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Welcome everyone. This is Amer Mushtaq from You Counsel, today, we’ll talk about 10 common misconceptions relating to the Wrongful Dismissal in Canada, the law of Wrongful Dismissal in Canada. We’ll use most of the examples from Ontario, but they generally apply throughout Canada … so, these are useful across Canada.

Before we begin, just a disclaimer that this course is not legal advice, so. if you have any specific questions about the issues you’re facing you must contact a lawyer or paralegal. And if you don’t know a lawyer or paralegal, you can contact Law Society of Upper Canada Referral Service. We have provided the link here that you can use right here, or if you’re in a different province you can locate the Law Society of that province and contact them and they can direct you to a lawyer or paralegal.

Okay! Misconception number one, layoff equals wrongful dismissal. This is a common misconception we get it from our clients all the time. We get contacted by a client, a client say’s, “Amer I got laid off from my employment, I need some legal advice” and my question always is, “are you really laid off or are you terminated”? The distinction is important, the two layoff and wrongful dismissal or termination or firing or loss of employment whatever you may call it, are different terms and layoff is a completely different term. Layoff is a term that is used in Crime and Statute specifically, and it has a specific meaning, so, it’s important to understand that … so that you can understand your rights accordingly.

So where do we go? We go to Google and let’s say we type in Employment Standards Act Ontario which is right here, you go to this CanLii website that has all the statutes Canadian, Federal, Provincial. This is Employment Standards Act 2000, it relates to Ontario and let’s say if you are looking for the term, “layoff” you type in layoff, and here is one example of it. If you scroll down, you can find more information about layoffs. Lets see … so far, in layoffs, or lets say they say lay… layoff resulting in termination keep going down.

Look at this section, it’s section 56 and it talks about what constitutes termination, right? And so what constitutes termination, and if you scroll down, Section C is the employer lays the employee off for a period longer than the period of temporary layoff. And then it defines what a temporary layoff is. So, just so you understand it, “Layoff” in statute means that you are temporarily laid off from your employment, which could be one week, two weeks, three weeks, up to 35 weeks or so …. depending upon which province you’re in; and the employer has a right to recall you back to work. So, it is not a termination it is a temporary layoff and the employer has a right to bring you back, which is not termination. There are specific circumstances in which a layoff automatically becomes termination and we’ll talk about it in a separate lecture, but the important thing to understand is when you are terminated or laid off you need to understand exactly what has happened to you. But the misconception is layoff equals wrongful dismissal, which is incorrect.

Misconception number two … a lot of employees believe that an employer must give them two weeks termination notice and once that is provided, the termination is fair and they can proceed on with their lives. That’s a common misconception. Your entitlement on termination could be much, much more than two weeks. They could be more weeks, eight weeks, twenty weeks, or are they could be as high as two years of notice; sometimes a little bit more than that. So it’s a common misconception we get from a lot of our clients when they approach us and they’re describing the circumstances of their terminations, and when we say you know, you were wrongfully dismissed, and they’ll say, “no, no, no I got my two weeks notice I’m not wrongfully dismissed”. So be careful about that.

Another misconception about termination again is a lot of people believe that they are entitled only to the statutory rights, what does that mean? A statute is a legislation, these are the laws that are created by Parliaments whether provincial or Federal, and they are created in the form of a statute. So, I’ve given you an example Ontario Employment Standards Act as one statute right here, and it does provide what are your rights on terminations and so, Section 57 is really right here. Employee-Employer notice period, and then it provides if you were employed for two years, three years, eight years or more what your rights are. And what happens is a lot of times when people are terminated they, obviously, try to research the dismissal issues online. They go to Google they find the Employment Standard Legislation, they read it and then they conclude that if they were given the rights that are in that statute that’s all they’re entitled to, so, that’s the end of it. It’s a very common misconception and a very significant one, because your rights could be a lot more than what’s written in the statute.

Statute generally are the floor rights, these are the bare minimum rights that you’re entitled to. They may not be the maximum rights and the difference could be huge in terms of what your entitlement are. So, one way to understand it, is that you may have statutory rights, which you do; and then you also may have common law rights, which is another lecture we’ll explain that. But, you may have significantly more rights than what’s in the statute. So, it’s a common misconception just because you have been given the notice as per the statute, it does not mean that you have been given your full rights and termination.

Another misconception is that when the employer terminates you they need to have a just cause against you. We get clients calling us and saying, I have been terminated but I had done nothing wrong. I was working for this employer for 10 years, I have great performance evaluations, the employer has no grounds to terminate me and they have terminated me and therefore it’s wrongful dismissal. That is a misconception. An employer in law in Canada has a fundamental right to terminate any employee at any time. So, you could be employed with a company for 30 years and one fine morning the employer can come to you and say, thank you very much pack your bags we no longer need your service; and that’s okay. There’s further to that, the employer is required to give you your severance or termination notice … that’s the second component of it. But just the sheer fact that the employer needs to have a reason or a cause against you to terminate you is incorrect. And I guess this comes from you know our understanding coming from mostly from our parents, or even for some of us who are older; that you know people used to work for one company for their entire life or for a very long period. And somehow they tend to believe that the right to employment with the same company is for indefinite term, but that’s not the case it’s a misconception don’t think about that.

Relating to that, is another misconception that employer must provide a reason for termination; we get this again, a lot of times. A client comes to us and says, “I was called into this meeting, there was a Human Resources person. my manager was there. They gave me this letter which basically said that my employment is terminated and this is what I’m going to get as a part of severance … but I asked them why did they terminate me and they did not provide me any reason”; and their failure to provide me reason means that it’s a wrongful dismissal. That’s not correct, an employer does not need to give you any reason. Often times the employer does give you some reason either for example, you know it’s undergoing restructuring or the change of nature of business, or your particular position is eliminated and that’s all fine. But there is no legal obligation on the employer to provide you with a reason for termination. They can terminate you without providing any reason, so, that’s a misconception.

Misconception number 6, and we see this often too. Employers cannot terminate me since I am on disability. People on disability and that does not necessarily mean a disability in the form that we normally understand, people who are on wheelchairs, or who have those sort of, parking stickers and disability not necessarily that. Disability and Human Rights Code is a very broad term and so, it could apply to a variety of illness situations so it’s a very broad term, but anyway. People on disability for whatever reason either they’re in short-term disability or they are on medical leave of any kind; and the employer terminates them while they’re on leave and they believe that it’s discriminatory and the termination is wrongful. But that’s not necessarily the case, if the termination is related to or is because off disability, then yes, you may have a claim for wrongful dismissal or human rights discrimination. But if it’s unrelated to disability then the employer has a right to terminate people even if they are on disability. So, for instance, if you are on short-term or long-term disability getting benefits for those kind of illnesses, and the employer undergoes some sort of restructuring and the result, the consequence of that, is that he your employment is terminated. Not because you’re disabled or not because you’re in disability or illness, but quite apart from that then it’s fine. You don’t have a legal right to have employment kept for you until you return from your disability.

A similar misconception relates to when women are on maternity leave or parents are on parental leave, they assume that for the length of their parental or maternity leave, their employment is kept and an employer cannot terminate them – incorrect. An employer can still terminate you even if you’re on parental leave or maternity leave. As long as it’s not the act of termination is not discriminatory, it’s not because you are on mat-leave or it’s not because you’re on parental leave, so, that shouldn’t be the reason or one of the reasons for termination. But otherwise an employer has right to terminate you at any time.

Misconception number 8, this is from the employer’s perspective. Sometimes these are sort of, unsophisticated employers and we have seen a few of those, which believe that if they don’t have a written employment contract with an employee that employee has no rights and terminations or any other kind. Incorrect, an employee has a number of rights. Just like employer has a number of rights the employee has a number of rights under common law and under statute that may be enforceable, even if you don’t have a written employment contract.

Related to that on the other side of the coin is the employee believing that because he or she does not have a written employment contract, you know, they don’t have any rights on termination, which is incorrect. And just sort of you understand this from the employee side. If you are an employee and you don’t have a written employment contract then generally speaking, you have the most rights available to you under common law, especially on terminations then if you actually had a written employment contract. So, generally speaking, a written employment contract generally tends to limit your rights from common law to what is specified in that contract … not the other way around. So, one way to put it, is that when employer provides you with a written employment contract. It’s generally for its own interest, not necessarily for the employee’s interest, so, something to keep that in mind.

Misconception number 10, my employer gave me working notice but they have not given me any severance. And I’m using the term severance more broadly in a sort of common terms; we will explain what is a severance pay in a separate lecture. But my employer didn’t give me the money, let’s put it that way. I got a working notice. So, it’s important to understand that employer does not have an obligation to give you money on termination, the actual the real obligation is to provide you with working notice, what does that mean? The employer comes to you and says, “okay, two months from now, so, let’s say we’re in January. You know March 31, 2017 your employment is going to end, that’s your last your employment is terminated I’m giving you notice today and so you’re required to come to work every day just like you are employed and perform your duties and you will get paid and then come March 31^st you leave this employment and you’re gone, and you don’t get any more money. That’s what the fundamental obligation is, to give you working notice, whatever that working notice is”. But, in most cases employers what they tend to do is rather than giving working notice they call the employee and say, today you’re terminated today, you don’t show up tomorrow and we’ll give you money until March 31^st and that’s called Payment in Lieu of Notice. But that’s not the essential legal requirement; the legal requirement is just working notice. Why a lot of employers do that? That they give money to employees as opposed to working notice? Because they don’t want an employee who is going to lose his or her employment in the near future to come back to work. It kind of makes their job harder, it makes it difficult for everybody around them, and so, kind of creates a tense environment and workplace. So employers, in order to avoid that, they give money in lieu of notice. But there’s no entitlement in terms of money.

Okay, hopefully that helped in clarifying some of the basic concept about Wrongful Dismissal. We will provide more videos on these topics and hopefully it will help you understand better your rights and obligations under Employment Law in Canada.

If you have any questions or comments please send us an e-mail, if you require a consultation you can book it through Clarity or you can reach out to our law firm Formative and we’ll be happy to address that. And if there are any topics that you would like us to cover or if there’s anything that you noticed that you did not understand in this lecture by all means reach out to us, and we will be happy to clarify that. Thank you for listening, see you soon.

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Welcome everyone, this is Amer Mushtaq from You Counsel. Many of you may not know this, but 50, 60 up to 70 percent of the people who have their cases in civil courts in Canada are no longer represented by lawyers or paralegals – they are representing themselves.

There have been studies done to explore this issue in detail and these studies suggest that the two common reasons are that the cost of legal services are so high that it is not possible for many people to retain lawyers. And to give you an example, an average trial in Ontario in Toronto which runs for about two to three days, can cost upwards of $50,000 from the time you hire your lawyer, in the beginning till the time the matter goes to trial and it’s completed. So, those are sort of the average cost of legal services or lawyer services in Ontario, which is significantly high, and people can no longer afford it. And another reason that comes up often is that people were not satisfied with the kind of legal services that they received from their legal practitioners and they decided to take control of their own matters. So we’ll talk today about what self-representation is and how to do it.

The usual disclaimer that we provide is that this course is not legal advice so if you have any specific questions you should contact a lawyer or paralegal or referral service of your Law of Society of your province.

Self-representation, so, what does it mean? We’ll talk about it; can you do it as a person who is not a lawyer or a paralegal? Should you do it and if you decide to do it, how do you how should you go about it?

What does that mean? When you’re representing yourself that means that you’re dealing with all lawyers from other parties, you’re dealing with them directly, or any legal practitioners … you’re dealing with courts, judges, the courts staff. You’re standing before the judge and making your arguments representing your case in every manner, dealing with other parties, or non-parties if they are related to your court action … you deal with all of them. So, in essence, you are the lawyer everything that was previously done by a lawyer now is being done by you, so, you are the quarterback you are the person who is in charge.

Can you do it? This question is answered by the Rules of Civil Procedure every, province has its own Rules of Civil Procedure, Ontario has the rules that are called Rules of Civil Procedure Ontario and they will tell you whether you can represent yourself or not.

In Ontario, it’s Rule 15, that deals with self-representation and we’ll talk about it. And then this Rule, Rule 15, also lists circumstances where you cannot represent yourself. So there are generally three circumstances. One is if you have any disability. If you are a person of under disability, then you must retain counsel to represent you in your legal matters. If you are acting in a Representative Capacity, and what does that mean? I’ll give you an example, let’s say if you are the Estate Trustee of an estate, then you are acting in a Representative Capacity and so, then you must have a lawyer representing the estate. And third, the situation if you’re a corporation, you cannot represent yourself, the only exception is that the corporation can seek permission from the court and if it’s granted, then the corporation can represent itself, meaning that an officer or a director of the corporation can represent the corporation. So, those are the three circumstances where you cannot, in every other case, you should be able to represent yourself.

In Ontario, let’s look at the rules; you have seen this before, in previous lectures this is Rule of Civil Procedure RRO1990 regulation 194. These rules are available online if you Google it, and let’s go scroll down to show the table of contents and we’re going to look at Rule 15 which is down here, Representation by a Lawyer.

And if you read this rule, I’ve given you the gist of it, if you’re under disability or if you are in a Representative Capacity, then you know you shall be represented, meaning a lawyer must represent that party. And then if you’re a corporation you can do that, you cannot represent, you shall be represented by a lawyer except with leave of court, meaning that you need court’s permission. So, this is the rule that talks about it and if you follow on 15.01 Sub 3, any other party to a proceeding may act in person or be represented by a lawyer. So, if you don’t fall under these three categories then you are allowed to represent yourself or choose a lawyer to represent you and we’ll come down to sub rule subsection 4 in a bit.

Should you do it, what is my answer? Absolutely yes. This lecture is really not about me persuading you and giving you the benefits of self-representation, this is for people who already believe that they can represent themselves or find themselves in a situation where they have no option but to represent themselves so, we’re going to talk about how to do it. I will provide a separate lecture and you will hear me talking about the issue of self-representation and advocating for it endlessly so, that’s something that’s close to my heart, but we’re going to talk about it at another stage.

So, let’s jump right into how to do it, and we’ll look at Rule 15.01 Sub 1 Sub 2 and Limited Scope Retainer and Unbundled Services. I’ve thrown three terms at you, especially a Limited Scope Retainer, so, let’s look at what does this mean. So, we go back to our Rules of Civil Procedure and let’s type in, “Limited Scope Retainer”. Lets go all the way up, so, “Limited Scope Retainer”. And we’re looking at 15.01 Sub 1, Sub 4. So, Sub Rule 3 permits a party to be represented by a lawyer acting under a Limited Scope Retainer, but a Limited Scope Retainer does not in itself make a lawyer, the lawyer of record for the party, so, what does this mean? In simple terms, you’re allowed to have a lawyer represent you on a limited basis. That’s essentially what it means. And so, what is a Limited Scope Retainer? We want to look at the definition and see if these Rules of Civil Procedure do provide for a definition. So limited lets type it again. Right here it provides the definition, what is a Limited Scope Retainer? It means, “the provision of legal services by a lawyer for part but not all of a client’s legal matter by agreement between the lawyer and the client”. So, two things that come out of it out of these rules, one is that Limited Scope Retainer is allowed and then it’s defined as services provided by lawyer which are not full services, only in part as long as you the client and the lawyer agree to it.

So, I just want to give you a bit of a background of why this particular section of Rules of Civil Procedure is important. Back in the days, not too long ago, when you had a legal matter and you had to go to court you will go hire a lawyer and the lawyer will be the Lawyer of Record, meaning that the lawyer’s name would be in courts or records and anything that relates to that action, your action, you know your lawyer, will be dealing with it on your behalf, and the lawyer will be retained for the entire matter is the full retainer. You hire the lawyer, you do the consultation, the lawyer does drafting, the lawyer does representation, the lawyer writes to other sides to correspond with everybody else, and you are basically sort of, you know, advising. You are instructing the lawyer, but the lawyer is doing everything on your behalf. That thing has changed now, and so, now the Law Societies have opened up to the idea of Unbundled Services and Unbundled Services and Limited Scope Retainer are kind of similar things.

So, before it was all Bundled Services. So, you hired a lawyer he does everything for you all the way to the end, and now you can pick and choose. You can assign specific tasks to a lawyer. So, you hire a lawyer for a specific task and otherwise you don’t need that lawyer. So, that’s called a Limited Scope Retainer, that’s called Unbundled Service, it was not available before or is not available as readily before, and it is something which is very, very, valuable and very underutilized. People just don’t understand this concept and they don’t know how to best use this idea and so, I’m going to sort of explain to you how to benefit from it. So, you get the best of the both worlds right? You spend less money, you get all the legal advice on the topics on the points that you actually need; and then you save your money on other matters that you actually do not need any legal representation or legal advice on that matter.

So, keep in mind that in a Limited Scope Retainer, in Unbundled Services, you are in charge. You are the lawyer, you are the quarterback you decide how things are done, and then you bring in a lawyer as needed. So, you decide at what stage you need, and a lot of times where you need legal advice is to understand the basics of the law applicable to your facts situation and understand the processes, because process legal process, can get complicated. But if you can get an understanding of that from a lawyer then you understand it better and then you can deal with your matters yourself. So, in my humble suggestion, what you do is you, do a consultation with your lawyer, at the outset of the case. So you walk in you talk to a lawyer and say this is my fact, this is what happened, somebody let’s take an example, “John Smith owes me $20,000 he had borrowed from me and he’s not giving it back to me what do I do”? And then in that consultation the lawyer tells you which court you go to, what is the process, you know all of these things, he’ll give you the fundamental information and guide you in terms of what homework what research, what things you have to do now to prepare that case. So, that’s an initial consultation.

My suggestion is get the initial consultation at the outset to understand the case, and then figure out a strategy with a lawyer, you know, how you go about doing it, what are the things that you let go in your case, what are the things that you emphasize upon, all of these things that’s part of the strategy – you discuss with your lawyer. And then, throughout the course of your case, you use your lawyer as your sounding board. You come back to your lawyer and say, “hey, this is what happened what do you think?”, and those are sort of very Limited Retainers Limited Advice, which gives you the exact thing you need and then you can go back and then work hard on your case and then continue to represent yourself.

So, that’s where the Limited Scope Retainer or Unbundled Services are used best and this is what I strongly recommend. And you’ll be amazed you’ll be surprised and I’ll give you an example how much money you can save. I have a client who I represented on a matter without you know not as an Unbundled Services, but fully represented him but he had some other issues. And I recommended to him that because his issues did not carry that much monetary value, it wasn’t worth it for me to get involved as a lawyer because it would have cost him a lot more from my representation than to sort of act on his own. And so, my suggestion to him was that why don’t you represent yourself and I’ll give you advice and I’ll give you directions and then you use them, those directions and then represent yourself and he actually followed that strategy, and this is sort of, a more recent example. And he actually had a case against a Legal Practitioner who had been practicing for many, many years a personal case against him, and he ended up having I think three different motions, one in Small Claims Court, one in Divisional Court, and then some other matter. And he was successful in every single motion, every single time he was successful simply because, a) he got a better understanding during the consultations and then he worked hard on the stuff that was needed and he presented it properly and he was successful. So, it’s not something that is too complicated … if you align your resources properly and then get the direction and get the advice when you need it, and then work hard on the stuff that you have to work hard on.

So, let’s talk about some of the resources that you have, there are more and more resources coming out to help self-represented litigants. The first one, I recommend is National Self-Represented Litigants Project, this is run by Professor Judy McFarland, she’s a professor at Windsor Law School and check out her website. I will provide the information in the description under this course, but check out her website. They also have a database of lawyers, a national database, where you can find which lawyers are available to provide Unbundled Services. Some lawyers are still reluctant to provide Unbundled Services for obvious reasons, but there are many lawyers who are willing to do that myself included, and so you get that information from there. Legal Aid Ontario has put up some YouTube videos, which are helpful on some basic legal topics that will increase your legal knowledge about different matter so by all means check that out.

We strongly believe that You Counsel will be your fundamental source for everything law, everything legal. We try to simplify it in a way that you can understand the law and benefit from it directly. We also have You Counsel forums, which is a forum where people can provide comments and post questions in their experiences of law, so, that will continue to develop and you can get information from there. And one resource, which is often neglected or underutilized are law libraries. Law libraries are available to public and especially Osgoode Hall Library downtown in Toronto is available. And if you go talk to a reference librarians, they are a source of, you know, so much information and they’re so underutilized and they’re very helpful so go talk to them get the basic information, do your research, do your homework, and there is no reason why you will not be able to effectively represent your case and win your cases through self-representation.

I’m a strong advocate of it; you will hear me talk about this endlessly. You Counsel’s basic purpose raison d’être … is really to empower the public and give them the opportunity to understand the law, participate in it, and then plead their own cases without the assistance of intermediaries.

Hopefully this was helpful, we’ll talk more about it you’re welcome to contact us. And just so you know in terms of consultation, you notice I have this Clarity.FM place and so, this is sort of one venue where actually I provide answers to basic questions on a payment by minute. Usually you retain lawyers on an hourly basis, and you have to even for a consultation you have to pay for an hour, but you can literally talk to me for three minutes and spend only $15, $20 and get your answers and then focus on your case, so it’s possible, it’s being done, other lawyers will be following soon. Hopefully this is helpful and we’ll see you in the next lecture.

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Machine Transcription:

Welcome everyone this is Amer Mushtaq from You Counsel. You can commence a civil proceeding in Ontario in one of the two ways. You can either commence a court action or you can commence an application. What are the differences between the two? In what circumstances do you commence a court action and in what circumstances do you commence an application? That’s today’s topic and will explain that in basic simple terms, so, you can get a good understanding of whether you should commence a court action or an application with respect to your specific civil dispute.

As always, we commence with the disclaimer that this course is not legal advice so, if you have any specific questions you must contact a lawyer or a paralegal.

Now, civil proceedings in Ontario, are governed generally by two legislations, The Course of Justice Act and the Rules of Civil Procedure. The Rules of Civil Procedure are essentially regulations made under the Courts of Justice Act, both of these legislation are available online you can Google them and review these.

So what is an action? In order for us to find out what an action is, the best place to look at is the Rules of Civil Procedure itself and see how the rules have defined an action, so let’s go to Google and type in, “Rules of Civil Procedure”. We go to the CanLii website which is the most common that I use, but you can go to the government website and look at that. So, we are at, Rules of Civil Procedure and you want to know the definition, so, lets say we type in “action” to look for the definition. And Rule 1.03 Sub 1 is the rule that provides definitions of various terms that are used within the Rules of Civil Procedure, so you understand what is the context of that specific term … how is that used … how is that interpreted within the rules. So, here we have the term action, action means a proceeding that is not an application and includes a proceeding commenced by a statement of claim, notice of action, counterclaim, cross claim, or a third, or subsequent party claim.

So, there are two components here, action is a proceeding, which is not an application. Okay, so we want to understand now what is meant by the term, “Proceeding”, let’s look at that … and then the second component we want to understand is what is an Application? Because the way the action is defined is an exclusionary way, what is not an Application, and is a Proceeding is an action. So let’s look at what is a Proceeding.

To look for the definition of proceeding, again, if we go into Rules of Civil Procedure and type in the word, “proceeding” and let’s see if that word is defined in the rules. There you go, proceeding means an action or application. So, in simple words, an action or an application when that’s commenced, that’s called the proceeding, that doesn’t help us too much. Let’s look at the definition of what is an Application and maybe that will help us figure out what is an Application and therefore, what is not an Application and is a Proceeding, will be an action.

So, let’s look for the word Application. Go all the way to the top, so, that we don’t miss out on any definition, type in “application” and we go down to Rule 1.03 Sub 2, and it defines applications. Application means a proceeding commenced by notice of application. Not much of a help, you can’t figure out what is an application it’s something that is commenced by notice of application, so I think we need to figure out what a notice of application is and how do we get there and see if we can understand better the definition of application.

I have already sort of expedited the process … it is defined in Rule 14.05, so, let’s see if we can get to Rule 14.05 and see if we can get an answer here. Rule 14.05 titled Notice of Application and clause Sub 1, provides some information but if we scroll down in 14.05 Sub 2, it says application under statute, a proceeding may be commenced by an application to the Superior Court of Justice or to a judge of that court if a statute so authorizes. So, what this means is, if you’re dealing with a specific statute and that statute says that the rights under that statute or any remedies that you want under that statute can be obtained by commencing an application, then you have that right to commence an application. So, that is specifically under the statute.

Now, look at application under rules which is 14.05 Sub 3, and it has a number of categories and we’ll briefly go over these categories to give us a sense of what maybe an application. A proceeding may be brought by application where these rules authorize the commencement of a proceeding by application aware the relief claimed is, and so what is it that you’re asking from the court? In an application, you’re asking for the court the opinion advice or direction of the court on a question affecting the rights of a person in respect of the administration of the state of a deceased person or the execution of a trust. In broad terms, what it is saying is if you are asking the court to give opinion, advice, or direction on the rights relating to an estate matter or a trust, then you can commence an application.

Second Sub B, Sub C, Sub D they’re all sort of related if you notice Sub B it say’s an order directing executors administrators or trustees to do certain things or not to do certain things with respect to an estate or trust. So, if you have to get any orders with respect to the administration of the estate to where it’s the executors, administrators, or trustees you again, bring an application. Removal of trustees, appointments, replacement, you do that by way of an application. And then determination of rights that depend on the interpretation of a deed, will, contract, or other instrument or on the interpretation of a statute, order and council regulation our municipal by-law or resolution. So, there are very specific examples or situations in which you can commence an application, first we have covered that mostly the matters that relate to an estate or a trust are dealt with by way of an application. If you are dealing with the interpretation of a statute, you go and bring an application order and council, municipal by-laws, regulations, and resolutions. And then this one is important interpretation of a deed, will, contract, or other instrument. So if there is an instrument, an instrument as you know in broad terms is a document either a contract or any other document that has been drafted and you want the court to interpret it in terms of legal terms and then you can bring an application.

Sub E is the declaration of an interest in or charge on land including the nature and extent of the interest or change or the boundaries of the land or settling of the priorities of interest or charges. So, these are sort of charges on land that can be dealt with by way of an application.

The approval of an arrangement or a compromise, or the approval of a purchase, sale, mortgage, lease or variation of trust. Again, something relating to trusts. Then injunctions, mandatory orders, declaration, appointment of receivers these are sort of, in the bankruptcy proceeding or restructuring proceeding and what not. And this one is important if you’re seeking any remedy under the Canadian Charter of Rights and Freedoms then that’s done by way of an application.

And the last one is most important in respect of any matter where it is unlikely that there will be any material facts in dispute. So those matters where material facts are generally not in dispute can be dealt with by way of an application.

So, those are sort of specific examples and each example, each sub rule may be a bit complex in terms of its interpretation, but speaking generally, what you want to understand is that state matters are dealt with through an application, trust matters through an application, interpretation of an instrument and that could mean, I’ll give you an example … let’s say in an employment law context that there is an employment contract both parties agree that this is the contract, both parties agree that the language of the contract is what they are agreeing to. So, everything about the contract this is not in dispute they’re agreeable, but the issue is where parties differ is how they interpret a specific clause. One party believes reading the language of that specific clause that the interpretation is ‘A.’ The other party believes that, “no” reading the same language the interpretation is ‘B.’ So, who has the authority to decide which interpretation is correct? It’s the court. So, what you can do is bring an application to the court and say we don’t have a dispute about the contract or what’s stated in the contract, but we have a dispute about its interpretation so, we’re bringing an application and you the court, you the judge, can tell us which interpretation you agree with and then we will accept that position and you’re bound by that position. So, that could be done by way of an application and the larger part that you want to keep in mind is that an application facts are mostly undisputed, even if they are disputed in the state matters, there are a lot of facts disputed but it’s you know, it’s how the process proceeds how this application proceeds and the court system decides how those disputed facts are dealt with. And then as I said if the, if a specific statute allows you to bring an application then you should bring an application.

So the question what arises in your mind why the difference, why do we have to have an application, and why do we have an action? Why can’t we have one thing and if there is no facts in dispute, then the judge just basically interprets whatever needs to be interpreted, and if there are facts in dispute then you know, we go in a different direction.

And the answer, I mean there may be a number of answers, but the one that I can provide is that the manner in which a court action is dealt with is different than the manner in which an application is dealt with. Why? Because in an action, ‘A’ there are facts in dispute so the judge has to do two things. One the judge has to look at all the evidence, listen to all the witnesses, and then decide which version of the facts the judge believes the judge agrees with. So, there’s a dispute between the facts and the judge has to choose one of the many options in terms of the facts. And once that determination is made, then the judge applies the law on those set of facts and then provides his or her judgment.

So, an action goes through a number of steps and we have a separate lecture, which summarizes what are the steps in an action. But there’s a discovery process, there’s a mediation process, then the parties have to go to trial. If there are witnesses they have to provide oral testimony called Viva voce evidence and then there’s examination, cross-examination and all of that and then the evidence, the documentary evidence is presented. So, the whole trial takes place, which is sort of a lengthy process for a judge to be able to decide which party is right and which party is wrong.

An application, on the other hand, is more of an expedited process. In an application there’s no trial, so, you file your application record and you file your factum. Factum is your legal argument that you present to the court in which you apply the law on the specific facts of your case. So, an application is done, in an application there is no trial, so, essentially when the application is heard it’s basically your lawyer and the other side’s lawyer that are presenting their case in front of a judge and that presentation is already provided in a written form because the application record has all that information and the factum has all that information. So, in a perfect application, hearing the lawyers may not even have to speak much if the judge says that he or she has read the application material, application record, and factum and so, has, you know, specific issues that he wants the counsel, the lawyers to address.

So application is a faster process, in an application if there is evidence that’s done through fact, through an affidavit. An affidavit a simply a sworn statement by an affiant, by a person, basically saying that, basically setting out his or her personal knowledge of certain facts that are in dispute. So, if you have to examine a party on the affidavit you still have that option to cross-examine someone on the affidavit they have provided, but they’re still not providing testimony at trial.

So, application is generally a faster process it’s quicker and it’s cost effective. So this is, you know, one of the fundamental reasons why there is a difference between an action and an application.

So, in conclusion, what you want to take away from this is that in most every day situation you will be commencing a lawsuit by way of an action. Because the situations in which you commence an application are very limited and you have already gotten a sense that these are mostly estate matters, these are matters some matters, that are relating to land and then matters that are, you know, specified in a statute. But most of the time, you will be commencing an action. So, as long as you are alert to the difference between an application and an action at the outset of your commencement of your proceeding you will decide at that time, but in most of the times you will be commencing a court action.

All kinds of commercial issues that you may deal with they will be part and parcel of an action. Family law disputes are done through an action. Recovery of money if you have paid money to someone and you need that recovered that is usually done by way of an action. If you have a dispute with your contractor, your plumber, or your technician; all these kind of disputes are dealt through an action and not an application. So, in most every day situations you will be commencing an action.

Hopefully that gives you a good understanding of the difference between an application and an action and if you have any specific questions on these topics by all means contact us, write us comments on the YouTube channel, or send us an email and we’ll be happy to include more information in the future lectures thank you for watching.

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Welcome everyone this is Amer Mushtaq from You Counsel. Today, we’ll talk about an Ex Parte Motion in Ontario Civil Courts. If you have reviewed our previous lecture on motions, we talked about the basic concept of a motion in a civil court and what are some of the types of the motion and one of those types is an Ex Parte Motion. So, today we’ll talk about an Ex Parte Motion, we’ll explain what that motion is, what are some of the circumstances when you bring that motion, and then we’ll talk about the process of how you go about bringing an Ex Parte Motion in a civil court.

We’ll begin as usual with the disclaimer that this course is not legal advice so if you have any specific questions you must contact a lawyer.

What is an Ex Parte Motion? We’ll give you some examples, we’ll talk about the process, we’ll talk about who do you bring an Ex Parte Motion before, what are some of the methods of hearing, what documents do you provide, and what are the relevant rules with respect to an Ex Parte Motion.

So what is an Ex Parte Motion? An Ex Parte Motion is a motion for the benefit of one side without other being present, ex parte. So, there’s only one party that is present before the court and seeking something and the other side is not there the other side has no knowledge that there is a motion the other side has no notice … that’s an Ex Parte Motion.

For an Ex Parte Motion, you must understand the basic judicial principle of judicial fairness, which is that each side, each party must have an opportunity to present its case to present its argument to the court. That’s fundamental that’s called due process, that’s called, the fundamental fairness, procedural fairness, whatever terms you may want to use. But the basic, you know, rule of judicial fairness is that each side must have an opportunity to present its side of the story before the court, a judge, or a master can make its decision.

But an Ex Parte you are not, both parties are not present. So what you want to keep in mind is that you must have sufficient circumstances that justify, sufficient evidence, that justify why the other side need not to be present, why the other side should not present its case. And those are some, you know, there are some specific limited circumstances; I will give you some examples here.

Default Judgment is one, Default Judgment, as you may know, is a situation where you commenced a court action the defendant or the defendants did not participate in that court action, they failed or they refused to file their defense, which indicated that they are not dealing with the court process and that gives you the opportunity to note the defendant in default. That means that, you know, that’s a motion that you bring basically having the court to state that the defendant will no longer be taking any steps in this and that court action so they’re not entitled to any notices, any orders, or anything because they have failed or refused to participate in the process. So, after you have noted a defendant in default, you can actually go and get a default judgment. And for default judgment because the defendant is not participating in the process you can bring an Ex Parte Motion for default judgment and basically plead your case in the absence of the other side.

Other example is emergency situations where you believe that there could be irreparable harm, and these emergency situations could be a variety of circumstances. These could be the harm that you may expect, the future harm that you’re expecting maybe financial, it may be personal any kind of harm, but you believe that if you don’t get this order this specific order immediately and without even bringing the other party to argue their case, the harm will happen. And that’s when you may show up in a court and say that I need this order. Usually it’s a temporary order until the proper litigation takes place, but I want this order immediately, without the other side being present because my circumstances are such that there’s no time to put the other side on notice, there’s no time to delay and I need this.

This can, you know, happen in family law situations in child custody situations where you believe that the child may have a potential harm and then you have significant evidence that can actually support. It’s not just based on emotional, you know, just your feelings or emotional circumstances, or the nature of dispute which maybe bitter with the other side. But it has to be that the potential harm has to be real, there should be some significant evidence that you can produce before the court to explain why the emergency is real and why the potential harm is real and therefore the notice requirement it can be can be dispensed with.

Certificate of Pending Litigation, in most cases, it will be on notice but I have actually dealt with some cases where our circumstances did not require serving a notice. One example, was that the other side you know had sold the – this was about a property – and the other side had sold the property like forty years ago and the matter was forty years old. The defendant could not be located their lawyers could not be located there was no circumstances in which the other side could have been harmed by the vacation of Certificate of Pending Litigation and so, you know, we brought an Ex Parte Motion before a master to have the certificate C.P.L. vacated. So, there could be other circumstances, as long as you understand that the emergency has to be when objectively reviewed has to be real, the potential of harm has to be real not just based upon your subjective view of things, and there should be some evidence that that a judge can or a master can accept and in that circumstances your Ex Parte Motion may be heard and you may get the order.

So what you want to keep in mind is that if there is any reason why that case, why that motion should be on notice the presiding judge or a presiding master will not hear that and will send you back and will ask you to serve the motion materials on the other side and do it properly.

Again the Ex Parte Motion could be before a registrar, a master, or a judge. Mostly it either before a master or a judge and so you need to understand the nature of your motion. Can it be brought before a master? Can be brought before a judge? We have talked about this in other lectures, please review that. And the motion could be either in writing or orally. Most of the time, Ex Parte Motion are orally presented, but they could be circumstances where you can simply do that in writing.

So, you if you are in a situation where you believe that an Ex Parte Motion is justified, step number one, you prepare a motion material and make three copies of that. You prepare the draft order. The draft order is the order that you want the court to grant you. So, you basically write down the order saying that the judge or the master is going to order, you know, such and such remedy and you prepare it, hoping that once you present it to the master they simply review the order if they are satisfied they sign it and date it. So, you prepare the draft order for the master of the judge. Then you go and visit 393 University Avenue, this is in Toronto, go on the 10th floor, you line up, you get a ticket, you go on that counter of the motions counter along with the court fee … and for a motion you need to you need to know what the court fees are and you can go online Google it type in, “court fee” and you will find this regulation it’s call Ontario Regulation 293 Sub 92, Superior Court of Justice and Court of Appeal fees. So all of the fees that you have to pay are listed here and you can you can look down, I know that a motion fee is $160.

So, a notice of motion served on another party, a notice of motion without notice, a notice a motion for a consent order, so on and so forth is $160. So, you go with $160, you pay that money, and what’s going to happen is the motions registrar or the motions clerk what he will do is he will pull out your file in the courts system, he will accept the money, he will stamp on your motion material at the back, so, you know that your motion has been accepted, and now you have to go and argue it before a master or a judge. So that’s the process to sort of getting the motions scheduled. So, you take three copies, you only need two, but it’s good to take three copies of your motion material, the draft order, and then you attend the court with the fee.

If it’s a motion that requires emergency order then it will be dealt with immediately, each court in Ontario has some process either you can appear before a judge or a master on an immediate bases and get the order because of the nature of emergency, otherwise with respect to masters motions, Ex Parte Motions in Toronto, you can those are usually heard and Tuesdays and Thursdays. So if it’s not an urgent motion, but it’s an Ex Parte Motion you can either show up on Tuesday morning or Monday morning but you would know that some master is sitting on Tuesdays or Thursdays to review Ex Parte Motions and you can have those heard there.

For a judge, you will have to get a date with the motions clerk, and you will ask him or her, what are the dates available and then you pick one date and you already have provided the court fee, so, you get that schedule and then you come on that date and appear before a judge to have your case heard.

I talked about motion materials. Motion materials are essentially the notice of motion, there’s a form for it, Rules of Civil Procedure form, that you can download from online, and then you have to provide supporting evidence. Obviously, there are, you must present evidence why you should be given the remedy that you’re asking? In some cases, you may need a factum, in majority of the Ex Parte Motions you may not need factum as long as you have a notice of motion and supporting evidence that may be sufficient. So, those two or three documents comprise your motion record, which is why I indicated that you take three copies of those.

Two legislations that are important that relate to a motion are the Courts of Justice Act and Rules of Civil Procedure both are available online, you can review those. And with respect to the motions you want to make sure that you review Rule 37, which covers most of the motions. Rule 76 is simplified rules process if your case is $100,000 or less then Rule 76 will apply, which has its own rules about a motion, so, you want to review that. And if your motion is in a small claims court, then you want to review Small Claims Court Rules.

So, the main thing that you want to understand is that you must have a valid reason to bring an Ex Parte Motion and then understand the steps, how do you actually go about bringing that motion, how much motion records do you need to prepare, and how do you physically go to the court office and get it scheduled and have your motion heard. And if you’re unclear about whether you are entitled to bring an Ex Parte Motion or not, or any other issues with respect to your motion it’s a good idea to go talk to a lawyer just to make sure that you are clear about what you’re doing and that you have valid legal reasons to proceed that.

Hopefully this gives you a basic understanding of an Ex Parte Motion and we’ll in the future we’ll talk about motions and consent and motions or notice and we’ll try to explain to you a bit more about motions in a civil court. Thanks for watching.

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Welcome everyone, this is Amer Mushtaq from You Counsel.

If you have a legal dispute, you’re not a lawyer, and you do your own legal analysis, legal research and come to a conclusion about your case… whether your case has merits or not… and when the same assessment, same analysis is done by a lawyer both of you may come to fundamentally different assessments of the case. You may believe that you have a very strong case and the lawyer may come back and say to you, that you actually no have case. How does that, if you have done all the research, you’re a smart person… you’ve done, you know, all the things that a smart person can do to analyze your case and you have come back with a conclusion or assessment of your case which is fundamentally different than the lawyer’s… how do you explain that? Most of the time, the answer that is provided is that you are actually not thinking like a lawyer and that’s why you have come from a different conclusion.

So what is this mysterious thing that’s called, “thinking like a lawyer”… is this something that only lawyers can do? Is this something that can be replicated by people who are not lawyers? Is this something that you must spend hundreds of thousands of dollars in tuition fees for law schools or practice as a a lawyer and only then you can achieve it or is this something that you can achieve without actually going to law school and learn how to think like a lawyer. So, this lecture grapples with this question of what is meant by, “thinking like a lawyer” and the answer that I provide is that thinking like a lawyer is pretty straightforward. There are bunch of steps that you need to follow and you will be able to think like a lawyer, you don’t need to be a lawyer to think like a lawyer. You don’t need to spend hundreds of thousands of dollars and then learn the art of thinking like a lawyer. It can be done and in this lecture, I will try to simplify the process that you need to follow and replicate the same results that a lawyer may provide.

So, we begin with a disclaimer, that this course is not legal advice. So, if you have any specific questions, you should contact a lawyer or Law Society of Upper Canada.

So, before we get to what does thinking like a lawyer mean, let’s start with the question of, “what is law”… and in this lecture, we’ll talk about some of the philosophical underpinnings of certain aspects of legal system, but remember that, you know, discussion will be very limited, will be very straightforward and in the end, all of this is going to serve one purpose- that is, how do you actually think like a lawyer… without actually becoming a lawyer or going to law school, right? So, we’ll answer that question, but we’ll get to that in maybe in a bit of a roundabout way because I think there are certain concepts that are important for you to understand. So, what is law, that’s a basic concept that you may have an understanding of- or not- so let’s discuss that.

Basically the law is a set of do’s and don’ts… things that you can do and things that you are not allowed to do. The set of do’s and don’ts that are applied uniformly to a set of people, right? The things that you can do or you’re not allowed to do… and then it becomes a law when it’s applied uniformly- or at least we believe that it’s applied uniformly- that’s sort of the core philosophy of it… over a set of people… and a set of people could be part of a municipality, part of a city, part of a province, or a country and so, the laws, if they’re applied to a set of people uniformly, the do’s and don’ts… they are called laws… that’s that’s what they are… and so, a common example could be, you know, you cannot park on the main streets downtown Toronto in rush hours. That’s the law. Where are you allowed to park? Where are you not allowed park? You are not allowed to move your vehicle, you know, one hundred kilometers an hour on a highway.

So, those are the do’s and don’ts… and the life of a human kind would have been simple if every imaginable action or inaction can be conceived… if anything and everything that a human being can do when the person is alive or not alive, if that can be conceived… we can easily categorize them into a set of do’s and don’ts. You cannot eat your baby, yes, you can eat your baby, you know. Thou cannot steal from your neighbor’s farm. Every imaginable step can be categorized but because there are so many things that human beings can and cannot do… it is impossible to conceive every action or inaction at least impossible in today’s day and age… and so, because it cannot be conceived, we cannot easily categorize them in do’s and don’ts and then make laws about it, right? So, that’s one challenge that do’s and don’ts are not finite… and so we cannot write them down and categorize them.

So, that’s one challenge with the law… and the other challenge with the law, generally, is about information, right? So, when the law says that you cannot kill an animal, you know, is it OK to kill an animal when the purpose is self preservation… when you are consuming the animal for food. Is it OK to kill the animal for the purposes of sports, right? So, things like that and then it comes to the interpretation of what is killing things, you know? If there was an accident and some animals died because of something you didn’t intend to do… does that matter… and so, the interpretation comes into play and the law gets complex… but at the bottom of it, you know, what you want to understand is the law is a set of do’s and don’ts. So, if you understand that, that’s the basic concept of the law, for the purposes of our today’s lecture. Now, the next question comes to mind is… who gets to decide what the law is? Can you and I decide what the law is, who decides that and it depends… if you believe in a different religion and you follow the laws of that religion. Then, it’s the laws decided by God or Gods, if you believe in that… could be decided by prophets and you may follow their laws. Could be decided by a king or a queen of a certain country and they may decide with the laws should be. It could be decided by people in a democratic society, in a democratic society, the fundamental assumption is- and I’m not necessarily a subscriber of that assumption- but, let’s say, a fundamental belief is that in a democratic society the laws are created by the people and the process is that they hire certain members who represent them, the people in legislator, and those individuals get to decide what the law is and those laws reflect the will, the social, the moral fabric of the society, in general. That’s at least what the belief is in a democratic society and some people may argue that the judge gets to decide what the law is or law should be and there may be some value to it, some truth to it, maybe not… but all of these people and many more can decide what the law is.

Now, where does the law get it’s underlying authority, you know? Whether it’s a God, whether it’s the King, whether it’s the people, whether it’s the judge. Where are they getting that authority to decide what the law is? Why can’t you and I decide what the law is or what the law should be… and so, one thing that you want to understand about the law is the fundamental authority of the law comes from its power of coercion… and what do I mean by that? Very simply, if you do not abide by the law, there will be consequences, right? So, you may get penalties imposed, they could be monetary, could be physical but if you refuse to abide by the law there are consequences. So, the law gets its legitimacy, its authority, from the power of coercion that it has… or if you want to put it more crudely, the law has the power of violence over its subjects, right? So, if you have that power of violence over a certain set of people, you can decide what the law is. So, the idea is not to suggest, in any way, that laws authority should be undermined by you, but I think it’s important for you to understand the basics of where the law is coming from and how does the law get to have the authority that it exercises over people.

Now, we said that the law is a set of do’s and don’ts, but what are those do’s and don’ts? Where do they come from.. and at its core, the do’s and don’ts are someone’s perspective. It could be God’s perspective in the scripture, God comes out with the 10 Commandments, “thou shall not kill… thou shall not steal”. It’s apparently God’s perspective, or the Prophet’s perspective, could be the King’s perspective, could be people’s perspective, you know. Could be the judge’s perspective. So, when a member of city council sit down and someone, one member, may come up with an idea that there is too much traffic during the rush hours and it’s hard for the cars to maneuver and therefore, vehicles should not be allowed to park during the rush hour. That is fundamentally a perspective, right.. and then it gets its legitimacy in a democratic society because other people subscribe to that practice and then they decided in the law and then it gets its all the power and legitimacy… but underneath it, what’s most important for you to understand, is that law is someone’s perspective. So law is nothing more than a perspective… and I want to belabour this point a bit because I want you to understand this concept, I want you to digest it, I want you to believe in it because that will help you in thinking like a lawyer when we come down to that part of the lecture.

So, law is nothing but a perspective… and so, why I want to belabor this point is because when you think about the word law, you know? What comes to our mind with respect the law, is the law is absolute. Law is magnanimous. Law is powerful. Law is wrathful. Law is unchanging, right? So, those just law is a fixed concept. So, these are the kind of things that that may come to your mind when you think about the law, but when you think about perspective… you say something has a perspective what comes to your mind, what does it denote? Perspectives could be different, we know that. Perspectives could change and evolve over time, you know that. Perspectives could be different, in different circumstances, different locations, different cultures, different religions etc. right? Perspectives could be many. So, there are a number of things that indicate that perspective does not seem to have that level of power that the word, “law”, you know, denotes… and why it’s important for you to understand because if you understand that law is nothing but a perspective, you will not be ashamed of your perspective. You will not shy away from arguing your perspective, whether that is agreed to by others or not… but at least it is your perspective and you have a right to persuade others, to the judge, that your perspective is the right perspective. So, it’s just a perspective, it’s nothing more than that.

Let me give you another example, you know, hopefully it’s been interesting. Remember the movie it’s called, “First Night” by Richard Gere and in that movie, Richard Gere played the part of the person, if I recall that, correctly… and in that movie, there’s a scene in the beginning where he’s much a fierce looking man, they’re riding on horses, and they come down and lose and plunder a village and set it on fire and there’es women and children who are running around, crying and screaming and whatnot… and then, you know, towards the end of that scene, this man riding on this stallion… fierce looking guy, with his sword drawn and he gets to that place everybody is quiet and silent and he stands, you know, on his horse… sitting on his horse and he says this, “last night men from this village killed three of my people. In reprisal, I have destroyed your village. The border lands have been lawless long enough. Know now that I am the law.”… and so this guy, comes up, and he says, “know now that I am the law”. Imagine if he says all of these words and in the end he says, “know now that I have a perspective” and if he says that, the villagers who were so scared of him will probably smile, smirk, “meh”. You know, “get out of here” kind of concept, right… because the word law has that power that the perspective does not care and yes, we understand that perspective gets that power through the power of authority that is given to it and also the power of violence that it has. So, notice this, when this guy comes in, he first demonstrates to the people that he indeed has the power of violence over all of these villagers. By doing what? By destroying their village. So, he demonstrates, he establishes the power of violence first and then what follows is his claim that he is the law, right? So, the power of violence goes hand in hand with the authority of the law. So, but when he says that, “I am the law”, he doesn’t say, “I have a perspective”, you know, it’s important for you to understand that it it’s just a perspective. Why? Because you have a perspective which may not be the law but it’s a perspective that you espouse and you have a right to persuade others that that perspective should be preferred over other perspectives… and when it comes to a legal dispute. When you realize that law is just a perspective, you will realize that a legal dispute is nothing more than a battle of perspectives. There are many perspectives that may come to a court room and those perspectives fight and then one perspective wins. So, that’s the end. So, there’s nothing more to a legal dispute than a battle of different perspectives.

OK, so let’s explain that by way of an example, what do we mean by battle of perspectives and how does that actually unfold in a courtroom right.. and what can be a better example than a man walks into a bar… and in this situation, the man who walks into a bar is a black man. He lives in Toronto, in 2017, and imagine that this black man on a weekend, on a Saturday evening, he is sitting at his home, he has nothing to do, he turns on T.V., he surfs the Netflix for any shows, doesn’t find anything appealing. He’s having a drink, he doesn’t know what to do with his evening, and the idea comes to his mind, that maybe he wants to travel in the past. Go down to his basement, get in that time machine that he has, and go and have a drink in the past somewhere in the US. So, he goes down to his basement, takes off the covers of his time machine, dusts it off, sits down and puts the timer to the year 1964, and the place that he chooses is Birmingham, Alabama. He wants to go to Birmingham, Alabama in 1964 and have a drink. So, he presses the button and instantly he’s transported to 1964, Birmingham, Alabama. He finds himself by the interstate and he looks at the bar and then he walks into the bar… and he goes to that person and he says to the bartender, “can I have a pint of beer and some wings and something else to eat- fries”.. and he realizes instantly that there’s a deafening silence and he notices that everyone sitting in that restaurant is staring at him. All eyes are focused on him. No one is moving, people are looking at him in amazement and bewilderment and disgust and anger, including the bartender… and the bartender looks at him and says, “we do not serve black people in this restaurant or in the bar, get out of my establishment”… and so, that black person realizes that he doesn’t want to create any trouble there, but he believes since he’s from 2017, that he’s going to go and bring a court action in the courts and then be successful and change the history in 1964. So that, in 2017 people are living in a better world… that’s what his perspective is and what he does is he goes to court.

Now, imagine for the sake of this example, that this is the first time ever in the history that someone has raised this issue before a court. It’s a novel issue, there are no previous cases about a black man asking the court to decide whether it was unfair for a white bar member to deny him beer and food and whatnot. So, this has never been decided, there’s no legislation on it… this is the first time kind of issue. So, reason why we’re doing that is so that you can simplify the example and so you understand this battle of perspectives that I’m trying to explain. Now, because there are no previous cases, there are no legislation, there’s nothing… this never been argued, never been decided. There are at least three perspectives in that court room for the decision making and one is obviously that Black Man’s perspective and he believes that all humankind are equal and everybody is entitled to the service, regardless of the colour of their skin. So, that could be his perspective.

The bar owner may have his own perspective and he will argue that perspective before the judge and then the judge may have his own perspective and it’s going to be a, “his” in 1964, I doubt that there were any female judges or a lot of female judges for that. So, assume that this was a White Male Judge in 1964 and the judge may have a perspective, may not be directly on the issue before him but he may have perspectives that may inform his decision about this specific issue… and so, in this situation, how is this Black Man going to win his case, put yourself in his shoes. What is it that you need to do on a very basic level, to win your case and be successful, right? So, the bottom line is, a Black Man has to pursuade the judge that his perspective should be preferred over the opponent’s perspective, right? Preferred. It doesn’t have to be the right perspective, it doesn’t have to be the judge needs to believe that his perspective is correct. He just needs to prefer between the competition between the perspectives. The Black Man needs to demonstrate or persuade the judge, that his perspective should be preferred over the opponent’s perspective.

So, in order to do that, how does this person go about persuading the judge? What does he need to do. He also needs to make sure that when he is providing the perspective, the perspective should be the one that resonates most with the judge because at the end of the day, it’s the judge who is going to make a decision. So, if he presents a perspective in a way that makes sense to the judge, it’s easy for the Judge to understand, it resonates with his own beliefs… his own understanding of the law. Then, this person has a better chance of winning his case.

Now, the question is if this man needs a lawyer, right? So, imagine we have stripped the judicial system of any legislation at this point. There’s no legislation. There’s no previous cases, nothing. This is a novel issue. Does this person need a lawyer? And I may, if I may sidetrack from here for a bit, and think about how did the legal profession came into existence and I haven’t researched this… so, don’t hold me accountable for it, but if I have to take a guess about how the legal profession came into existence, I can imagine this happened, you know, the legal profession came into existence as follows. Back in 10th century or 9th century or whatever, you are a Farmer… you believe that your neighboring farmer, Peter, stole your cow. You go to the king’s court and you say that Peter stole your cow, you want it back, but you’re not very educated or not educated at all. You’re not good with words, you don’t know how to present your case, you don’t know how to persuade the judge, and so, you find this guy Michael… and you know, that Michael is the judge’s neighbor. They play together, they go fox hunting together, Michael is good with words, you know. So, maybe, I’ll let Michael do the talking for me and persuade the judge… and you know, because he knows him and he’s more persuasive, he may be able to persuade the judge. and so, you know, you go to Michael and say, “Hey Michael, I appreciate your help I’ll give you two chickens if you can please talk on my behalf and persuade the judge” and Michael says, “fine”… and Michael is successful… Michael realizes that you know, “this may be a good idea… why not I do this on a full time basis? And I take people’s cases, whether I win or lose, I still get paid”. It’s a fascinating idea, it’s a win-win for Michael, and so he says, “you know what, I’m going to more on a full time basis”. The judges like the idea too because it’s a familiar face, they understand how Michael presents, Michael understands them, you know? Their kind of on the same you know, same wavelength in terms of the discussions, in terms of the process, so, it makes it convenient for everybody. So, I believe that’s how the legal profession came into existence that someone thought it was a good idea to do this on a full time basis and it evolved from there… and I think someone will do any research on the creation of the profession, I think the answer may not be far from what my assumption is about the creation of the profession.

So, anyway, back to 1964, the question that comes to our mind is that now this person who is going to argue, Black Person, looking to argue his case before a judge- does he need a lawyer? Does this really need a lawyer? So, if I’m in his shoes, the most important thing that I want to figure out, before I go, before the judge is I want to know everything about the judge because that’s the person who’s going to decide my case. I want to know everything, how many slaves does that judge have, how does he treat his slaves, what does his wife think about this case, what is his view of the law, in general. I want to get that understanding.

So, I think the first person I want to hire is a private investigator, who can tell me everything that I need to know about the judge and the other side- the bar owner. So, that I can tweak my perspective appropriately, right? So, that maybe it. I may want to hire a psychologist… I may want to hire a behavioral psychologist who can sit with me in the court, look at the judges face expressions, and give me a sense of what the judge is thinking. That maybe another thing that I can think about. I may want to hire the judge’s friend to be my representative… who may or may not be a lawyer, he may just be a friend but I think that he maybe a persuasive person. So, in all of this, you’re thinking about what kind of support that you need, in order to present your case in a way that resonates with the judge and judge agrees with perspective. That’s all you’re trying to do. So, you’re doing your homework, your due diligence, and in that process, if you need to hire a lawyer- go hire a lawyer… but you don’t need to hire a lawyer just because the person is a lawyer. You are hiring a lawyer here because he could do things for you and present your case for you better and persuade the judge better for you… and if that job can be done by a used car salesperson, then so be it! It doesn’t have to be a lawyer by profession. So, at this point you don’t actually need a lawyer, it’s just a battle of perspectives. If you think that you are a good orator and you convince the judge better- you do it yourself.

So, where does the need for a lawyer, where does the lawyer come in into our legal profession. Here’s how the lawyer fits into all of this, so, when you are thinking about all the perspectives and there’s like an infinite number of perspectives that you can come up with which may support your position… which perspectives are you going to present. You are doing that thinking, and so let me explain to you, where the lawyer fits in by way of an example. So, we’re going to complicate it a little bit. You go to the lawyer and you say, you know, I have this case and can you help me and the lawyer asks you a question, “sir, are you an interstate traveler for commerce”. And you say, “what the hell are you talking about and why does that matter in my case, you know, I just went to the bar and I was refused service” and the lawyer says, “well sir, it does matter because there is legislation called the Civil Rights Act of 1964 that deals with the issue that you’re facing… so, there is a legislation that deals with the very matter, very issue you are raising”. Now a legislation, if you want to understand it, on its very basic level it’s nothing but a perspective. It’s a perspective over an issue that has been codified into law, it’s put in the paper, it’s called legislation. So, there is a legislation the Civil Rights Act of 1964, that you didn’t know about and the lawyer asks you that question. Then the lawyer asks you the question, for example, “where did the incident happen” and you say, “well, the incident happened in Birmingham, Alabama” and the lawyers says, “sir, I’m in New York City… you called me in New York. We cannot commence your court action in New York it has to be done in Birmingham, Alabama. Why? Because there are court procedures”… you didn’t know about court procedure, the lawyer knows about court procedure. So, he says number one, “we have to apply a perspective, a filter of legislation to your perspective”.

So, of all those hundred thousand of perspectives that you may have about why your case is right. Legislation’s perspective is important because that’s what’s made into law and so, let’s find that out. Then the procedural perspective and then lawyer may say that, “oh, this happened in a previous case to someone else” and so what is that called- that’s called a precedent and if you understand how the current judicial system works. A judge is bound by the legislation, a judge is bound by the precedents, the previous cases that have been decided on similar issues, and its bound by the procedure. So, a just judge has these constraints within which he or she is going to decide your case. So, what the lawyer is doing is, the lawyer is saying, “I’m going to review the legislation… you had not thought about it… I’m going to talk about procedure you had not thought about it… you were looking at your case on a very broad level. You being the right, the other side being the wrong… and then the precedent”. A precedent is a very interesting phenomena, right? If you don’t understand, let me mean explain to you what a precedent is. So, a precedent is that if you have a legal issue and it was decided, a similar issue was decided in the past, then the judge who is reviewing your case now, is bound to follow what was decided in the past. It’s a very interesting thing.

So, I mean imagine if you applied to the precedent to science. So, whatever, laws of science were decided or found in the past, you just need to follow them and that’s it, you know. You look towards the past, to decide what is right and what is wrong. Science would never develop. You would never have, you know, the Theory of Relativity or Newton’s Laws of Motion and whatnot because you’re always looking towards the past to decide whether something is correct or not… but in the legal world, precedent is everything. Whatever has been decided in the past, we have this is assumption that it has been decided correctly and we don’t need to do any changes to that as long as it fits into facts that was decided in the past. So, you know, that’s sort of a sinister view of the precedent, it does have some of its advantages. Today is not the time to discuss it, about precedent… but essentially, what the idea of precedent is, if a similar facts case scenario has been decided in the past, the judge needs to simply follow what was decided and decide all future cases on that basis.

So, what does the lawyer do? What did he do in that process? What he did was of, amongst the number of perspectives that you may have brought forward and the lawyer may have added, he simply started filtering their perspectives, right? Filtering the perspectives through the lens of legislation, so, take out the perspective that do not accord with the legislation, take out the perspectives that will not work with the procedure, and take out the perspectives that do not work with the precedent. So, a lawyer’s job is nothing, but filtering perspectives appropriately. So, what kind of filters does the lawyer apply? Legislation was one, procedure was another, and precedent was the third one.

Now, in today’s day and age, you apply the same filters and that’s what thinking like a lawyer is about. So, question number one, if you want to know whether a specific legislation applies to your case, do you really need to go hire a lawyer? Maybe not. If you want to hire a lawyer, fine, you may not need to. All of the legislation that is available in Canada, is available online for free. I refer to CANLII, one of the websites in my lectures all the time. All of those legislations are out there. You can research them, you can Google them, you can find out, you can go to a law library, talk to a reference librarian and get that information. So, if you are willing to do the work, you are able to find what legislation may apply to your case, specific dispute that you may have. Procedures are also available, procedures they are immensely complicated… I do not believe that they are designed for people who can easily understand them… even lawyers at times do not understand what the appropriate procedures are, but they are there. A lot of my lectures are about explaining procedure, at least giving you a sense of, you know, what kind of procedures to worry about, the lectures may not be exhaustive but they give you a sense of what to think about, in terms of the legislation, in terms of the procedure… and so, procedure stuff you can also find it from law libraries… and precedents are also available in law libraries, previous cases that may apply to your fact situation.

So, if you want to apply these perspectives, first of all, you need to understand the most important part is that you’re filtering perspectives, right? So, when the black man, his perspective maybe that, you know, all humankind’s are equal and they should be treated equally. Well is there are legislation that supports that view or goes against that view? He needs to find that out. What is the proper procedure to go before the judge? How do you address the judge, when do you file your complaint, how do you file your complaint? When do you serve it on the other side? These are all parts of the procedure, you can figure that out and then you can figure out if there were any previous cases similar to yours- what did the judge decide in those cases? So, you can find out whether they’re supportive or whether they’re against your case and if they’re against your case, how do you go about differentiating your case from those cases. So, that the judge may not come to the same conclusion. So, you’re applying these precedents, these filters to your case and then finally, when you apply all of the filters these three and other common sense filters… you want to come back a few perspectives, one or two, that will resonate with the judge. So, the whole process of lawyer-ing is about filtering of perspectives and all of if this is not something you need to go to law school. If you take a course in legal research and writing, you can learn this. You can take a course in law school, you can take a course at the law of reference library, you can sign up, and you can learn this. You don’t need three years of law school and a year of articles and whatnot to understand this. As long as you understand that these are the filters that you’re applying to your perspectives about your case.

OK. So, then when you apply those perspectives, what constitutes a winning perspective? Winning perspective is the one that resonates with the judge and when I say resonates with the judge, I don’t mean, you know, that what is the judge’s personal belief and whatnot… it may come across a bit like that but not necessarily because resonates with the judge may mean, that the judge is going to view… let’s say the judge is very focused on the law of contracts and he wants to look up this issue as a contractual issue and so, a better argument before the judge will be a contractual argument… NOT a civil rights argument, right? So, what may resonate with the judge is important, but it’s not to suggest that the judge has any sort of personal views on the basis of which the judge is deciding. Although there are legal scholars who have argued that the judge’s personal views are fundamental in terms of how the cases are decided but not the discussion for today’s lecture. And so, the second part you want to understand is that you want to offer a perspective, generally speaking, that provides the path of least resistance to the judge. Now, remember that judges are not there to make radical decisions. Judicial system is not about rocking the boat here, generally speaking, there are occasions when it does rock a boat a little, although I disagree… but it’s not about rocking the boat, legal scholars have argued, one of the purposes of a traditional system is to maintain the status quo, right? So, when the purpose of judicial system is to maintain the status quo, you don’t want to rock the boat, here. So, you want to offer a perspective, in most cases, that offers the judge the path of the least resistance, without rocking the boat. The judge can get you to where you want to go, the argument resonates, your perspective resonates with the judge and you win. That’s how you sort of streamline, after you’ve done the exercise of filtering your perspectives through legislations and precedent. That’s how you articulate your perspective and hopefully that’s the winning perspective.

Now, I have taken you to 1964 for a specific reason, because there was a case called, “Katzenbach v. McClung” 379 US, 294, 1964. This is a real case, I had fictionalized some of the story, it’s a true story, this is a case that does deal with a black man who goes to a restaurant owned by Mr. McClung and he’s denied service because he’s Black, right? So, brings this action, and he was successful.

So, in this action, Mr. McClung provided this perspective, amongst the perspectives that he argued … this was one of the perspectives, “it is a part of man’s civil rights that he be at liberty to refuse business relations with any person whatsoever whether the refusal rests upon or is the result of whim, caprice, prejudice, or malice”. I think it’s a pretty straightforward argument and I may say, compelling argument, “if I don’t want to serve anybody any food in my restaurant, it’s my right, it’s my liberty to do that” right … and so, that was the perspective, one of the perspectives that Mr. McClung advanced and he was not successful … but watch what was the perspective that was successful on the other side, “and the courts are to set in something like this, discrimination in restaurants posed significant burdens on the interstate flow of food and upon the movement on products, generally. Congress’ solution to this problem was appropriate and within its bounds to regulate interstate commerce [congress solution that the judge’s referring to is the Bill Of Rights Act that I talked about two slides before]”. So, notice this, the court is not the judge is not coming out and saying, “we believe the time has come in 1964 and that all human kids are equal and nobody should be denied service because of a color of their skin or their religion” that’s not what the judge is saying. Judge is saying look to regulate interstate commerce is a legislation that came about and because of interstate commerce – and focus the word commerce, right – interstate commerce, it is important that interstate travellers should not be denied food … and if a Black Man is an interstate traveller he should be allowed to get food from wherever he wants to, right? No rocking the boat here, it’s important. When you want to win your cases – and I’m NOT talking about radical changes that you want to bring to the society – you’re there to win your case before that judge. Bottom line is you want to present a perspective that resonates with the judge, that provides the judge with the path of least resist. An interstate commerce … and if you understand anything about the law in capitalist society, you may understand or may believe that one of the purposes of the law, in a capitalist society is to make sure the commerce is conducted smoothly, right? You bring a case on a commercial list, even now in Toronto, and you will get heard very quickly because note you’re on commercial list right. If you have a sexual harassment case, well, it may follow the procedure of other cases that are in the civil court, right? So, commerce has been considered one of the important functions that a judicial system insures that is protected. So, if your argument, if you believe that that is the argument that somehow you will say, you will present your perspective that somehow enhances the argument about commerce then you may be successful. So, that’s how you want to filter your perspective and present to the judge.

You may come across a judge who is too focused on the law of contracts, right and the judge may believe that, you know, the Fundamental Freedom of Contract Principle which says that, you know, you have a right to enter into a contract with anybody that you want. You know, the Judge may subscribe to that more closely and you may want to come up with a contractual argument. You may want to say to the judge that you know, “through the law of the contract, when someone opens a shop and it’s open for business, that essentially, it’s an offer and when I walk into the shop and present my money that is the acceptance … and the consideration is the food that I get … and so, when I’m complying with a law of contracts, this is the offer, this is the acceptance, there is consideration, I’m entitled … that person is in breach of contract” the judge may like that concept more than the equality argument you may want to raise. So, the important part about all of this is that it’s all about filtering the perspectives in such a way that you can persuade the judge that your perspective is the right one and what we have done in terms of filtering the perspective … I’ve indicated to you that what a lawyer is doing, a lawyer is primarily filtering the perspective through legislation, through precedent, through procedure. Something that you can easily do as long as you understand that that is the exercise that is being done.

So a properly filtered perspective and you consider all of the angles … you consider the angles of the other side, you consider the angles that may come from other parties, you may consider the angle of the judge’s perspective … you consider all angles … not something that you cannot do. You don’t need to be a lawyer to consider all angles, if anything, a philosopher is a better person suited to consider all angles because that’s what they do for a living. It is not an exclusive domain of the lawyer, to do the filtering, and to consider all angles critical thinking is something that anyone – and logical thinking – is something anyone can achieve without spending hundreds of thousands of dollars in law school.

As as long as you know that, the important part of this lecture is for you to understand these are the things, these are the concrete steps that you have to undertake to ensure your assessment of a legal dispute is no different, then an assessment of a lawyer and then you present the argument, you articulate them in a way that your perspective resonates with a judge and then you’re successful.

So, hopefully this lecture gives you a very simple sense, a clear sense, of what is thing called thinking like a lawyer … it is nothing mysterious … it’s nothing complicated and every rational person, every person who has a bit of common sense, an educated person, can do this analysis, can think like a lawyer, you don’t need to spend hundreds of thousands of dollars to get an equal knowledge because it’s a process and you understand the process … you follow the process yourself or you hire someone else to do the process for you whether a lawyer or a reference librarian … it doesn’t matter. You can get to your results that you want and you may be more compelling than any of the people who work in this profession.

So, thank you for watching and I’m happy to hear your comments, questions on this topic. It was a bit of a philosophical discussion, but I hope you understood the concrete steps and I look forward to hearing from you.