As lawyers, we are advocates, advisors, and sometimes, the bearer of uncomfortable news - especially when ethics come into question. One of the more challenging aspects of being an advocate is engaging in candid ethical discussions that can make or break a case and, sometimes, a career. Judges talk to each other about us: they talk about our skills as advocates and, more importantly, they talk about our trustworthiness. These conversations and our reputations are not things any of us should take lightly. We need not only to educate ourselves on the ethical issues we may face, but also on how to hold conversations with our clients about ethical issues.


Upon being called to the bar, we are mostly left to ourselves with respect to the identification and resolution of various ethical dilemmas that will arise in our daily professional lives. It can be difficult to flag a potential ethical issue, let alone to know what to do once it has been identified.


In this series, we will review various ethical issues faced by lawyers and the best ways to address those issues with clients with input from some of the best lawyers involved with The Advocates’ Society. Specifically, we will provide guidance on what to do if: (i) you’ve determined you do not have the requisite skill set necessary to continue with a file; (ii) you suspect your client may not have capacity to instruct counsel; (iii) there has been a breach of confidentiality (accidentally or otherwise); or (iv) you are proceeding against self-represented parties or lawyers who have been suspended. In this issue, we will address how to head off potential ethical quandaries in the gathering of evidence in family law cases.


First, we need to understand the source of our ethical responsibilities. When we were called to the bar we all swore an oath. We promised to conduct all cases faithfully and to the best of our abilities, to faithfully serve and diligently represent the best interests of our clients, to conduct ourselves honestly and with integrity and civility, to not pervert the law to favour or prejudice anyone, and last, but certainly not least, to strictly observe and uphold the ethical standards that govern our profession.


Here in Ontario, the Rules of Professional Conduct lay out the ethical standards relating to the practice of law. Rule 2.1-1 states that “a lawyer has a duty to carry on the practice of law and discharge all responsibilities to clients, tribunals, the public, and other members of the public honourably and with integrity.” Rule 3.1-2 additionally provides that “a lawyer shall perform any legal services undertaken on a client’s behalf to the standard of a competent lawyer.” The commentary on Rule 3.1-2 directs that competence is founded upon both ethical and legal principles.


One of the most difficult conversations we regularly face as family law lawyers is having discussions with clients about ethical evidentiary issues, including electronic privacy, especially in cases where the other party is self-represented and does not understand the various evidentiary rules. Courts have found that individuals have a reasonable expectation of privacy regarding their personal electronic devices. In highly charged family law cases, counsel must advise their clients about what evidence is fair game and what’s off limits, in cases where a client has access to their partner’s device and knows or can guess the password. Attempting to put such evidence before the court because the client demands it runs the dual risk that not only will the evidence not be admitted but that you have seriously harmed your reputation with the court by complying with the client’s demands in the face of what you know should, and should not, be properly put before the court.


As trusted counsel, the onus is on us to educate and guide our clients through the evidence gathering steps, and to impress upon them the importance of the source of the evidence. When clients provide us with documents, it’s important to make diligent inquiries about how they came into possession of the documents, and segregate any records that may have been obtained improperly. When we approach ethical issues from a trusted advisor perspective, instead of merely a service perspective where the customer is king, the inherent tension lessens and allows us to deepen the client relationship.

 

 - Jennifer M. Bolduc

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It has long been observed that Ontario’s Occupier’s Liability Act carried an inherent prejudice against occupiers in that there were no notice requirements for injuries arising from a slip and fall, thereby often preventing a thorough investigation into the circumstances surrounding the slip and fall. However, the Occupiers Liability Act was recently amended to add a section requiring a 60 day notice requirement for injuries arising from the presence of snow or ice. The notice must provide the date, time, and location of the occurrence, as follows: 

 

Notice period – injury from snow, ice

 

6.1(1)  No action shall be brought for the recovery of damages for personal injury caused by snow or ice against a person or persons listed in subsection (2) unless, within 60 days after the occurrence of the injury, written notice of the claim, including the date, time and location of the occurrence, has been personally served on or sent by registered mail to at least one person listed in subsection (2).

 

It is further stipulated under subsection (2) that the notice must be personally served on the occupier or an independent contractor employed by the occupier to remove snow or ice on the premises during the relevant period in which the injury occurred. 

 

Practically speaking, permitting a 60 day period to provide notice might not be overly helpful to the occupier because conditions will likely have changed in the intervening time.  However, the new notice requirements are much preferable to the situation that existed prior to the amendments.

 

For example, prior to the amendments, a claimant could wait two years to provide the occupier with notice of the injury.  At that point, any surveillance footage would likely be deleted, witness recollection would be compromised, and relevant maintenance records may have been deleted.  With the new notice requirement, at a minimum, there would be preserved records, and the maintenance personnel would have reasonably fresh recollections.  Depending on the location, there might even be contemporaneous surveillance footage that could still be accessed.  The prospects for a  more thorough investigation are obvious.

 

However, despite the new notice requirement, the amendment carves out the following exception:

           

Exception

 

6.1(6) Failure to give notice in accordance with subsection (1) or insufficiency of the notice is not a bar to the action if a judge finds that there is reasonable excuse for the want or the insufficiency of the notice and that the defendant is not prejudiced in its defence.

 

As such, if a judge finds that there is a “reasonable excuse” for the lack of notice and that the defendant is not prejudiced in its defence, then the 60 day notice requirement can effectively be waived. 

 

While there is no reported case law to date interpreting notice under section 6 of the Occupiers Liability Act, the newly added section is very similar to the notice requirements that already exist under section 44(10) the Municipal Act, 2001, which stipulates that no action shall be commenced against a Municipality unless notice is provided to the Municipality within 10 days of the occurrence.  Similarly, there is an exception in the event that a “reasonable excuse” can be provided for the lack of notice. 

 

It is therefore likely that courts will look to caselaw interpreting section 44(10) of the Municipal Act, 2001, for guidance when interpreting these new sections of the Occupier’s Liability Act.  Particularly, with respect to whether there was a “reasonable excuse,” the test will likely be whether in all the circumstances of the case, it was reasonable for the plaintiff to not give notice until she did.  Relevant factors will likely include the following:

 

  • The seriousness of the injury;

  • Whether surgery was required;

  • The duration of stay in the hospital;

  • The nature and amount of medications the person was taking;  and

  • The subsequent therapy required and the impact it had on the person’s career and mental health.

 

With respect to prejudice, the onus will likely be on the plaintiff to establish the occupier was not prejudiced in its defence.  The absence of prejudice can be established by demonstrating there are other sources of information such as:

 

  • The occupier having taken steps to investigate the incident despite the absence of notice;

  • Timely photographs of the scene;

  • Known witnesses; and

  • Available inspection and maintenance documentation.

 

Again, it is likely that the Courts will adopt these factors in interpreting the notice requirements under section 6 of the Occupiers Liability Act, as the underlying principles are effectively identical.

 

Should you wish to discuss how the Courts may interpret the new provisions going forward or discuss strategies in defending such claims, feel free to contact Giffen’s insurance defence team:

 

            Stephen Brogden – stb@giffenlawyers.com

            Nolan Downer – nrd@giffenlawyers.com

 

Best regards,

 

 

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