Return of the Corvée?

Most of us sat through history lessons on the seigneurial system in New France. (History was very badly organized in the Ontario curricula in the 1970s and early 1980s and so I had to take it three times before Grade 10!) In those classes we became familiar with the term "corvée", which is "labour, often but not always unpaid, that persons in power have authority to compel their subjects to perform". They key words, naturally, are "unpaid" and "compel". These words came to mind today as I sat through my Law Society webcast of The Annotated Retainer Agreement.

Ms. Sharon Shore of Epstein, Cole, (a very respected Toronto family law firm) gave a presentation on retainers in family law cases. One of the things that she has noted is that courts are increasingly requiring lawyers in family law cases to stay on the record and continue to represent their clients for further stages, long past the time when the client has paid -- or has the ability to pay -- the lawyers's fees. Ms. Shore noted that she had recently seen a case where a lawyer had to stay on the record for an additional two months and perform all the work to be done during that time. While she did not say so specifically one must concede that it is unlikely that the lawyer in that case will ever see payment for all that work.

Lawyers often have to deal with the conflicting demands on them as professionals on the one hand with being business people on the other. This problem often takes quite literal form as the caselaw in assessment cases (where the quantum of a lawyer's bill is examined) and professional liability cases are often in direct conflict. One assessment case may say that in Situation X a lawyer can't collect for making a judgment call to proceed with Action Y because it wasn't part of the retainer agreement and the client can't be forced to pay for something that the lawyer independently thought was in the client's best interests. However, a solicitor's negligence case may have a holding that in a same or similar Situation X the lawyer was obliged to perform Action Y because it was necessary for the client and that the duties incumbent upon a professional transcend the usual "no pay no work" underpinning of a normal commercial service transaction. These dilemmas are usually resolved by lawyers' governing bodies, insurers, courts and assessment officers in favour of the client. (The myth that judges and lawyers protect other lawyers is just that: a myth. It is rather closer to the truth to say what one lawyer attending the session said: that the lawyers are seen as a source of fiscal indemnification for the mistakes of others. The reader will thus start to get some small idea of why law is listed as a "disabling profession" in the book of that name and why they suffer higher burnout, suicide and alcoholism rates than the general population; having to square a circle under great stress and externally imposed demands will do that.)

It is a given that the court processes are becoming unaffordable and that access to justice is a vital and indispensable necessity for a civilized and complex society. I do have profound concerns, though, about a system which responds to problems created jointly by its own structural flaws, governmental under-budgeting, conflicting demands, increasing complexity and sophistication and information-intensiveness, and, most of all, hugely increased public demand by simply demanding that lawyers work for free. Nobody is demanding that the judges work for free, or the court clerks, or the expert witnesses, or the doctors, psychologists or counsellors, or court reporters or process servers ... of all the people being paid to be in a court only the lawyers can be and are arbitrarily deemed to be available without charge.

The problems of the court system are very large and demand immediate attention, but telling lawyers and lawyers alone among all the involved professionals that their need to be paid for their time and effort is now an optional extra is a cop-out, and a highly selective and hypocritical one at that.

Quebec's insurers will have to be more specific and do so earlier.

The Quebec Court of Appeal has come down with an interesting decision in Lombard Canada Ltd. v. Ezeflow Inc., (decision in French only).

Ezeflow is a manufacturer of pipes for oil-drilling platforms and Lombard was its general commercial liability insurance provider. Flaws showed up in some installed Ezeflow pipes and that company made a claim on its insurance. Lombard refused on four grounds and later relied on another clause in the insurance agreement. The matter went to trial, Ezeflow won at trial and Lombard took the matter to the Court of Appeal, where the appeal was upheld. However it noted that Lombard could not use an exclusion which was not used as a reason for denial at the outset of the action. As Kelly Harris notes [infra], "Quebec courts do not recognize the doctrine of estoppel [fn1], which prevents new defences from being introduced once a case has begun." Jean-Charles René of Ogilvy, Renault notes,

In Quebec, the courts have refused to apply the doctrine of estoppel, but have recognized a similar concept in civil law, the "fin de non-recevoir" which bars an insurer from adding to its reasons for denial of coverage on the basis that it is deemed to have waived the right to do so. According to the case law, such a waiver does not need to have been expressly stated in writing, but may be tacit, provided it is unequivocal, i.e., there is no doubt as to the insurer's intention to waive a clause in the policy. Some writers have observed that it is harder to prove a "fin de non-recevoir" than to prove estoppel because the civil law concept requires proof that, by its representations, the insurer indicated its intention to modify its rights.

Ezeflow has now ended the insurers' practice of reserving a right to bring up any clause later on; they must now commit at the outset of the action. M. René:

[I]nsureds would be well advised to require their insurer to state its position precisely as soon as it is apprised of a situation that could trigger a claim, thereby forcing the insurer, so to speak, "to make its bed and lie in it".

Footnotes:

fn1 - Quebec is the only province which does not use a "common law" system (like that of England or America) for the resolution of non-criminal disputes; it uses a "civil law" system more akin to European models.]

Further Reading

The entry above is only a cursory examination of the case. I strongly recommend that any interested reader read these articles:

“Quebec Court Of Appeal Weighs In On Scope Of Coverage Under Cgl Policy For Costs Of Removing Insured’s Defective Products”. Nicholl Paskell-Mede, Lawyers.

“Quebec Court of Appeal Warns Insurers To Specify All the Reasons for Denial of Coverage.”
Jean-Charles René, Ogilvie Renault.

“Court tells insurers to lie in the bed they made.” Kelly Harris, Canadian Lawyer Magazine, February, 2009. [Note: Canadian Lawyer uses an unusual digital version of its magazine. You will have to go to the link and then flip the pages as if you were reading the magazine in its treeware format.]

An update on two previous posts

On February 5, 2009 I did a post on parental alienation. Since then the judge who has written a book on the subject, Harvey P. Brownstone, has done an op-ed piece in the Globe and Mail on this topic.

On March 31 I did a post on some hysterical American prosecutorial reactions to "sexting". Noted criminal defence attorney Eddie Greenspan has since written a piece on the issue.

Missing Child: The suspect looks like this

"The composite drawing of a female suspect, said to be 19 to 25 years old, about 5 foot 1 and some 125 pounds, that was released last night is based on a description provided by an "independent witness," police said this morning."

(Toronto Star)

Victoria "Tori" Stafford is 8 years old and resides in Woodstock. Victoria attended school at Oliver Stephen's Public School in Woodstock, and left school when dismissed at 3:25 PM. Victoria had invited two friends to her house to watch a movie after school, and she was seen leaving the school. A video tape shows Victoria walking northbound on Fyfe Street in Woodstock with a white female. The time on the videotape is 3:32 PM. The female is wearing a white, waist length winter coat and may be carrying a black bag. The video shows Victoria and the female cross the street and continue walking east at the intersection of Walter Street.

Victoria was wearing black and white running shoes, black leotards, a black velvet pleated skirt, an army green coloured "Hanna Montana" T-shirt that had pink stitching with a hood, a black "Hanna Montana" winter coat with a hood trimmed with white fur, a black head hand, and butterfly earings. She was carrying a purple coloured "Bratz" bag.

OPP Website on the Victoria "Tori" Stafford disappearance.

If you have any information, please call the OPP at 1-877-9FIND ME (1-877-934-6363) Toll Free in Canada or email them at Tips or at opp.isb.resolve@ontario.ca, or call (705) 330-4144 for local or outside of Canada.

Missing Child: Victoria Stafford

Drug Decriminalization Policy Forum - Follow-up

On March 14, 2009 I provided details to the Cato Institute's policy forum on Portugal's experience with drug decriminalization. The policy forum is now complete and the video can be found here.

You can download a podcast (in mp3 format) of the event here.