How Much Does a Professional Conduct Lawyer Cost in Canada? Maybe Nothing. Or Not Much. A Litigator Gives You His Top 5 Tips on Saving Money When You're Facing Legal Challenges Related to Your Work

As profession and workplace upheaval could reach unprecedented levels during the most economically adverse times in living memory, you might resultantly find yourself having to come to grips with legal problems in your chosen vocation. Those problems could take a myriad of civil, administrative, health or disciplinary forms. I know lots of folks - lawyers included - who will try to tough out those problems by themselves, fearing cost or publicity associated with seeking outside help. 

However after 25 years both as a regulated professional (working with governments and private clients) and a professional conduct lawyer helping others with their work-related legal issues, I’ve come to appreciate that a little professional conduct legal help can go a long way. Perhaps a longer way than in most other areas of the law, as work conduct issues usually don’t involve court-based processes with long expensive timelines. But likewise because of their informality these processes can encompass a myriad of unwritten or vague rules that may be hard to pin down unless you’ve been through the same process lots of times before. 

While “procedural fairness” may be the touch phrase everyone’s spouting, there unfortunately can be a lot of disagreement over what does and doesn’t amount to such fairness. Thus I present to you my top five tips on saving yourself lots of money on a professional conduct lawyer when you need one. 

TIP #1 - CHECK WITH YOUR INSURER

More professions include some limited insurance coverage for conduct matters than you might think, but the coverage (or lack thereof) varies greatly. Some coverage is limited to only professional negligence, however there could be bleed through between issues of negligence and conduct. Sometimes certain kinds of conduct coverage is optional, but you might have the optional coverage without knowing. It pays to check, dig, and push a little with your insurer on coverage. I’ve helped professionals with amazing collaborative insurers, where my help didn’t cost them a penny. 

TIP #2 - CHECK WITH YOUR UNION

There’s absolutely no incompatibility between the word “union” and the word “profession.” Lots of professionals are unionized, especially in the government sector. Sometimes a union might simply pay for a private lawyer for you, other times you might get help from an in-house union lawyer. Like for your insurer, you might again need to dig and push on coverage. But unions could be more flexible than insurers when it comes to helping those who really need help. 

TIP #3 - CHECK WITH YOUR EMPLOYER

Regardless of whether you are or aren’t unionized, your employer could have a duty to provide you legal coverage if your professional difficulties arose during the course of your work. Employer-paid coverage can be even more challenging to negotiate than that paid by an insurer or union, but again digging for precedents - who got coverage in the past - and pushing, which could go so far as grieving a refusal, could pay great benefits. 

TIP #4 - RETAIN A LAWYER TO PURSUE COVERAGE

It’s an irony that you might need to retain a lawyer to pursue free coverage for a lawyer in whatever work situation you find yourself in. But it can be worth it, since that initial lawyer seeking free coverage for you probably won’t cost very much if the retainer is limited to negotiations on coverage.

Sometimes your insurer/union/employer might be accept you’re entitled to legal coverage for some services, and not others. But again, you could push - saying for example, that if the facts of the matter all fall within your work, and there is an admission you should be entitled to some coverage, then more expansive coverage actually won’t cost the payor any additional funds. 

You might even wind up with some coverage from an insurer, some from a union, some from an employer, and some you need to pay for yourself. 

TIP #5 - RETAIN A LAWYER EARLY & PICK ONE WHO WILL COLLABORATE WITH YOU

Even if you’re stuck with footing the bill yourself, your legal budget will stretch much further the earlier you reach out to hire a professional conduct lawyer, even if that sounds counterintuitive. It might be possible for your lawyer to quickly kill off proceedings before they ever get going, because they are based on information that isn’t credible or a simple misunderstanding. 

Your legal fees will also be much lower if you find a lawyer who is willing to collaborate with you by offering unbundled legal services, where perhaps you do most of the contact with your regulator or employer, and the lawyer just provides background advice and direction. I never offer that kind of service to non-professional clients simply because by the time I explain how to do things, and then fix their mistakes, it will cost those non-professional clients more in the end. However for professionals I’m always keen to collaborate as my clients are well organized with their information, know their regulator and/or employer better than I ever will, and are usually careful as to how they express themselves to others about their legal situation. 

Gordon Scott Campbell represents law enforcement officers, public servants, and private sector professionals throughout Canada in conduct, administrative, civil and criminal proceedings. He is author of The Investigator’s Legal Handbook series of books, and has served as a Federal Crown Prosecutor, Member Representative with the RCMP, and Counsel at the Military Police Complaints Commission. Learn more at www.proconductlaw.com. 

Top Five Criminal Defence Myths to Avoid: A Barrister Explains How to Save Money While Still Getting an Optimal Result

Despite these challenging times, the wheels of justice continue to turn. Albeit perhaps a bit more slowly than usual.

Even though you’re hardly leaving the house, you might still find yourself in need of a criminal or regulatory defence lawyer. And now is definitely not a time anyone wants to be detained in custody (not that anyone ever wants that).  It’s understandable you could be particularly stressed about how you can afford a lawyer when every dollar counts.

You might be shocked to learn that criminal law is the bargain basement fire sale of the legal world. I’ve more than once had people casually mention to me with complete certainty at social gatherings how they know criminal lawyers are the richest of all lawyers, while the reality of them being the poorest paid of all the legal specialties is exactly the opposite. I’m never sure where people get that impression from, since watching cops and robbers shows usually doesn't reveal lifestyles of the rich public defender (which perhaps seems more reserved on TV for civil and family litigators). But nonetheless, that’s the impression. 

However, the true reality of criminal lawyer fees is good news for anyone in Canada charged with or being investigated for an offence, or with a family member, loved one or friend in that position. The secret to this criminal law bargain is predictability and efficiency in criminal court procedure.

Unlike in family or civil litigation, where it’s mostly private litigants butting heads who can and do spend each other into the ground if they so chose, in criminal litigation you’re up against the Crown. While there is some variability in the way the Crown might respond depending on who is the individual Crown assigned to your file, they still in theory all have to play fair and follow lots of rules. And if they don’t, you can turn to the courts for help. I served for many years as a Federal Crown myself, so I’m speaking from experience. 

Here are my top five myths to avoid on defending a criminal charge and hiring a criminal lawyer that can all cost you plenty in the end if you fall into their traps.

1. I’m Guilty So I Don’t Need a Lawyer 

What you “did” or didn’t do may have little bearing on a court being able to convict you of what you are accused of. Even if you “did” something, you might be charged with an offence completely unrelated to that something. Or charged with many offences unrelated to anything you did. Or there may be major technical problems with the charges, like their being laid outside the limitation periods. 

Even if you do ultimately plead guilty, the type of punishment you get can vary from potentially wrecking your life to having only innocuous effects, all without jail being a risk on either end of the punishment spectrum. For example, if you don’t have a criminal record, and you get offered a harmless little sounding thing called a “suspended sentence,” you might think you should jump at it, because there’s no jail and no fine!

But what if you then lose your job or can’t travel internationally, because you’ve suddenly got a criminal record? The small amount of money you might have saved on not hiring a lawyer will be more than set off by potentially huge loss of income or life freedoms.

A lawyer might have been able to get you a “discharge” for exactly the same conduct, which wouldn’t be a criminal conviction counting against you. Or could at least explain and negotiate all the possible outcomes in order to get the optimal one for you, that would best fit your life circumstances.

2. Always Hire the Lawyer Who Guarantees a Result

It’s never a bargain to hire a lawyer who is offering you “guarantees” they can’t uphold. Run away from any criminal lawyer as fast as you can who guarantees you a result. Trust me, that just isn’t possible. Criminal law results are ultimately up to the judge hearing your case, even on a guilty plea where the Crown is in agreement with the defence as to sanction.

If anything, you want to hire the lawyer who tells you the truth, not what you want to hear. 

That doesn’t mean you should hire (or keep) anyone who you feel is unreasonably pressuring your to plead guilty, by telling you you’re guaranteed to lose at trial. It’s always completely your choice on whether or not to plead. Your lawyer can only give you advice. It’s always better going to trial and losing, than pleading guilty to something you didn’t do. 

3. The Cheapest/Most Expensive Lawyer is Always the Best

In law, like in many things in life, you don’t always get what you pay (or don’t pay) for. There are no law society rules in Canada dictating what defence lawyers can and can’t charge. The market sets their rates. 

Certainly defence lawyers have to be competitive. But you’ll need to carefully compare fee quotes to see what is or isn’t being included in the quote. This isn’t like buying a car, where the brochure carefully explains the extra options of each more expensive trim level.

The cheapest lawyer quote risks not including all the services you need, or having hidden extras. The most expensive lawyer quote risks you buying more services than you need. And neither cheapness nor expense may be tightly tied to experience, where while one might think the cheap lawyers are the least experienced and the most expensive are the most experienced, that isn’t always true, and especially may not translate into who can achieve what results for you. 

Most agree that a “block” flat legal fee quote is best where possible for criminal court cases (and is a thing most criminal lawyers will provide), but check what that really includes:

• is it for the entire proceeding including the trial and do you really need that?

• if it is for part of the proceeding, how much of the proceeding is included?

• are there extra charges for other optional proceedings?

• are you paying for travel time, travel costs, or other disbursement?s

• does the lawyer clearly set out all her or his fees in writing?

And as attractive as a block fee might be, sometimes an hourly rate might actually be cheapest for you depending on your type of case as it lets you only use the services you need. Ask any prospective lawyer about the pros and cons of block fees versus hourly rates. 

4. Rolling the Dice at Trial is Always the Best Plan

The most certain way to cost yourself way more money on a defence lawyer than needs to be spent, and get an inferior result, is to think it best to always gamble with a trial. True, proof beyond a reasonable doubt is a high standard for the Crown to meet. And your lawyer will tell you how strong or weak the Crown’s case is.

But insisting on a trial where a good early plea resolution deal is to be had will definitely cost you way more money than resolving (generally proportionate to the number of trial days required), and could make all the difference between jail or no jail, or discharge versus conviction, because going to trial means you’re not cutting a discount deal with the Crown, and the trial judge likewise isn’t giving you a discount for an early plea because you’ve taken up trial time. 

Yes, you’ll always have a shot at an acquittal at trial. But that’s what it is: a gamble. You might get lucky or unlucky with the judge you get. You might get lucky or unlucky as to what witnesses remember. But at the very least, you’ll pay a lot more in fees. 

Remember, as a criminal defence lawyer, I support myself and my family from those who do pay more by going to trial. But it’s my duty to get you the optimal result, not to needlessly take your case to trial so that I can bill you more. Sometimes trials are absolutely needed. I’ve done hundreds of them. But often they aren’t required, and that will save you lots of money.

5. No Need to Worry Too Much About the Trial Result Since You Can Always Appeal

Your best legal shot is always at trial as compared to an appeal, if you can’t resolve your case pre-trial. At trial, there is an at least in theory level playing filed. On appeal, according to Court of Appeal for Ontario statistic you’ll at best stand a 1 in 3 shot. And that’s not of acquittal, only of getting some remedy. Maybe only a reduced sentence. Or maybe a new trial, which will cost you lots more money. 

And be certain that appeals are definitely not cheap. For the most part, they cost more than trials, because of the transcript costs of all the trial proceedings, and because of all the time that is required to be devoted to drafting complex legal written submissions and combing through all trial exhibits. 

So think of an appeal as a last resort. Yes, if you’re facing really serious charges, you might need to budget in advance for an appeal in addition to the trial in order to lesson the risk of a decade in jail if you lose the trial. But if your budget is tight, it’s definitely the trial rather than the appeal that you should be investing in by hiring a good lawyer at earliest time possible.

Gordon Scott Campbell is a defence lawyer who represents clients on criminal, regulatory and professional conduct hearings, trials and appeals throughout Canada up to the level of the Supreme Court of Canada. He previously served as a Federal Crown Prosecutor and is author of The Investigator’s Legal Handbook/Le manuel juridique de l’enquêteur (Carswell/Yvon Blais, 2006, 2010 francais, 2014 2nd ed, 3rd ed forthcoming). Learn more at www.defenceeast.com and www.proconductlaw.com.

Is Family Law Still Functioning in the Pandemic? Top 3 Tips from a Canadian Family Lawyer on Resolving Family Law Issues Notwithstanding the Public Health Crisis

Lawyers are supposed to know a lot of words. Some might say we are all words (plus occasionally a lot of hot air). But I nonetheless needed to do some online digging to discover that Gideon Harvey explained as far back as 1675 in The disease of London that “Epidemick” and “Pandemick” were different things, though back then both were only used as adjectives rather than nouns. 

Now that we all know just how severely a pandemic can affect the functioning of society, where does that leave us with family law? If law is the glue that holds society together - sometimes more firmly than at other times - what are those with family law issues supposed to do with lawyers working from home and courts greatly limiting physical access? 

The good news is that “the law” itself is not at all affected by disease, other than in being progressively modified to meet the needs of its users. In a shockingly quick way. Where there have been calls for decades for the justice system to do much more with electronic rather than paper records, and  by way of virtual rather than physical presence, it’s taken a pandemic to essentially accomplish in two weeks what couldn’t be done in two decades. 

So what are those needing to use the family law system supposed to do in these exceptional times? What kinds of legal results can they expect, and are there any workarounds? 

Here’s my take on pandemic crashing into family law, as a family lawyer practicing in Ontario. Effects and solutions may be different elsewhere. Though I'm reassured from reading the very detailed “The Remote Access Family Court” just released today by Mr. Justice MacDonald of the United Kingdom’s Courts and Tribunals Judiciary that all courts, lawyers and litigants are facing similar issues, and working furiously (and surprisingly efficiently) to change legislation, implement technology, and simply be creative to solve the problems presented by the interruption of a largely in-person and on paper legal system that has persisted unchanged for centuries. 

1. YOU CAN STILL NEGOTIATE A LEGALLY BINDING FAMILY LAW AGREEMENT

The cheapest and most effective way to solve family law problems has always been through negotiations rather than going to court. As a lawyer who mainly deals with high conflict, transnational and appellate family disputes, I know as well as anyone that negotiation has its limits when one or both parties dig in on particular positions. 

But since lawyers are still out there practicing - they just might be doing so from home or virtually from their existing offices - there is nothing stopping clients from contacting them to work things out with the other side of family transitions. Separation agreements and other forms of family contracts were already being largely drafted through cloud based software. Lawyers and self-reps were already negotiating resolutions by phone, video or email rather than in person. 

So there’s nothing stopping you from creating lasting family law settlements, including exchanging financial disclosure, despite the recent extraordinary events. Reach out to a lawyer if you need one. With the cancellation of all trial dates (at least in Ontario), you might find family lawyers easier to get hold of than usual. Or apply to legal aid if you can’t afford a lawyer, applications are still being taken, and legal aid is still operating in a remote way.

2. YOU CAN STILL SEEK EMERGENCY FAMILY LAW RELIEF FROM THE COURTS

Depending on where you are, many courthouses remain operating, because of how essential they are to the ongoing orderly functioning of society. While civil disputes in courthouses may have temporarily dropped off the map, and criminal cases might only be treading water other than for bail hearings, courts are definitely still hearing urgent family and child protection matters, thought that may be through video or teleconference means.

The challenges right now for anyone with a family law problem needing court intervention is demonstrating to the court that your matter truly is “urgent.” There’s no ideal definition out there of “urgency.” A lot rests on how your pitch your matter, and the discretion of the courts. 

But submitting an urgent case because of child abduction, dissipation of family assets, complete denial of access, or complete destitution leading to being unable to support yourself or your children might still be heard. Judges are still working. Court clerks are still processing cases. A lot just comes down to inherent inefficiencies because of a system that was still based on paper all of a sudden being catapulted into the 21st century, without the hardware, software, training, and protocols already being in place to deal with that. 

Urgent cases can be filed by email to the courts, with documents being served on other parties by email. But rules on such service and filing are evolving every day. Contact your lawyer or if you are self-represented in Ontario you can call a brand new (as of today) Law Society Emergency Family Referral Line during business hours at 1-800-268-7568 for assistance. 

3. FAMILY COURTS ARE STILL HOLDING HEARINGS BY VIDEO AND TELECONFERENCE

Family court judges are all still out there wanting to help you with your problems. That’s their job. The problem is that they are used to seeing litigants and lawyers in person. And all their files are on paper, locked away in courthouses. 

But judges and their courts are adapting. Zoom and Skype for Business seem to currently be the preferred means of holding virtual video family court hearings. And even teleconference can work for more procedural types of applications that involve legal argument rather than live witnesses. 

Once we emerge from the health crisis, I predict there may be no going back to the Charles Dickens Victorian courts practices of paper and people all jammed together in one room competing for a single judge’s attention. I’d certainly not be in favour of an (electronic) paper only process, even for technical cases only involving affidavits. Everyone needs her or his day in court, and the process of dialogue between judges and the parties appearing before them is vital to ensure that all questions a court might have about evidence and submissions are answered prior to final judgment being rendered. But there is not reason a complete dialogue can’t be had by virtual means, and the courts appear to be moving rapidly to provide that.

Gordon Scott Campbell practices trial and appellate family law throughout Ontario. Learn more at www.nofearfamilylaw.com

Why Sexy Arbitration Clauses in Commercial, Family & Employment Contracts Aren't So Sexy: What Every Businessperson, Consumer, Spouse & Employee Needs to Know

That going to court is expensive, takes a long time, and can lead to unfair outcomes seems agreed upon by most who have had to go to a court to resolve some kind of civil dispute, be it of a commercial, family or employment nature. These vexing problems with courts have persisted for centuries. The result of court outcomes that no one could afford, or wait for, or was happy with, naturally led to a search for alternatives.

Why Did Arbitration Become So Sexy?

Like many longstanding problems that people are desperate to solve, it’s not surprising that a theoretically sexy and exciting solution - alternative dispute resolution (ADR) - was seized upon as a “cure all” to clogged costly courts, starting slowly in the early 20th century, then picking up steam in the 1980s and 90s. What you need to understand, however, is that there’s a big difference between voluntary and binding forms of ADR, and that statistics show binding ADR is not necessarily cheaper, quicker or fairer than the courts.

What’s the Difference Between Voluntary & Binding ADR?

Voluntary ADR usually takes the form of mediation. Even if that mediation is forced upon you (like for larger civil disputes in Toronto, Ottawa and Windsor), it remains voluntary in not forcing you to accept the result. It just facilitates talking among the parties. The worst outcome of voluntary ADR like mediation is that you spend some time and money talking through a problem - often leading to naming settlement numbers - and get nowhere.

Binding ADR - usually in the form of arbitration - is totally different, in that you’re supposedly stuck with the result, even if you don’t agree with it. Arbitration is often the result of some clause of an agreement you signed in the past - perhaps quite knowingly in a domestic co-habitation contract, or perhaps unwittingly in the smallest of print of online terms and conditions you clicked okay to - which forces you out of the local court system for disagreements.

And so what’s so bad about that, you might be thinking? Isn’t arbitration always cheaper, quicker, and fairer? Unfortunately the reality can be exactly the opposite of the theory.

Why is Arbitration Not All it’s Cracked Up to Be?

The downsides of arbitration compared to the courts can be:

1. Higher Costs Because You’re Paying for More than Just Lawyers - While everyone understandably complains about court litigation costs, really the only thing they’re complaining about is the cost of their own lawyers. Court fees (at least in Canada) are extremely modest. So you’re not really paying for the judge, or the courtroom, or the court staff. In arbitration, you’re paying for everything: arbitrator(s), hearing location, document filing systems, plus you’re still paying for the lawyer(s).

   Might a quick single arbitrator hearing based on narrow issues that everyone agrees upon, where no one challenges the arbitrator’s jurisdiction, or result, and everyone voluntarily complies with enforcement, possibly be cheaper than a court-based process? Maybe. But that’s still questionable, since while you might (just maybe) save on lawyer fees, you’ll still be paying arbitration fees, and in such a case where everyone agrees on most of the issues, and no high conflict is involved, even lawyer court fees could be quite manageable as the parties could agree to an expedited court hearing on limited evidence and issues.

2. Longer Timelines Due to Collateral Attacks on the Arbitration - Yes, I know this is heresy to say arbitration can take longer than the courts, but I read a lot of cases, and continually see parties engaging in pitched court battles over the arbitration process itself, rather than at least having those court battles on the substantive issues they want someone to settle for them. Thus imagine fighting in court for years over whether an arbitration will even be held, or over the justness of the outcome of the arbitration?

   Don’t believe me? How about a pitched commercial battle where a contractual clause said each party to a dispute would appoint one arbitrator, and then those two arbitrators would appoint a third arbitrator, but one of the parties simply refused to appoint an arbitrator, frustrating the entire process, then dragging out over several years through superior and appellate courts: TransAlta Generation Partnership v Balancing Pool, 2019 ABCA 318.

   Or perhaps you’d prefer a family law example, where an arbitrator settled all the issues between the parties, but then one of the parties launched a superior court appeal, and the parties each brought motions for fresh evidence, essentially trying to pointlessly relitigate all the arbitrator issues, but where the superior court judge ultimately upheld the decision of the arbitrator on all points: Veneris v. Koh Veneris, 2018 ONSC 4164.

   Or an example from the employment law context, where an employee was bound by an arbitration clause, then challenged the clause in superior court, and then further challenged the clause in an appellate court, losing both times but expending considerable time and money in doing so: Ferrari v. University of British Columbia, 2014 BCCA 18.

   However, see exactly the opposite result in the very important decision of the Court of Appeal for Ontario in Heller v. Uber Technologies Inc., 2019 ONCA 1 where all Uber drivers in Canada had supposedly agreed to arbitration of all disputes with Uber under the law of the Netherlands by one arbitrator sitting in the Netherlands (!). The court calculated the demanded upfront administrative fee component of that process (according to the contract imposed on the drivers) as $14,500 US, not including lawyer, mediator and arbitrator fees, and noted the applicant before the court earned a gross income of about $20,000 to $30,000/year. The court struck down the mandatory arbitration clause as "unconscionable and therefore invalid.”

3. Less Not More Acceptance of Fairness of Results - While one of the advantages of arbitration is often touted as letting the parties choose their dispute settlement decision maker (as opposed to some random draw of a judge), even where the parties picked a very specific means of arbitration by very particular people consistent with their mutual preferences, there are numerous examples of the system breaking quickly breaking down and everyone yet again winding up in court fighting over process rather than substance of the core issues at dispute. In Gerstel and 2102503 Ontario Inc. (Harold the Jewellery Buyer) v Kelman and Mortgage Maven Inc., 2017 ONSC 214 one of the parties to an arbitration agreement to refer a dispute to a rabbinical court made up of three Rabbis “became unhappy with the means and manner” of the arbitration, and sought to remove the arbitrators and return the matter for decision to the court. The court refused that relief, but still cautioned:

   There is nothing in what I have said that allows the Beis Din to do whatever it wants. In particular, in this case the arbitration agreement imposes real limitations on the Beis Din. The agreement that there cannot be and has not been any contracting out of the requirement that it abide by section 19(1) of the Arbitration Act, 1991 (the parties be treated equally and fairly) is one. Presumably there is some flexibility in what this may mean in any particular case. Having said this I point out that if the process adopted by the Beis Din ignores or fails to respect these limitations it does so at the risk that this matter will be returned to the Court.

Does Arbitration Work Better for Transnational Disputes?

Now don’t get me wrong. I’m not suggesting arbitration can never work, or be cheaper, or be quicker, or be fairer. Especially for transnational disputes, where there are a mess of competing national laws, and all sorts of enforcement for foreign judgment problems even if a party manages to get a judgment under one legal system but then needs to enforce it in another legal system, everyone picking a arbitration process in one spot, using a single legal system, will usually have huge advantages over competing court-based litigation.

Nation states have a long history of successfully resolving their transboundary disputes through agreed upon arbitration, where a lot of riding on results, and thus cost of the process is of little concern. But because of the costs of these transnational arbitration processes, they won’t always be appropriate for lower value disputes - as confirmed by the Ontario Court of Appeal in the Uber case. Though international arbitration could be worth exploring even in family law cases, where the international stakes are high. and litigating in one country rarely gets ideal easily enforceable results in other countries.

How Do I Avoid the Problems with Arbitration?

In order to avoid getting trapped into arbitral processes that could be more expensive, take longer, and lead to less accepted results than court processes:

1. Consider the Pros and Cons of Arbitration Prior to Agreeing to or Commencing Arbitration - if there’s no obvious advantage to arbitration as compared to court resolution, you should be asking why you are going to participate in it. If you’ve already contractually agreed to it, there’s no reason you couldn’t approach the other party to voluntarily agree to get out of it, as you might not be the only one with concerns.

2. Get Legal Advice Before Agreeing to an Arbitration Clause - while I know this isn’t practical for a $100 software licence agreement, it’s imperative for contracts as important as family law co-habitation or separation agreements, or complex commercial joint venture or purchase agreements. Contractual arbitration clauses might on their face look all warm and fuzzy, until those clauses actually gets triggered and you find out you’re locked out of a court process and trapped in unknown costly arbitration territory.

3. Get Legal Advice Before Commencing and During an Arbitration - lawyers are just as useful in an arbitration as they are in court. The Gerstel case above makes clear that courts will intervene in unfair arbitral processes, but you’re going to need a lawyer to help you assess how fair the process is, and how you escape from it if you do have concerns.

Gordon Scott Campbell assists clients with domestic and international arbitrations and court-based litigation of civil disputes, including family disputes. He has served as a professional negotiator of high value claims, litigated commercial and family claims before the Ontario Superior Court of Justice, the Divisional Court, and Court of Appeal, and represented Canada internationally with UN, OECD, APEC and WTO bodies. Learn more at www.acmlawfirm.ca and www.nofearfamilylaw.com.

Why Every Professional & Businessperson Needs to Fear & Guard Against White Collar Crime Allegations

American criminologist Edwin Sutherland coined the term “White Collar Crime” in 1939, which he defined as “crime committed by a person of respectability and high social status in the course of their employment.” Eighty years later, respectability and social status may not be what they once were, but the term still encompasses those with education working in a business or professional environment pursuing offences usually for financial gain motives. The reason for the fear is that although “accidental crimes” might sound like an oxymoron, it’s a lot easier than you might think to accidentally become ensnared in a white collar crime scheme that puts you under investigation or even leads to you being charged with a criminal offence.

Because white collar crimes are mostly “paper” cases (even though the paper is now digital), there are no smoking guns to seize, and rarely any eyewitnesses to all aspects of the events. Instead, investigators draw circumstantial inferences from the paper: who signed the documents, who authorized the money transfers, who was copied on the emails or text messages, and who said what during compelled or voluntary statements. Sometimes advanced investigative techniques are used to determine what incriminating evidence was found where (if there are search warrants) or who spoke to who on the phone about what (if there are wiretaps).

While you might be thinking: “hey, I’ve got nothing to fear if I did nothing wrong!” think again. Your name could be linked into a white collar crime case without you ever knowing about the transactions being investigated. You could even wind up being charged as a co-conspirator without any direct involvement in the offences, or any benefit received, because an investigator decided that that a piece of paper, or a phone call, or a signature, or an email, links you to facilitating the offences in some way.

So what kinds of white collar crimes do you need to worry about?

During my service as a Federal Crown Prosecutor focussing on white collar crime, I observed a long list of ways to get in trouble with the law, so here’s my top eleven list (because I just couldn’t stop at ten):

a. tax evasion & other tax fraud;

b. corporate misconduct & corporate fraud;

c. securities insider trading & securities fraud;

d. real estate fraud including fraudulent conveyances;

e. price fixing, big rigging & other competition offences;

f. bribery & corruption of public officials;

g. money laundering;

h. bank & insurance fraud.

i. accounting fraud including financial misstatements;

j. customs & trade fraud including smuggling;

k. employee theft.

Many of these offences are facilitated by other offences, like forgery or uttering false documents. Pretty much all of them ultimately qualify as financial offences, as motivation is usually financial gain by at least some of the players in the scheme.

So what kinds of punishments should you be afraid of?

Many find it odd (me included at times) that some of these white collar offences attract much greater penalties than crimes of serious violence like sexual assault. Penalties seem motivated at least in part by deterrence, because some of the crimes are so difficult to detect, and many could be considered “victimless” (like tax evasion) in that it’s the public who ultimately pays the price, rather than having a live victim available to report the crime to the police. Some more cynically suggest it’s because laws are written by the rich for the rich, and these crimes risk making the rich less rich; even though ironically it’s the relatively rich often committing them.

Whatever the reason, you risk getting walloped on a first offence conviction for anything on the above list. How walloped? Try a four year stretch in a federal penitentiary and up for a major financial fraud. Sentences of 5, 6 or 7 years aren’t uncommon. Together with a fine in lieu of forfeiture and a restitution order in the millions that you’ll likely have hanging over you for the rest of your life.

But it gets even worse if the Canada Revenue Agency then comes after you to tax you on all your supposedly ill gotten gains, at 52% tax, even though there might be no proof that you actually received anything. And unlike the criminal fine or restitution, that civil tax assessment will immediately and retrospectively start accumulating interest, so that you probably won’t even be able to keep ahead of interest only payments, far less pay down the principle.

And don’t get to thinking that bankruptcy will let you escape all these debts - it doesn’t work that way, otherwise everyone would do it. Oh, and did I mention the bonus criminal record for life (unless you manage to eventually get a pardon which they refuse to now call a pardon) which will restrict your employability and ability to travel, thus crimping chances you might have of paying things off?

So what can you do to protect yourself?

1. Preserve Documentary Evidence. Anytime you do get a premonition that things are perhaps not as they should be in your profession or business, even though you’ve got no involvement, and aren’t even sure anything improper is happening, you should save whatever evidence you can to later protect yourself. Emails, documents, financial records. They might mysteriously disappear later.

Because you may have professional or business obligations concerning those records, you definitely shouldn’t leak them, or be careless about saving them, or essentially misappropriate them, or you could get accused of a civil or criminal offence yourself. But if you’ve lawfully come into possession of the records, there may be nothing stopping you from at least saving and segregating what could later be life saving documents.

2. Don’t Make Secret Audio Recordings. Technology has now sufficiently advanced that pretty much anyone anywhere can secretly record the conversations of others, be they on the phone or in person. But don’t do it. As smart as you might think such recordings are in protecting yourself, you might even be committing an offence if you secretly record conversations you’re not a party to, and at the very least you’ll come off looking like the bad guy or gal.

The reason such strong wiretapping laws exist in the Western world (special judges, special authorizations) is to protect everyone’s verbal privacy. Yes, I know this is a long way from now typical practice of everyone saving and later producing compromising text or social media messages where according to the courts there appears to be little in the way of privacy protections. But that’s just the way the law currently is. Essentially, wiretap laws were not invented until almost 50 years after the popularization of the telephone. So who knows where things will go in the long term with Internet communications protections.

3. Get Early Legal Advice. Just as it’s much easier and cheaper for a plumber to fix a dripping faucet than a burst pipe, so too with lawyers giving a little early advice on potential professional or business liability exposure, rather than immediately needing to wade into court to defend you on criminal charges. Early legal advice will help guide you on what to do and not do with your continuing professional and business obligations. Early advice will teach you when to talk or not to investigators, including when you might be legally obligated to spill the beans, as compared to when it’s truly a voluntary statement.

I’m not suggesting you need to pass every waking hour of your work day in total paranoia that there’s going to be a knock on your overly thin office door or cubicle wall to haul you off to jail. Rather, I’m suggesting that in 24 years of doing this, just when I think I’ve seen every way people can secretly rip each other or the government off, I see something new.

Most of the schemes are surprisingly simple. Many are way more profitable than I could ever imagine such simplicity would generate. And some lives get destroyed in the wake of their undoing even though they didn’t originate or benefit from the schemes. Be proactive, and don’t let yourself be one of those unlucky people.

Gordon Scott Campbell served as a Federal Crown Prosecutor with the Department of Justice Canada, is author of The Investigator’s Legal Handbook (Carswell/Les Editions Yvon Blais) series of books, and defends professional and business clients against criminal and regulatory allegations - including allegations of professional misconduct - throughout Canada. Learn more at www.acmlawfirm.ca, www.proconductlaw.com, and www.defenceeast.com.

Ever Wondered if it's Possible to Enforce a Foreign Judgment in Ontario? Here are the Top 5 Principles for 2019 of Getting a Foreign Order Recognized

A perfect, though perhaps more boring, world would have one single legal system, where you could go to any court, get justice, and then seek to apply that court’s justice anywhere else in the world. Get judgment on a debt, and then enforce collection. Get judgment on child custody, and then collect the children. Get an order to stop someone from going something - like publishing libellous statements on the Internet - and then make that person stop.

But of course the world’s far from perfect. And infinitely complicated. So complicated that there are not only hundreds of legal systems, but potentially thousands of co-existing systems if all the world’s states and provinces within countries are accounted for. Even Canada has 13 different legal systems accounted for by each of the provinces and territories.

Sure, many of those systems are similar. But being similar isn’t enough if they aren’t identical for the purpose of judgment enforcement. Thus getting a court judgment from one system doesn’t mean you can waltz over to another system and automatically enforce it. You’re going to need a court order from the second system, giving its stamp of approval to the first order.

Showing up at a court counter with a stamp unfortunately isn’t the way it works. But enforcing a foreign judgment doesn’t need to be impossible.

A very useful new case in Ontario for 2019 evocatively called Dead End Survival, LLC v. Marhasin, 2019 ONSC 3453 sums it all up, as it was penned by Mr. Justice Perell, long a leading writer and teacher on Ontario civil procedure. He created what can be summed up as 5 principles for foreign judgment enforcement in Ontario.

Principle #1 - Foreign Debts will Be Enforced Absent Fraud, Natural Justice or Public Policy Violation - “At common law, a foreign judgment is, in effect, a debt that can be enforced by a cause of action to claim payment of the debt, and absent evidence of fraud or of a violation of natural justice or of public policy, the enforcing court is not interested in the substantive or procedural law of the foreign court that granted judgment.”

Principle #2 - Defendant May Not Relitigate Foreign Trial Issues - “In an action to enforce the foreign judgment, the Ontario court will not relitigate the underlying litigation that gave rise to the judgment, and if the foreign judgment is proven and is final, the Ontario court will enforce the foreign court’s judgment with a judgment of its own.”

“Given that the domestic court will not relitigate the substantive merits of the foreign judgment and although the creation of new defences is possible, there is only a small list of defences to the enforcement of a foreign judgment.”

Principle #3 - Foreign Non-Monetary Judgments Also Enforceable - “Foreign non-monetary judgments, including judgments for equitable relief, such as specific performance or an injunction are also enforceable. For a foreign non-monetary judgment to be enforceable, it must have been rendered by a court of competent jurisdiction and must be final, and it must be of a nature that the principle of comity requires the domestic court to enforce it. The domestic court retains the discretion that underlies equitable orders and may exercise that discretion in deciding whether to enforce a foreign equitable order.”

Principle #4 - Must be Attornment to Foreign Jurisdiction or Real & Substantial Connection to Dispute - “Subject to the defences, a Canadian court will enforce a foreign judgment if the defendant attorned to the jurisdiction of the foreign court or if the foreign jurisdiction had a ‘real and substantial connection’ to the dispute. The real and substantial connection is the overriding factor in the determination of the jurisdiction of the foreign court, and once it is determined that a foreign court properly assumed jurisdiction, a foreign judgment is prima facie enforceable.”

Principle #5 - Foreign Judgment Need Not Be From Most Real and Substantially Connected of All Possible Jurisdictions - “In deciding if the dispute had a real and substantial connection to the foreign jurisdiction, the domestic court must find that a significant connection existed between the plaintiff’s cause of action and the foreign jurisdiction. In determining whether there is a real and substantial connection, the domestic court should consider the connections between the subject matter of the action, the alleged wrongdoing, the place where the damages are suffered, as well as with the transactions of the parties and with the action.The connection must be real and substantial but not necessarily the most real and substantial connection of all possible jurisdictions that might have a connection to the dispute. The real and substantial connection test is not a rigid test, and must ultimately be guided by order and fairness, as opposed to a mechanical counting of contacts and connections.”

Simple, eh? Well, maybe not really, But at least you don’t have to start over from square one.

The increasingly clear message of Ontario courts is that they’re fed up with plaintiffs getting legitimate judgments from legitimate courts, only to have defendants in Ontario try to relitigate every last issue again in Ontario just to avoid enforcement, because the people, or money, or activities happen to be in Ontario and thus it’s only here that they’ve now decided they want to put up a huge fight that’s really already been lost elsewhere.

So no matter what kind of judgment or order you have, and no matter from which body it was issued, it may be worth attempting to enforce it in Ontario, and you may well avoid having to repeat the whole painful process of getting the judgment or order in the first place.

Gordon S. Campbell is an Ontario Barrister who enforces the judgments of other countries, states and provinces throughout Ontario, especially working with judgments from the United States of America and Quebec. He practiced transnational and international law with the Department of Justice Canada and served with Global Affairs Canada. Learn more at www.acmlawfirm.ca.