law conversely is rooted in judicial history. Previous judge’s decisions are interpreted and followed. The principle of the case is absorbed into the common law. A prime example of common law is that of negligence and the standards of conduct by which persons, companies and indeed even governments are to conduct themselves. When ones conduct crosses the civil line of appropriate and safe behavior and acts in a negligent fashion, this creates a tort which in turn is the basis for a civil law suit. Almost all of these rules are judge made. They remain until trumped by a higher court or the legislature passes a specific law to amend it. An example is the Ontario Occupier’s Liability Act in which the government clarified various rules and set standards. In turn, the Occupier’s Liability Act, contains many general provisions. Those general provisions are interpreted by judges and create new judge made laws which are followed and evolve.

This long winded explanation of the differences between common law and civil law, while legally highly entertaining, is to a degree, one of the reasons why lawyers often cannot give absolute predictions as to how a case will be decided at a particular point in time. The decisions are driven by both the facts and the court’s interpretation of those facts and the law. The law is made both by the Government and Judges. Cases are recorded and are now far more readily accessible in various computer databases. I can assure you that there are few exercises more frustrating then attempting to find an earlier decided case, which contains the very same fact situation as the one presented by your client. One of the most troubling of all such circumstances is when a set of facts that the lawyer is absolutely certain is as common as hot dogs at a baseball game, has never had a recorded case directly on point. It is the lawyer’s task and a reflection of their ability to draw similarities from non similar cases and to use their powers of persuasion to convince a court as to why their client should be successful.

THE NEW TORT OF INVASION FOR PRIVACY

Date: 06 Mar, 2014

The Ontario Court of Appeal in 2012 in the case of Jones v Tsige, has created a new cause of action or a basis for suing someone. The exotic title of this is called intrusion upon seclusion. The technical components of this new basis for suing someone civilly is:

[list type=”decimal”]

  • An intentional or reckless conduct on the part of the Defendant.
  • An invasion of the Plaintiffs private affairs without lawful justification, and
  • An invasion that a reasonable person would regard as highly offensive and that causes the Plaintiff distress, humiliation or anguish.

[/list]

While this case is of great interest to experts in privacy law, it potentially has large ramifications for family law.The facts in Jones v. Tsige are based in a family law environment. Jones, was a customer at the Bank of Montreal. Ms. Tsige, worked at the Bank of Montreal and had a dispute with her common law spouse who had earlier been married to the Plaintiff, Ms. Jones. Tsige, rather than learning from her common law spouse how much support he was paying, without authorization, accessed Ms. Jones banking records. The bank became involved, and disciplined Ms. Tsige who apologized.

This fact situation has lead to the birth of a new basis upon which to sue someone, namely an intrusion upon seclusion, also known as the new tort for invasion of privacy.It is extremely common in family law circumstances, for a spouse to go rooting around in the private papers of the other, when a marriage comes crashing to an end. A relationship based upon absolute trust, quickly changes into one of absolute distrust and disbelief. Emails are intercepted, private records and letters are opened, all in an effort to discover evidence or to gain a factual upper hand. Lawyers must be careful in what they advise their clients as to what they can do and whether or not their advice may leave their clients or relatives open to an additional law suit for damages arising from an intrusion upon the other spouses seclusion. It will be interesting to see how this area of law evolves.

The Court of Appeal set some limits to ensure we realize that we are not in Kansas or the wild west of the other 49 United States. The court set an upper range of damages at $20,000.00 and in the Jones v Tsige case, it awarded damages of $10,000.00 and no costs. It would be prudent for lawyers, in the appropriate circumstances to add additional grounds of damages of intrusion upon seclusion. Another example of that is for intentional infliction of mental distress or assaults at the hands of the other spouse. For more information, please fee free to contact the family law group at Dale, Streiman Law LLP.