The UK’s Legal Ombudsman

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I practise civil litigation in Ontario, but a little while ago I had the opportunity to be involved in a dispute resolution process in another jurisdiction, which was an enriching learning experience.  While I deal with Ontario’s processes and procedures every single day, it was great to get some exposure to how things are done elsewhere.

Background

The situation involved a relative of mine who lives in the United Kingdom and was looking to purchase a flat.  He found a flat for sale and entered into negotiations with the owner.  The negotiations were so advanced that both parties retained solicitors in anticipation of the sale.  However, after the solicitors took over the negotiations the seller decided not to sell after all and walked away from the deal.

What made this bad situation worse was the fact that my relative’s solicitor did not tell him that the seller had walked away.  Even though he knew that the deal was off, he acted for weeks as though the deal was still going to go through: he even asked my relative to forward the purchase funds.  When the closing date came, he reported that the deal had not gone through and returned the purchase funds to my relative, less the amount of his fee. 

To be scrupulously fair to the solicitor, the retainer agreement my relative signed with the solicitor stated that he would be entitled to a fee for his work even if the deal did not go through.  But what the agreement stipulated was that, in the case of an aborted transaction, he would get a lesser fee for his preparatory work, not the full fee for the transaction (which would have been a percentage of the purchase price).  This solicitor retained the full fee, which was a few thousand pounds more than the lesser fee the agreement stipulated. 

I assisted my relative to bring a complaint against this solicitor to the Legal Ombudsman, which was a new experience for me, because we do not have anything like the Legal Ombudsman in Ontario. 

Comparisons with Ontario Procedure

In Ontario, if you have a problem with your lawyer, you can report them to the Law Society.  But the Law Society can only discipline the lawyer: they cannot order the lawyer to repay any disputed fees or pay any monetary damages.  In Ontario, any dispute about a lawyer’s fees has to be lodged with the court.  The Legal Ombudsman differs from what we are used to here in Ontario in that the Legal Ombudsman, which is not an office or a branch of the court, can nevertheless order a solicitor to repay fees to a client or even order a solicitor to pay compensation to a client. 

Also noteworthy is the fact that the process with the Legal Ombudsman is based entirely on written submissions.  In a dispute about fees heard in Ontario there will virtually always be an opportunity for both sides to appear before a decision-maker to state their case.  By contrast, the Legal Ombudsman makes a decision on the basis of written submissions only, without ever hearing from the disputants in person.

In our case we were satisfied with the result, since the Legal Ombudsman ruled strongly in our favour.  The solicitor was ordered to repay the difference between the lesser fee and the full fee, and was also ordered to pay some modest compensation on account of some unnecessary expenses my relative had incurred when the deal did not go through.

Another interesting contrast from Ontario procedures is that in cases where the Legal Ombudsman has ruled in favour of the client, the Ombudsman will also take enforcement steps.  The Ombudsman will demand payment from the solicitor and even register their decision as a Judgment at the court (which the Legal Services Act permits them to do) if necessary.  Our case did not get to court, as the solicitor did pay the amount ordered after receiving demand from the Ombudsman.  But this is a totally different paradigm from what we have in Ontario: while we do have specialised decision-making bodies whose decisions can be registered with the court and incorporated into a judgment, the decision-making body itself will never take that step.  For example, an order of the Landlord and Tenant Board (“LTB”) can be registered at court, but that has to be done by the landlord or tenant themself, and at their own expense: that is not a step which the LTB will take on its own. 

Another major difference is that that the service the Legal Ombudsman provides is free.  Its office is funded by levies from the legal practitioners.  Again, this is different from Ontario, where every adjudicative body—be it the Small Claims Court, the Superior Court, or an administrative tribunal—charges fees.

Taking a case through the process with the Legal Ombudsman was a unique learning experience.  Because it was a forum with so many differences from what I am used to in Ontario, it left me with a lot of food for thought.  Just because things are done differently in another country does not automatically mean that we should change the way we do things here, but the UK’s Legal Ombudsman can provide a useful example if we do consider any changes in the future.

Publicity Placing Person in False Light

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To successfully sue someone, you need to have a legally-recognised basis for suing them.  These legally-recognised bases for suing someone are called “causes of action”.  Many of them are obvious and well known: where the evidence justifies it, you can sue someone for breach of contract, wrongful dismissal, or defamation.  Other causes of action are less well known, but nevertheless well-established, such as certiorari or mandamus.

Notably, the list of legally-recognised causes of action is not a closed list.  Where the right conditions are met, new causes of action can be “discovered” by the courts. 

False Light

Late last year, the Ontario Superior Court of Justice “discovered” another new cause of action in the family law case of Yenovkian v Gulian. 

There was a trial to determine the issues of custody, access, and spousal support.  At the trial, the wife put forward evidence of websites written and published by the husband which alleged that the wife and her parents were involved in kidnapping, child abuse, assault, and making death threats (among other things). 

The husband’s websites (which are still up, in violation of court orders to take them down) are written by someone who is clearly unhinged, and the allegations they contains against his ex-wife are outrageous.  The judge decided to give Ms. Gulian a remedy for the injury she suffered in having these things written about her on the Internet. 

Rather than give the wife a judgment which was based on an already-recognised cause of action, the judge decided to base the ruling on a cause of action which had never previously been recognised in Ontario law.  The Judge held that the cause of action by which Ms. Gulian was entitled to a remedy was “publicity placing a person in a false light”, and she awarded Ms. Gulian $100,000.00.

This ruling creates a situation of significant uncertainty in Ontario law.  First, it is not at all clear from this ruling how “publicity placing a person in a false light” is different from good old-fashioned defamation.  I don’t see how accusing your ex-wife of kidnapping and child abuse could possibly be anything other than defamatory so, in my personal view, the judge did not need to recognise a new cause of action in order to give Ms. Gulian a remedy: she could have simply awarded Ms. Gulian damages based on defamation. 

Second, because this case was decided by the Superior Court and not by the Court of Appeal, it is not binding on other courts in Ontario.  My own suggestion would be that the job of introducing new causes of action into Ontario law should be left to the Court of Appeal, whose decisions are binding on all the courts in the province.  The last time a new cause of action was discovered in Ontario (“intrusion upon seclusion”), it was done by the Court of Appeal.  The last time the Superior Court attempted to discover a new cause of action (the “tort of harassment”), the ruling was overturned by the Court of Appeal.

The Court of Appeal did not have the opportunity, in this case, to weigh in on the “false light” cause of action because the husband did not appeal.  One judge of the Superior Court was convinced that the cause of action of “publicity placing a person in a false light” exists in Ontario; another judge hearing a similar case may not be similarly convinced.  This creates the possibility of inconsistent legal rulings in the Ontario courts, which in turn could potentially erode public confidence in the justice system. Until the Court of Appeal rules on the “false light” cause of action, it will remain a big question mark in Ontario law. 

When will we next see a new cause of action recognised in Ontario?  I suspect it will not be for some time.  A new cause of action is supposed to fill a gap in the existing law, and where it is not immediately obvious that there is a gap in the law which needs to be filled, it will be less likely that any potential new cause of action will be recognised. 

Quick, Good, Cheap – Pick Two

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Her Honour Madam Rosalie Abella, a Justice of the Supreme Court of Canada, recently penned an opinion column in The Globe and Mail titled, “Our Civil Justice System needs to be Brought into the 21st Century” (subscription required). 

While I came to agree with Justice Abella’s conclusion, she actually made two arguments in order to get there.  And while I agree with her second argument, I cannot bring myself to agree with her first.

Her first argument is basically just “Change for change’s sake.”  She notes that the adversarial system of civil litigation we use today is pretty similar to the one used at the turn of the (last) century.  She then goes on to argue that, since the airplane and the Internet have been invented in that time, we should similarly change the way we resolve civil disputes. 

The flip side to the sentiment that “we should change with the times” is “if it ain’t broke, don’t fix it.”  And of course, our adversarial system of civil litigation has a lot of things to commend it.  It is a system which has been honed and refined over centuries and it does a fairly good job of serving its objectives.  While other systems of dispute resolution have been conceived and tried our adversarial system remains, to paraphrase Churchill, the worst system except for all the others which have been tried from time to time.  So I would disagree with the suggestion that we ought to make any substantial changes to our civil litigation system solely on the basis that it is an old system.  We should not tear down a fence unless we know why it was put up in the first place. 

That being said, Justice Abella’s second argument really lays bare the biggest shortcoming of our “least bad” system.  She persuasively argues that the system is just too inaccessible for regular people, for the dual reasons that (i) it is too expensive and (ii) it takes too long.  One cannot really disagree with her assertion that it should not take litigants “forever and thousands of dollars to decide where their children live, whether their employer should have fired them, or whether their accident was compensable.” 

The gap between reality and expectation for participants in the civil litigation system can be profound.  I blogged last week about an employment case in Ontario which took eleven (11) years to go from start to completion at the Court of Appeal.  By comparison, a few years ago I represented an employee in an employment case that was decided by the Court of Appeal eleven months after the employee was fired.  And do you know what they told me after it was over?  They said, “If I knew it would have taken this long, I never would have done it.”  And that was in a case which, by the usual standards, was resolved quickly.

In my own practice, I have seen a fair number of clients walk away from good, promising cases—cases worth tens or even hundreds of thousands of dollars—because they are not willing to wait 1, 2, or 3 years before seeing the inside of a courtroom, or because they are no longer willing to continue funding litigation which will go on for another 1, 2, or 3 years. 

The people who are most likely to be caught on the outside are those who can’t or won’t sink thousands of dollars, and years of their lives, into fighting a legal dispute – even though their case may be just.  Justice Abella perspicaciously identifies this problem when she says, “They want their day in court, not their years.”

Normally, this is where I would criticize the author for identifying the problem but not identifying any solutions.  But I can’t criticize Justice Abella here, because I don’t have any answers at the moment either.  The civil justice system serves multiple goals, among them efficiency, truth-seeking, and justice.  Major reforms to improve the outcomes in one area are almost certain to be at the expense of the other goals of the justice system.  The legal system finds itself stuck in the classic consumer quandary of “Quick, cheap, good – pick two”. 

What should we do?  Eliminate or severely curtail pre-trial discovery?  That would certainly get us to trial more efficiently.  It would also bring back the old days of “trial by ambush”, which the profession definitely wants to avoid.  Getting rid of “trial by ambush” was a major reason for the significant expansion of pre-trial discovery in the first place.  We can make our civil litigation system quicker and cheaper, but it won’t be as good.

While I can’t say what we should do, I can make a suggestion about what we should not do.  We should not do mandatory mediation.

In my opinion, the experiment of mandatory mediation is a failure and should be abandoned.  For a number of years now, any civil lawsuit in Ottawa, Toronto, or Windsor has been required to go to mandatory mediation as a necessary pre-condition to going to trial.  And why is this such a bad a idea?  Simply put, if you want to make the process of a lawsuit quicker and cheaper, you should not add additional procedural hurdles to the lawsuit.  Mandatory mediation adds both time and expense and makes the overall lawsuit take even longer.  I cannot understand why anyone thought that the system would be made more efficient by adding an extra step to civil lawsuits: it is impossible to make a journey quicker by adding pit stops.  If we want to make the process of civil lawsuit a little bit quicker and a little bit less expensive without sacrificing quality, we can start by eliminating the costly and time-consuming step of mandatory mediation.

An 11-Year Long Employment Case

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Civil litigation clients often ask, “How long will this case take?” People who have never been involved in a civil court proceeding may be surprised to learn that civil matters are usually measured in years, not weeks. But how long can a lawsuit go on for? An employment law case released by the Ontario Court of Appeal this past year shows just how long a lawsuit in Ontario could take.

On January 31st, 2019, the Court of Appeal heard an appeal of a case which had been argued in 2016 and decided in 2017. The Court of Appeal was remarkably efficient, releasing its decision just six (6) weeks after the appeal was argued.

The interesting date in this case, however, is not the date on which the judgment at first instance was handed down, or the date on which the case was argued, but the date on which the case was commenced – 2008.

Most people understand that even after you go to court there is a right of appeal, and they understand that an appeal will add some time to the length of your legal matter. In this case, the time between judgment and appeal (less than two (2) years) was a drop in the bucket compared to the time between the commencement of the lawsuit and the argument at first instance, which took a staggering eight (8) years.

What we do not learn from the reported decision is whether or not there were valid reasons for the eight (8) years which transpired between the employment law case being commenced and it being argued at court. Extraordinary delays sometimes happen in civil litigation, but there are usually extraordinary events behind those delays, such as one of the lawyers being removed from the case due to illness, retirement, or death, for example.

A new rule came into effect in Ontario in 2012 with the goal of trying to prevent these sorts of extraordinary delays. Rule 48.14 of the Rules of Civil Procedure now requires the Registrar of the court to automatically dismiss every lawsuit which has not been set down for trial after the five-year anniversary of it having been commenced. This rule does not mean that a lawsuit has to go to trial within five (5) years, only that it has to be ready to go to trial within five (5) years. It seeks to strike a balance between giving parties and their lawyers enough time to prepare their lawsuit, while at the same time eliminating totally unreasonable delays.

And of course, this particular case is an outlier. Rarely will a relatively uncomplicated employment law case drag on for years, let alone eleven (11) years. But this case nevertheless stands as a marker of just how long, in some circumstances, a civil lawsuit can actually take.

Litigation Lessons from the Tiger King

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The “Tiger King” documentary is one of the most outrageous things ever produced for television and it has served up no shortage of talking points.  Buried under the many, many, many layers of intrigue are a couple of interesting observations for the world of civil litigation. 

A civil lawsuit can be a long, expensive, and laborious process, and the courts have taken steps to expedite the process of civil litigation where possible.  In particular, they have encouraged a much greater use of the mechanism of summary judgment.  In summary judgment, a case will come before the Court on a motion, rather than on a full trial, and the judge will make a ruling based on the materials before the Court, which will usually consist of predominantly or solely written materials.  On summary judgment witnesses are usually not called to testify in court, having previously given their testimony in the form of a written affidavit.  Not having live witness testimony greatly reduces the amount of time spent in court and can significantly streamline the process. 

We tend to think that this is a good thing and, overwhelmingly, it is.  There is an old saying in law that “justice delayed is justice denied”, and summary judgment is a powerful tool for fighting the delay that the court system seems to be so well known for.  Summary judgment is popular because it allows a litigant to go to court and obtain a judgment sooner than they otherwise would have. 

The lesson from Tiger King is that summary judgment streamlines the process for both the winner and for the loser.

The documentary tells the story of Carole Baskin’s civil lawsuit against Joe Exotic for copyright infringement.  Carole won the lawsuit on summary judgment.  She never had to go to trial: she got the Judge to rule in her favour before a trial.  As the loser in the lawsuit, Joe Exotic’s comments are notable.  He is filmed at the time saying, “You know the saying that you get your day in court?  Well I don’t feel like we got our day in court.”

“Justice delayed is justice denied”, but another old saying in the legal profession is, “Justice must not only be done, it must also be seen to be done.”  Summary judgment is a powerful procedural mechanism for shortening the length of civil disputes, but one must always be mindful of the countervailing concern, which is that a quicker process could be seen as being less thorough and/or less rigorous, which in turn could lead to the perception that the process is less fair because shortcuts are being taken on the journey to justice. 

If it means that a lawsuit which would otherwise take years ends up taking months, with largely the same result, then obviously this trade-off is worth it.  But it is useful for those of us who participate in the civil litigation system to remember that the efficiencies achieved by summary judgment do not come without risks.  In this case, the risk being that the party who loses on summary judgment might be less likely to accept the result as legitimate. 

The other observation to take from Tiger King should be warning to all lawyers who, in this age of social distancing, are looking to set up mediations by remote means.  If you have seen the documentary, you cannot forget this scene:

After having lost the lawsuit on summary judgment, Joe Exotic entered into mediation with Carole Baskin, with a view to coming to an agreement about how to pay the judgment.  They hired a mediator and, since Joe lives in Oklahoma and Carole lives in Florida, they conducted their mediation on a conference call. 

There are a few basic rules about a mediation, one of the most important of which is that a mediation is confidential.  Unbeknownst to either Carole or the mediator, Joe allowed a business associate of his to sit in on the conference call.  As the mediation progressed, this business associate, who had up to that point kept silent, suddenly exploded in a fit of rage, levelling a barrage of disgusting and vile epithets at Carole: the sort of sickening profanities which would make even the most shameless blush.  Needless to say, the mediation was not a success.

It is a real-life example of why a mediation held remotely is not a good idea: for the simple reason that the mediator cannot control the room.  They have no way of knowing whether or not unauthorised individuals are being made privy to the discussions and they cannot guarantee the confidentiality of the mediation.  The lesson from Tiger King being that when you are dealing with a character as volatile and off-the-wall as Joe Exotic, you should insist on holding your mediations in-person, so you can exert at least some measure of control over the process of the mediation.

In this case, the Plumage DOES Enter into it

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Mr. Davy purchased a parrot from Mr. Kidwai.  It was not a Norwegian Blue; it was an Eclectus.  Named Tiberius.  And he wasn’t pining for the fjords, but he was residing on the equally picturesque Salt Spring Island.

And in this case, the plumage DOES enter into it.

You see, this parrot started losing its feathers. Worried about its thinning plumage, Mr. Davy took it to a vet who informed him that the parrot had PBFD—Psittacine Beak and Feature Disease—and as a result now has a vastly reduced lifespan.  Tiberius is not yet an ex-parrot, but because of his PBFD he will run down the curtain and join the choir invisible much sooner than he otherwise would have. 

So Mr. Davy took Mr. Kidwai to the British Columbia Civil Resolutions Tribunal for having sold him a defective parrot.  Once we get past the irresistible similarities with the Monty Python sketch, the ruling in favour of Mr. Davy is quite interesting, and quite concerning for anyone who sells animals in Canada.

It is interesting, because the Member who decided the case found that Mr. Kidwai did not know, when he sold the parrot to Mr. Davy, that the parrot was sick.  So Mr. Davy’s action for fraudulent misrepresentation was dismissed. 

However, the Member went on to rule that BC’s Sale of Goods Act applied to the sale of this parrot.  The BC Sale of Goods Act specifies that goods sold in British Columbia must “be durable for a reasonable period of time having regard to the use to which they would normally be put and to all the surrounding circumstances of the sale”.  Relying on a previous case from the Civil Resolutions Tribunal which involved a puppy that developed seizures, the Member held that for the parrot to be “durable” within the meaning of the Act meant that the parrot had to remain healthy for six months after the sale. 

Because the parrot got sick less than six months after he was sold to Mr. Davy, the implied warranty of durability prescribed by the Sale of Goods Act had been breached and Mr. Kidwai had to repay 75% of the purchase price (only 75%, because Mr. Davy apparently got some value from having Tiberius as a pet) and also had to reimburse Mr. Davy for the veterinary fees he incurred. 

This case is not binding on other courts in Canada, but it nevertheless sets a very worrying precedent for anyone involved in breeding or animal husbandry.  I think very many kennel owners or breeders of domestic pets would be surprised to learn that when they sell an animal they are guaranteeing the animal’s health for six months after it leaves their premises.  Especially because most, if not all, of the factors which affect the animal’s health are out of the control of the breeder at that point. Equally concerning is the potential liability: not just for the price of the animal, but also for the cost of the owner’s veterinary bills, which the seller has no input on or control over.  This quirky case stands as a warning of the potential downside risk when selling pets.

Two Inconsistent Hockey Cases from Ontario

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Does it help to have the right lawyer argue your case in court? We would like to think that it doesn’t matter: that the justice of the case will prevail, regardless of how persuasive your lawyer is.

Well, try telling that to Robbie Levita. He lost his personal injury lawsuit in 2015 in which he sued the guy who hit him from behind during the dying minutes of a rec-league hockey game. He has to be scratching his head at the more recently-released case of Casterton v MacIsaac, where Drew Casterton sued the guy who hit him during the dying the minutes of a rec-league hockey game and won a judgment for more than $700,000.00.

To find any substantial difference between Mr. Levita’s case and Mr. Casterton’s case is an exercise in splitting hairs very, very finely. Any difference between the cases is minor, while the similarities are striking:

LevitaCasterton
Playing in a “non-contact” recreational hockey league in OntarioPlaying in a “non-contact” recreational hockey league in Ontario
Signed a liability waiver in favour of the leagueSigned a liability waiver in favour of the league
Incident happened in the last minute of play, with his team trailingIncident happened in the last minute of play, with his team trailing
Hit by an opposing player while not in possession of the puckHit by an opposing player while not in possession of the puck
Suffered serious injuries, including a broken tibia and fibulaSuffered serious injuries, including long-term brain damage

To find any differences between these two incidents requires a fair degree of creative thinking. What tipped the results in either direction were the factual findings by the respective Judges. Mr. Justice Firestone found that that the guy who hit Mr. Levita did not do so with an intent to injure, while Madam Justice Gomery found that the guy who hit Mr. Casterton deliberately attempted to injure him, or was reckless about the possibility that he would do so. It was on these findings of fact that the respective cases turned.

The Casterton case shows that the Levita case could have easily turned out differently, and vice versa. One has to question how much of a role the advocacy of the respective lawyers played in these cases.

  • Did Mr. Casterton have more effective advocates than Mr. Levita?
  • Or, did the Defendant in the first case have more effective advocates than the Defendant in the second case?
  • Perhaps it was a combination of both?

At the same time, it may have been some other reason or reasons, completely unrelated to the effectiveness of counsel. Perhaps the Defendant in the Levita case came across as sympathetic and remorseful in a way that the Defendant in the Casterton case did not: we can only speculate. All the same, we cannot rule out the strong possibility that the effectiveness of counsel played some role in these two very similar cases ending up with very, very different results.