Category: Legal Ethics

Systemic Racism, Clients, and the Law Societies

Noel Semple

Slaw.ca, December 2023

Systemic racism is a reality in Canada.  At many junctures in life, a person’s access to opportunities and fair treatment will be affected by their race, skin colour, or indigineity.  The legal profession, in order to do its essential work in our society, must recognize and confront systemic racism.

So far, most formal efforts to do so have focused on racism’s effect on lawyers, law students, and others who work in the law.  (See for example the action plans from the law societies of BC and Ontario, as well as Alberta’s “My Experience” project). These are worthy and very important efforts.  But something might be missing: attention to the effects of systemic racism on actual and would-be clients.

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Justice Denied: Constitutional Remedies for Systemic Delay

Noel Semple

Slaw.ca Access to Justice Column, December 14 2022

Found Online at https://www.slaw.ca/2022/12/14/justice-denied-constitutional-remedies-for-systemic-delay/

Justice Delayed

Suppose you run a small widget-making business in Ontario. You sent crates of widgets worth $100k to a customer, but they refuse to pay. They say there’s something wrong with the widgets, but you know this isn’t true and you can prove it. The good news is that contract law obliges your customer to pay you, and procedural law allows you to seize their assets to satisfy the debt if they don’t. The bad news is that, if you sue and the other side plays hardball, it will probably take at least four or five years to get the matter to trial. By that point, the mounting toll of wasted hours and legal fees may well have led you to abandon your claim, or settle it for pennies on the dollar. If you do persevere, there’s a good chance your defendant will have disappeared or gone bankrupt by the time you get your judgment.

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What Makes a Settlement “Bad”? Harvey Weinstein, Jeremy Diamond, and the Limits of Private Resolutions

Noel Semple

Slaw.ca Legal Civil Procedure Columm, October 18, 2022

Found online at: https://www.slaw.ca/2022/10/18/what-makes-a-settlement-bad-harvey-weinstein-jeremy-diamond-and-the-limits-of-private-resolutions/

“A bad settlement is better than a good trial.” Every year, I pass along this old lawyer saying to students in my Civil Procedure and Legal Ethics classes. The idea is that pushing on to a hearing is expensive, risky, and time-consuming. Even a far-from-ideal settlement might be better overall.

Thus, lawyers must “advise and encourage” clients to settle their disputes so long as there is a “reasonable basis” to do so, according to the Rules of Professional Conduct. Courts and tribunals strongly encourage settlement with mandatory mediation, cost incentives to settle, and judicial pretrials among other mechanisms.

Of course, I hasten to add in class, bad settlements are not always better than the alternative. What can make a settlement bad enough that lawyers, legislators, and judges should refuse to accept it?

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Justice at Tribunals: At the Government’s Whim

Noel Semple

Slaw.ca Access to Justice Column, April 7, 2022

Found online at: https://www.slaw.ca/2022/04/07/justice-in-tribunals-at-the-governments-whim/

Suppose that “JM” is a Canadian person, who believes that their legal rights have been infringed. The problem might have arisen at work, at home, with a corporation, or with some part of the government. JM has tried to resolve the matter privately with the other side, but got nowhere. Next, JM did some online research and perhaps spoke to a lawyer. It turns out there is a public body that’s supposed to make decisions, and uphold rights, in disputes like JM’s.

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Justice in Your Neighbourhood?

Noel Semple

Slaw.ca Access to Justice Column, December 22, 2021

Found online at: http://www.slaw.ca/2021/12/22/justice-in-your-neighbourhood/

I live in Etobicoke, Toronto’s western suburb. We used to have our own courts, right here in the west end. There were family and criminal courts at 40 East Mall, and a Landlord Tenant Board outpost on Dundas Street West. Just over the Humber River, in the original City of Toronto, there was a Small Claims Court on Keele Street (pictured above). People asserting civil rights, or facing criminal charges, could visit a courthouse in their own community.

Nowadays, there isn’t a single physical court or tribunal of any kind in Etobicoke.

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