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Best Practices for Working Successfully with a Lawyer

July 14, 2022 Leslie Smith
working-successfully-with-a-lawyer

Having practiced law in Ontario for 34 years, I have worked with thousands of clients of all stripes and persuasions and from all economic and social strata. Most of my clients have been good to work with. They’ve been reasonable, and co-operative. Only a few have not.

With decades of experience working with clients, I present a few best practices to ensure that you, as a client, have a successful professional relationship with your lawyer.

Firstly, finding a lawyer requires research and hopefully, a personal reference from someone who has worked with that lawyer. You want to find a lawyer who you can trust – one who is an expert in the field of law that concerns you.

It’s important to understand that your legal case is like a team sport. You and your lawyer are on the same team and need to work as well together as any sports team, with your lawyer as head coach. Teams made up of members who argue with each other usually don’t win the game. Team unity (as we see from sports teams) is critical to success.

You are hiring a lawyer who has expertise with your area of concern. If your instinct is to challenge your lawyer on the way he or she is handling your file, you need to find another lawyer you are prepared to listen to. No lawyer can work with a client who will not take direction or advice.

Understand that many factors are at play in every legal situation, regardless of the subject matter. Lawyers must understand the law related to the subject matter, and the procedural rules as well as any legislation that may apply or rules of the Court, if applicable. The law in every area is complex and multi-layered and brings into play a variety of bodies of knowledge. Your lawyer will not describe every little detail with you, but just know that there are details – and lots of them.

If you are a client that needs constant updates, it’s best to set expectations early on as to how often your lawyer will communicate with you. Understand that lawyers with a good reputation for subject matter expertise are very busy and can’t always respond quickly. You can reach out to the lawyer’s assistant or support staff, but it’s best to have a firm understanding of your lawyer’s communication policy before you start working together.

If your matter involves litigation, at some point you may want to consider settlement. Settlement is a process that involves intellectual agility, compromise, and reason. Be reasonable and prepared to compromise if your lawyer recommends it. Being intransigent in your beliefs about your case is never a good idea.

If you disagree with what your lawyer is doing or saying, initiate dialogue to gain understanding of your lawyer’s actions. Rather than accuse your lawyer of not acting in your best interests, ask your lawyer to help you understand his or her theory of the case and the method of resolving it. Through respectful dialogue, you will gain understanding while not detonating or poisoning the relationship with your lawyer. Remember, you and your lawyer are a team, and you want to win or have the best outcome. Work together in unity towards that goal.

I hope these few tips help you have a productive and respectful professional relationship with your lawyer.


Use of International Human Rights Laws in refusing to comply with COVID-19 workplace vaccination policies

May 9, 2022 Leslie Smith
refusing-to-comply

In the fall of 2021, Canadian businesses rolled out their COVID-19 vaccination policies most of which stated that job loss would befall employees who refused to take the C19 jab. In response, many workers served their employers with Notices of Liability prepared by various self-help groups. Usually, the notices referred to the Nuremberg Code which, inter alia, states that in the case of medical experimentation, “voluntary consent of the human subject is absolutely essential.”

It's important to note that a fundamental tenet of Canadian common law and statute law clearly states that duress or coercion, vitiates consent. In other words, where one is coerced into “consenting” (when they are threatened with job-loss), that consent is not free or voluntary. This is the essence of the Nuremberg Code.

It’s important to note however, that the Nuremberg Code itself is merely a guiding principle or statement and effectively, has no legal force or effect anywhere in the world. It is not law.

However, that is not the end of the story.

The principle of informed consent outlined in the Nuremberg Code is reiterated in the United Nations International Covenant on Civil and Political Rights (UNICCPR). This Covenant is a multi-national treaty that commits signatory states including Canada (which signed it on May 19, 1796) to respect the civil and political rights set out in that document. Thus, Canada committed to ensuring that the rights and privileges cited in the Covenant, will be adhered to within Canadian (including provinces and territories) laws. We see these principles enshrined in human rights legislation in Canada.

One such right in the Covenant is cited at Article 7 –

“No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.”

The C19 shots are experimental. That is not in dispute. Health Canada granted the manufacturers, emergency use authorization of the experimental jabs, upon conditions including that the manufacturers had to report on their own studies during the experimental phase (which we are still in).

But – and here is why I like the Covenant – Article 7 is a non-derogable right. Meaning that even in a national emergency like C19, the rights in Article 7 cannot be derogated from or dispensed with (see Article 4 which lists Article 7 as one of several non-derogable rights).

Therefore, any argument that the alleged public emergency in Canada somehow over-rides or trumps the so-called “consent” of workers who took the jab to save their jobs, is a specious argument that has no merit, and offends Articles 4 and 7 of the Covenant.

Make sure to use that argument when you have the chance.


COVID-19 Mandates – Disclosing Personal Health Records to Your Employer

May 2, 2022 Leslie Smith
vaccine

In August 2021, many employers in Ontario, Canada, brought in COVID-19 mandates requiring, inter alia, employees to disclose their vaccination status and/or to take antigen testing and disclose the results. Many employees have asked me whether this was legal.

In Ontario, and in accordance with the Occupational Health & Safety Act, (Ontario) (“OHSA”) employers cannot seek to gain access to their employees’ health records without the employee’s written consent except where the employer obtains an order from a Court or Tribunal or where the employer is compelled by a statute.1

There is no legislation or statute in Ontario compelling employers to require employees to disclose their medical data. Therefore, if you as an Ontario employee do not provide your written consent to disclose your health records, then your employer will have to obtain a Court or Tribunal order. Absent a Court or Tribunal order requiring to you disclose your health data, your employer cannot seek to gain access to your health records.

The OHSA further states that no employer can reprise against you because you seek to uphold your rights in the OHSA (in this case, not to disclose your medical data). Reprising includes disciplining or threatening to dismiss, suspending or threatening to suspend, intimidating, coercing, or imposing any penalty upon a worker.2

If your employer reprises against you because you have not disclosed your medical data, then your employer has breached s.50 of the OHSA and may be subject to a penalty (upon conviction) of a fine up to $1,500,000.3

If your employer has reprised against for you not disclosing your medical data, please call me todiscuss.


1 Occupational Health & Safety Act, RSO 1990, c. O.1, s.63(2).
2 Occupation Health & Safety Act, RSO 1990, c. O.1, s.50(1).
3 Occupation Health & Safety Act, RSO 1990, c. O.1, s.66.


Technology in the Courtroom

April 22, 2022 Leslie Smith
leslie-smith-robes-behind-desk

Since the onset of the pandemic in March 2020, our Courts in Canada have had to reinvent themselves.

Before 2020, most Court cases including bail hearings, were conducted in person. Lawyers and clients were having to drive to Court houses, wait for their turn and then drive back. Of course, there has always been remote hearings for certain matters such as bail hearings and sex-assault hearings. But generally, things were done in person.

Between March and approximately September 2020 in Ontario (and quite possibly elsewhere in Canada), Courts shut down for lack of technological capabilities to deal with cases online. At the time I was sitting as a Small Claims Court judge and there were no hearings until approximately October 2020. This created an enormous backlog that the Courts are still trying to clear off.

Starting in the fall of 2020, Judges and lawyers were feverishly learning how to use ZOOM. Courts were attempting to digitize their processes – a monumental task. They have made great strides, since then.

Now, in 2022, after much adaptation and practice, most hearings are online except hearings that require live testimony. Even then, however, the parties or their lawyers can request remote trials. Procedures that work especially well online are set date hearings, motions, appeals, pre-trial conferences, and case management meetings.

Here are some best practices for a successful remote Court hearing.

  • Think ahead about the documents you will need during your hearing and have a stand copy on your computer ready to email to the Judge hearing your matter. Judges often do not have access to the whole file including the pleadings. Having a stand copy ready, will greatly assist and speed up the hearing.
  • Litigants are expected to display proper decorum and solemnity during a remote hearing as was required during in-person hearings. Ensure that parties are properly dressed and located in a quiet, secure place, sitting quietly, and listening and participating. Walking around your house in your underwear with a coffee spilling out of your cup, is not appropriate decorum for participating in a Court hearing.
  • Check your technical connections and functionality before the hearing starts.
  • Before the hearing, the parties and their lawyers should decide what technology is best suited for any hearings or meetings. It may be that the hearing is better done in person. Or it may be better suited for a remote hearing such as, for example, a matter that involves multiple parties living in various locations in the province.
  • Lawyers and client must use a professional ZOOM background. Save the cat filter for zoom calls with your grandchildren.
  • If a client’s bandwidth is not broad enough and he or she must go to their local Tim Horton’s to participate in a ZOOM hearing for the time-period required, have the client attend his or her lawyer’s office if possible or go to a professional office with adequate bandwidth.

I have participated in several remote hearings both as a Small Claims Court judge and lawyer advocating on behalf of clients. For the most part, I see great benefit in it, especially in terms of access to justice. Please call me if you have any questions – 905-257-7714.


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Core Beliefs

I strive each day to live and work by one principle - treat others as I would want to be treated. In my practice, that translates into 4 key values:

I do what I say I will do and I am honest and transparent at all times with clients, staff, opposing counsel, the court and anyone else. I provide my clients with an honest assessment of their case. If I make a commitment to a client, I keep it. Integrity also means that my clients know before they retain me what my fee structure is. If a client appears unsure of whether or not to retain me or what to do, I tell them to go home and think about it first.

Integrity

Employees having difficulty at the workplace are often in considerable emotional distress when they arrive at my office. Employers can be as well. Employment issues involve human interactions, which necessarily involve emotions that sometimes need healing. I enjoy helping my employee clients think and feel differently about their situations. I also enjoy helping employers understand that their employees need to be treated with respect, dignity, kindness and fairness, no matter what is going on.

Compassion

I have an organized and logical mind that works like a trip hammer, especially in court. I can very quickly sort out the relevant facts and issues in order to resolve my client's cases efficiently. Excellence also means to approach matters with a large measure of practicality, always thinking about what is best for my client and their family and/or business. Finally, excellence also means behaving with civility. I have learned to be hard on the issues and soft on the people - a winning combination.

Excellence

I have also been blessed with discernment and intuition that allows me to often "know" what is really going on with my clients. Equally, my own life journey has led me through difficulties in personal relationships so I understand how upsetting a broken employment relationship is. My own struggles married with discernment and intuition allows me to treat my client holistically, not just legally. This is the thing that sets me apart from most other lawyers, so say my clients.

Wisdom