Toronto Estate Lawyer : Hull & Hull Law Firm : Trust Mediation and Succession Planning : Serving Ontario, Ottawa, Mississauga, Hamilton

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My last blog this week examines the application of our favourite Rule 57.07 - Liability of Solicitor for Costs - in the context of affidavits.  We (and our clients) have all suffered through The Angry Affidavit.  In Manitoba, which has comparable legislative provisions authorizing and governing cost awards, drafting such an affidavit can be expensive for the drafting lawyer.   

In Eblie v. Yankowski, [2007] M.J. No. 145, the court awarded costs against the solicitor personally where an affidavit contained irrelevant, scandalous, vexatious and frivolous.  It was not enough to simply type what the client wanted to say.  The solicitor was responsible for drafting and presenting the affidavit material, and had caused costs to be incurred without reasonable cause.  In this case, the costs incurred included a motion to expunge the impugned material. 

Further, the court made the interesting comment: "It is difficult to accept that these materials were not prepared and filed for an improper purpose, namely to prejudice the mind of the court against the opposite party. If their inclusion in the affidavit filed by the Petitioner was intended to gain undue advantage and to defeat the course of justice costs against counsel personally are clearly warranted."  

For those interested, section 96 of Manitoba's Court of Queen's Bench Act is nearly identical to section 131 of Ontario's Courts of Justice Act in creating jurisdiction to make discretionary cost awards.   Manitoba's Rule 57.01(1) is similar in all relevant ways to Ontario's Rule 57.01(1), and Manitoba's Rule 57.07 similarly imposes potential personal liabilty on solicitors.

Enjoy your weekend,

Chris Graham

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When an irresistable force meets an immovable object, we appeal to the Supreme Court of Canada. 

In Canada (Privacy Commissioner) v. Blood Tribe Department of Health, 2008 SCC 44, the force is the Personal Information Protection of Electronic Documents Act ("PIPEDA") and the object is solicitor-client privilege.  Section 12 of PIPEDA grants the Privacy Commissioner express statutory power to compel a person to produce any records that the Privacy Commissioner considers necessary to investigate a complaint “in the same manner and to the same extent as a superior court of record”.  The issue in Blood Tribe was whether this conferred a right of access to documents protected by solicitor-client privilege.  The Court held unanimously that the broad grant did not contain the requisite specific express authority to override privilege.

The Court stated the rule that "general words of a statutory grant of authority to an office holder such as an ombudsperson or a regulator do not confer a right to access solicitor-client documents, even for the limited purpose of determining whether the privilege is properly claimed.  That role is reserved to the courts.  Express words are necessary to permit a regulator or other statutory official to “pierce” the privilege." 

The Court also noted that "while the solicitor-client privilege may have started life as a rule of evidence, it is now unquestionably a rule of substance applicable to all interactions between a client and his or her lawyer when the lawyer is engaged in providing legal advice or otherwise acting as a lawyer rather than as a business counsellor or in some other non-legal capacity."

Speaking of the Supreme Court of Canada, the law you're looking for just might be in the "unreported judgments" section of the Supreme Court's user-friendly website.  How does a Supreme Court decision go unreported?

Have a great day,

Chris Graham

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In  Managing the Grey Podcast - Building Your Brand C.C. Chapman republished his recent speech which he had given with Mitch Joel to a group of podcasters at PodCamp Boston. The two speak about the process of creating your own brand.

What struck us, almost profoundly, at the outset of this podcast, was Chapman's commentary on the power of the personal branding that Starbucks has achieved. This power lies in our willingness to spend $6.00 on a cup of Starbucks coffee in an effort to be associated with the brand. C.C. Chapman went on to tell us about some of the techniques that we should consider employing to achieve Starbucks-like success.

A personal brand is all about creating a buzz, that is essentially fed by the fact that someone else wants to experience your particular brand. You need to develop an interaction between the listeners and yourself to personalize your point. To elaborate, it was noted that it is not at all important as to whether or not your listener is particularly interested in say, your podcast that day; rather if he trusts your brand, then he trusts your enthusiasm for the topic and is engaged. You are creating personal attachment to your brand as opposed to simply interest in your content. This is not to dismiss the importance of content; rather, the "hook" is the personal brand and not the day-to-day content.

More commentary about this informative podcast in tomorrow's blog.

All the best,

Suzana and Ian.