Quinn Ross is one of eight lawyers at The Ross Firm. Quinn practises in the areas of real estate, corporate/commercial law and estate law. He also has broad experience in criminal, administrative and civil litigation where he has appeared before the Ontario Court of Justice, the Ontario Superior Court of Justice, the Divisional Court of Ontario, the Court of Appeal for Ontario and various administrative tribunals.

***

Robert Allen offered his mom, Joyce, and her friend, Bob Allard, a deal they didn’t want to refuse…a house complete with fire pit in the back yard, for no rent.  

And so, Robert’s mom and her friend Bobby signed an agreement that said they ”. . . would reside on the property and pay all of the costs therein in lieu of rent.”  Sweet.

With that kind of a deal, it’s no wonder Joyce and Bobby decided to throw a July backyard party, complete with a bonfire in the very fire pit the landlord, Robert, had built with his own hands.

It was a grand party.  Everyone was having a ball and Bobby kept an eye on the fire with its fancy ring of partially buried cinder blocks around the perimeter of the fire pit.

One of the guests, Lorne Taylor arrived late.  It was obvious he had been doing some serious partying earlier that day.  He was already drunk.  Not to worry.  Everything went well for at least half an hour after Lorne arrived, that is, until two girls got into a fight. In the confusion, good old Lorne, already three sheets to the wind, tripped over a partially buried cinder block and landed in the still smoldering fire pit.

So, here is one of those stories we all scratch our heads over.

A guy gets drunk, gets hurt, and then sues everyone around. . . in this case, the tenants, Joyce and Bobby…and get this, he even sues the landlord, Robert, who wasn’t even at the party. Are you kidding me?

I kid you not!

The court assessed Lorne Taylor’s damages at $265,000.  So who should pay?

Well, clearly Lorne Taylor should be responsible for some of the damages.  He did, after all, show up at the party already drunk.

The Judge who heard the case assessed 50 per cent of the negligence on Lorne himself.  That meant that there was still $132,500 for someone else to pay.

The court had no problem in finding the tenants, Nancy and Bobby liable.  There were still smoldering embers in the fire pit and those pesky, partially buried cinder blocks were just waiting for someone to trip over.

The Occupiers Liability Act requires occupiers of a property to be responsible for the safety of their guests, sober or otherwise.  There was a potential danger here that someone could trip over the cinder blocks and fall into the still hot fire pit.  Bobby and Joyce, as the tenants, should have made sure that didn’t happen.

But, what about the landlord, Robert?

Surely the landlord, who gave the property rent free so long as his tenants took proper care of the place, wouldn’t be held responsible.  The simple terms of the lease made the tenants responsible for the upkeep of the place.  Robert wasn’t even at the party for heaven’s sake.

The Ontario Court of Appeal had a different view of things.  It concentrated its laser-like focus on the Landlord and Tenant Act.  That Act requires a landlord (Robert in this case) to rent out a property that is safe for human habitation, and those half-buried cinder blocks that Robert installed himself, were clearly unsafe.

The Court went one step further and imposed liability on the landlord under the provisions of the Occupiers Liability Act.  It was the landlord who, after all, rented out a property with the unsafe fire pit.  It would have been a different story if the tenants had built the fire pit, but they didn’t.  Robert, the landlord, created the hazard.

In the end, the tenants, Joyce and Bobby, along with the landlord Robert, split the $132,500.00 damages three ways, or $44,166.67 each.

Lessons to be learned:

1) Know your obligations and rights, whether you are a landlord or a tenant, and particularly if there are special clauses written in the lease.  A good law firm can fully explain the fine print.

2) Landlord and Tenant issues are complex.  In order to minimize damages, or maximize awards, you need a law firm that can present your side of the story convincingly to a judge.

Quinn Ross is one of eight lawyers at The Ross Firm. Quinn practises in the areas of real estate, corporate/commercial law and estate law. He also has broad experience in criminal, administrative and civil litigation where he has appeared before the Ontario Court of Justice, the Ontario Superior Court of Justice, the Divisional Court of Ontario, the Court of Appeal for Ontario and various administrative tribunals.

***

One hundred and eleven rolling acres of farmland had been in the Pyper family since 1868. Their neighbours, the Crausens, by contrast, only bought their eight acres of land in 1995 … new kids on the block.

That wasn’t the only difference between the Crausens and the Pypers.  The Pypers were farming people.  They had a small cow, calf operation.  Their outbuildings included a very old wooden shed that went roofless for the better part of five years, a large tin shed that sat within easy view of the neighbours, as well as some very old, unused farm machinery that lay scattered about the Pyper farm property.

The Crausens were not farmers.  They sold aluminum and glass doors and windows from a building located on their eight acres. Far from keeping old buildings on their property, they actually tore one down to build their very own dream house.

In some ways you might think the neighbours lived in two different worlds.  The Crausens, for example, did not appreciate the noise of workers that echoed from the Pypers tin shed, or the occasional visit of Pyper cattle that strayed through the Pyper fences onto the Crausen property.

Nor were the Crausens enamoured of the sounds and aromas that the Pyper livestock inevitably produced, which wafted onto the Crausen property.  Finally, the Crausens simply did not like to have to look onto the Pyper property.

Despite the differences however, they were good neighbours.  Mr. Crausen did some work for the Pypers and the Crausen’s bought meat from the Pypers.

It is true, there was a stone wall that grandfather Pyper had started to build back in the day, which had been added to over the years by other Pypers.   In reality the fence was a hodgepodge of stone wall, chain link fencing, wire which was strung along a tree line, as well as a portion of rail fencing.

The Crausens suggested to the Pypers that the neighbours together plant a cedar hedge that would act as a barrier to cattle as well as a blind between the two properties.  The Pypers demurred on the grounds that grandfather Pypers old stone wall had sentimental value, which would be lost to the cedars.

The Crausens then offered that they would be responsible for building up the old stone wall.  The Pypers agreed to that suggestion.

All went well . . . at first.  The Crausens added small stones to the wall, but after a time, the Crausens, perhaps enthused by their progress, introduced a machine into the operation that was able to pick up and deliver, not only smallish rocks, but rocks that were boulder size.

As the wall grew, the stones and boulders started to roll down the ever thickening wall onto Pyper property, as well as causing damage to the wire fencing that remained on the Pyper property.  The Pypers never agreed to that!  The friendship was over.

Mrs. Pyper, whose husband had died during the course of the stone fence saga, brought an action claiming that the Crausens had trespassed by allowing the rocks and boulders not only to roll down onto her property but to damage her wire fence as well.  She asked the court to award her damages for the removal of all the boulders Crausen placed on the stone fence, the installation of a new page wire fence, four feet high, along 450 feet, and the removal of all the debris from the site.  The amount Mrs. Pyper asked the court to award her for the trespass and resulting damage to her property was $25,000.

Was Mrs. Pyper entitled to $25,000?  There was no doubt, rocks and boulders placed on the wall by the Crausens, did roll down onto the Pyper property.  There was no doubt that rocks and boulders had damaged the Pyper wire fencing as well.

The Pypers would have to pay someone to clear the fallen rocks and boulders off of their lands and repair 450 feet of fence.  Shouldn’t it be Crausen?

On the other hand, $25,000 to remove some stones and repair a rickety old fence seemed a bit steep for Crausen to pay the Pyper.

The Judge at the trial found that the stones and boulders on the Pyper property was a trespass.  He also found that 170 feet of fencing had to be replaced, not 450 feet.  The judge reminded the parties that the plaintiff, Pyper, was only entitled to an award in an amount that would put them in the same position as if the damage to their hodgepodge fence had never occurred.

In other words, if you’re driving a beat up old Ford before a crash, you don’t get a new BMW to replace it.

As the Judge said:

“…the wire fence was old and irregular.  It represented a patchwork quilt of different materials used to repair the fence over time.  The replacement of this fence with a new fence would amount to betterment, and Crausen is not required under law to provide that.”

The Judge found that the amount required to fix the fence and remove the stones and boulders was $7,000.  He calculated that Crausen should be responsible for $5,000 of that expense.

Lessons to Be Learned:

1)    Emotional and physical boundaries are important.  Make sure you stay on your side of the fence; and make sure others stay on their side too.

2)    There are always two sides to every story.  You need to find a law firm who believes in telling your side … convincingly.

Quinn Ross is one of eight lawyers at The Ross Firm. Quinn practises in the areas of real estate, corporate/commercial law and estate law. He also has broad experience in criminal, administrative and civil litigation where he has appeared before the Ontario Court of Justice, the Ontario Superior Court of Justice, the Divisional Court of Ontario, the Court of Appeal for Ontario and various administrative tribunals.

***

Nancy Burchill and Colin Roberts fell in love and moved in together in 1991.  In 1992, Nancy gave birth to their love child.  By 1995, love had left, along with Nancy and their son.

By 1997, Nancy and Colin had agreed to a court order giving sole custody of the boy to Nancy, with Colin paying $1,250 a month in child support.  That figure was based on Colin’s reported annual income of $90,000 and the Federal Child Support Guidelines that determined the amount payable by Colin as child support.

Shortly after the order was obtained, Nancy and Colin met in a coffee shop and Nancy agreed to accept $737 a month child support for their 5-year-old son instead of $1,250.  One can only hope Colin paid for the coffee.

The years rolled by with Colin continuing to pay $737 for just over 14 years and in December 2010, Colin advised Nancy that he would be terminating child support the following February, 2011, when their son turned 19.  The 19-year-old young man was enrolled in University at the time.

Could Colin stop paying for his son, who was not yet part of the work force, just because he turned 19?  Nancy’s lawyer assured her that Colin still had a legal duty to pay child support.

Once an action was started to force Colin to help pay his fair share, Nancy and her lawyer discovered that Colin had failed to disclose that his income had soared from the original $90,000, to as high as $195,000 a year.

There was also evidence to show that over those 14 years, while Nancy and their son were racking up debt to meet their reasonable expenses, including education expenses, Colin was salting away savings in his RRSPs.

Nancy asked the court to make an order that Colin be ordered to pay the arrears of Guidelines Child Support from the time his income took off in 2006 up to the present.  If the court made that order, it would cost Colin $55,000 in arrears.

Hold on just a second, Colin argued.  Are you implying I’m a deadbeat dad?  Do you remember that cup of coffee back in 1997?  You said you would accept $737 a month for child support and that’s what I have been paying all these 14 years.  A deal’s a deal!

You have to admit, that does make sense.

Colin went on to tell the court he was unaware of any duty to disclose an increase in his income and besides, Nancy could have asked for more money if she had wanted to . . . and she chose not to.

The court took another point of view.  The court said that when you are talking child support, there is an obligation to disclose any material change in your income, and an increase from $90,000 a year to almost $200,000 is definitely material.

Now, if Colin had disclosed his increased income and Nancy had done nothing about it at the time she learned of the increase that would have been a different story.  But Colin, for obvious reasons kept the information to himself.  Colin explained to the court that he had kept mum on the delicate subject of his increased income because . . .  he did not want to “rock the boat.”  Indeed.

The court found that “.  . . it is simply inescapable that [Colin’s son] could not have enjoyed a standard of living commensurate with what he would have enjoyed if [Colin] had been paying support in accordance with his income.  In short, [Colin] ended up with at least $55,000 in his pocket which should have been utilized to support his son.  This sum would have provided many of the benefits which children of more well-to-do parents are fortunate to enjoy;  it would have alleviated the costs of food, clothing and other necessaries which growing children inevitably require; and, laterally, it would have assisted their son in meeting his university expenses.”

Lessons to Be Learned:

1)    With the right lawyer, a parent can run but they can’t hide from their obligations of paying proper child support.

2)    There are always two sides to any story and you need to find a law firm who believes in telling your story . . . convincingly.

Quinn Ross is one of eight lawyers at The Ross Firm. Quinn practises in the areas of real estate, corporate/commercial law and estate law. He also has broad experience in criminal, administrative and civil litigation where he has appeared before the Ontario Court of Justice, the Ontario Superior Court of Justice, the Divisional Court of Ontario, the Court of Appeal for Ontario and various administrative tribunals.

***

Three guys, installation of a new motor into a GMC pick-up truck, and a few beers … what could possibly go wrong?

The three men decided, after having had a few beers, and lunch, they would test the truck out across a farmer’s field … a little off-road exercise, if you will, to see if the new motor would stand up.

The driver, Robert Tremblay, took it nice and slow through the very tall grass in the field.  His speed was only slightly faster than walking speed.

Robert’s friend, Rejean Proulx, who had helped install the motor, sat shot gun in the cab and because the S-10 pick-up is only a two seater, Robert Tremblay’s step-son Shane Landreau, who had also helped install the motor, sat in the truck’s box.

Not to worry about Shane’s comfort; Shane hoisted a cooler up into the box and sat comfortably on the cooler facing forward, while holding onto the vehicle’s roll bar.  It wasn’t the first time Shane had sat in the box of a truck.  He had sat in the box on fishing trips and camping trips without any incident.

The new motor seemed to be working perfectly fine for the first 250 metres, at which point the truck suddenly plunged down into a four- to five-foot trench, which had been caused by a wash out, in an unmarked ditch.

The two men who sat in the cab of the S-10 were thankfully unharmed.  For Shane, who sat in the box, it was a different story.  Shane’s face smashed into the roll bar causing him injuries, including a laceration to his right cheek, a puncture below his lower lip, dislocation of four upper teeth, fractures to a top and bottom molar, injuries to his shins resulting in permanent loss of sensation in his shins, as well as some injury to a finger and big toe.  He also suffered some emotional damage that lingered long after the accident.

Shane sued the driver, his step-father Robert Tremblay as well as the registered owner of the truck (his mother) for damages.

Should Shane be allowed to collect?  When he climbed aboard the box and set himself down on the cooler, he knew the driver had been drinking.  Shane had  “had a few” himself.  He also knew the vehicle was going off road.   He was an adult.  Nobody put a gun to his head and ordered him on board.  It was a pure accident after all.  The driver didn’t do anything on purpose. The grass was so high, you couldn’t see the ditch. Accidents happen!

On the other hand, why shouldn’t the driver, Tremblay, pay?  It was, after all, Tremblay’s negligence that caused the accident.  He was the driver.  When you choose to be the driver and you have passengers in your vehicle, aren’t you responsible for their safety too?  One would think!

In this case, the Judge who heard the trial was pretty clear.  The Judge said that the only way Shane could be held responsible for his own injuries was if he knew that risk to him was virtually certain when he sat himself down on that cooler.  It was clear Shane did not know that risk was virtually certain.  He had travelled safely in the box of a truck on previous camping and fishing trips.

That left the driver, Tremblay.  The Judge found that Tremblay assumed the responsibility for the care and safety of his passengers when he put himself behind the steering wheel of the S-10 pick-up truck.  The Judge found that Tremblay was the sole cause of the accident.  The Judge said;

“But for Tremblay’s negligence, the accident would not have happened and [Shane] would not have struck his head against the roll bar.”

The Judge found that Shane’s pain and suffering was worth $60,000.

The Judge was not through yet. He had a little monetary pain for Shane too.  The Judge found that even though the accident was caused by Tremblay’s negligence, Shane had failed to take reasonable precautions to protect himself from the consequences of the driver’s negligence.  The Judge found that because Shane had made a choice to be unsecured in the back of the truck he had contributed to the negligence and was responsible for 35 per cent of his injuries.  That meant that Shane actually received only $39,000.

Lessons to be learned:

1)  There are always two sides to every story.  You need a good lawyer to tell your side of the story to a judge.

2) Think, Think, Think.  If you are the driver of a motor vehicle, think about the safety of yourself and everyone on board.

3) If you are the passenger, think about your own safety.  So for example, don’t pile into a vehicle if you know the driver has been drinking.  And of course, always fasten your seat belt.  If you don’t, and you are injured in a car accident, the court will hold you partially responsible for any injury you may suffer.

Quinn Ross is one of eight lawyers at The Ross Firm. Quinn practises in the areas of real estate, corporate/commercial law and estate law. He also has broad experience in criminal, administrative and civil litigation where he has appeared before the Ontario Court of Justice, the Ontario Superior Court of Justice, the Divisional Court of Ontario, the Court of Appeal for Ontario and various administrative tribunals.

***

On March 1, 2008, Wanda Olivier, 81, and her husband drove the 237 km from Bruce Mines, Ont. to Sudbury for a very special occasion.  It was a surprise birthday party for Wanda’s younger sister Jackie.  Jackie was turning 80.

Wanda and her husband arrived at Pat and Mario’s Restaurant around 5 p.m.  Wanda was excited that she would see her sister and take part in her birthday celebration.

The evidence at the trial revealed that Wanda was met at the restaurant entrance by her niece Vicky, as well as a hostess at Pat and Mario’s named Danika.  Danika, who trailed behind the group, directed Wanda and the others through the dining room towards a “’back party room’” in which the birthday celebrations were taking place.

As they approached the “’back party room’” Wanda caught sight of her sister who was already seated.  In her excitement, Wanda lost focus on her surroundings and failed to notice the large sign that warned guests: “Please watch your step.” The sign was placed to the right of a step leading up into the back party room.

Both Wanda’s niece and the hostess saw the step.  Both her niece and the hostess warned Wanda to…“watch your step!”

It was of course exactly at that step where Wanda fell…hard. Wanda, as she lay on the restaurant floor was heard to utter, “I wish someone had of told me that there was a step”.

As a result of the fall, the 81-year-old Wanda suffered a broken right shoulder ,which required surgical intervention and ongoing treatment, including physiotherapy.

Wanda sued the restaurant for her injuries, and pain and suffering.  She claimed that under the Occupier’s Liability Act, Pat and Mario’s had a duty:  ”…to see that persons entering on the premises…are reasonably safe…”

What do you think?  Did Pat and Mario’s do everything they could to make the restaurant “reasonably safe”?

Here’s what Pat and Mario’s did:

a)     They had a hostess meet Wanda at the restaurant entrance and guide Wanda and her group to the back party room.

b)    They placed a large sign at the step, clearly in sight, warning patrons to “please watch your step”.

c)    They even had the hostess warn Wanda to “watch your step.”

What else could they have done? Carry her up the step?

Wanda and her lawyer had a different story to tell the court.  They argued that:

a)      What the hostess, Danika, should have done was led the way through the restaurant and up the step rather than give directions from the rear.  Under those circumstances they argued, Wanda would not have fallen.

b)    They also argued that Pat and Mario’s could have done more to draw attention to the step up, both by illuminating it with lights as well as placing reflective tape on the step.

Two good points!

The Judge heard both sides of the story and decided that, for the most part he preferred Wanda’s version.  The Judge said that Wanda ”…was understandably excited about seeing her sister and celebrating her sister’s eightieth birthday with her.”

At the point in time when Wanda saw her sister, she ”…was not as diligent as she should have been nor could have been in watching where she was going and in my view, this lack of diligence contributed to her fall and the resulting damages and injuries that occurred to her.”

The judge assessed Wanda 25 per cent responsible for her fall and injuries.

On the other hand, Pat and Mario’s failed to meet the standard of care set out in the Occupier’s Liability Act.  Their hostess, Danika, should have led the group to the back party room and up the step, and the step itself should have been more clearly lit.

In the end, it cost Pat and Mario’s over $38,000, plus the legal costs.

Lessons To Be Learned:

1)    Everyone has a duty of care to guests and others who are in our house, our business, our cars and boats, practically everywhere, to keep them safe;

2)    Each of us has a duty to take reasonable care that we don’t harm ourselves by our own inattentiveness or reckless behaviour, and then try to blame someone else for injuries that could have been avoided, had we taken care; and

3)    There are always two sides to every story.  Just because someone says your wrong doesn’t make you wrong.  Check out your side of the story with a law firm that will tell your story for you…convincingly.

Quinn Ross is one of eight lawyers at The Ross Firm. Quinn practises in the areas of real estate, corporate/commercial law and estate law. He also has broad experience in criminal, administrative and civil litigation where he has appeared before the Ontario Court of Justice, the Ontario Superior Court of Justice, the Divisional Court of Ontario, the Court of Appeal for Ontario and various administrative tribunals.

***

John Pate was the chief building official for a township north of Peterborough for 10 years, and had a clean employment record.

As a result of an amalgamation in 1998, a new township was created and Pate became a building inspector in the new building department. John Beavan became the new chief building official for the newtownship, and also Pate’s new boss.

It is of note that Beavan, before becoming a building official, had been a police staff sergeant for many years prior to his retirement from the police force.

On March 26, 1999, with instructions from the township’s chief administrative officer, Pate was summarily terminated from his job by his boss Beavan, the former police officer.

At the time, Pate was told he was being fired because of discrepancies uncovered with respect to building permit fees, and the municipality believed that Pate had pocketed the fees for himself.

Then Beavan made a very strange offer to Pate.  If Pate were prepared to walk away from his job and resign without his severance pay or any other money from the municipality, the municipality would not contact the police.

Pate asserted his innocence and refused to quit.  As a result of that decision, the municipality passed on information to the OPP.

Interestingly, the OPP officer who investigated the complaint was reluctant to lay charges because of what he viewed as inadequate evidence.

From the municipality’s point of view, if Pate were convicted of a criminal offence, the municipality would not have to pay him any severance pay or damages for wrongful dismissal.  On the other hand, if he were not guilty, well…that was a whole other kettle of fish and the municipality might have to come up with a whack of money to satisfy Pate’s claim in a civil trial for wrongful dismissal.

The municipality decided in all its wisdom to override the investigating officer, and exerted pressure through those higher in command within the OPP.  Ultimately, criminal charges were laid to be tried in a criminal trial.

In response to that, Pate commenced a civil action against the municipality, claiming damages for wrongful dismissal and malicious prosecution.

The evidence provided to the OPP by the municipality for the criminal trial was that the municipality had searched its records and could not find any records concerning building permits the municipality knew should have been issued by Pate.

The municipality claimed, in short, that Pate had issued building permits to various applicants without opening a file and simply pocketed the fee for himself without leaving a record of the transaction.  That does sound like theft.

At the criminal trial, which lasted four days, the court heard what the municipality and in particular, what the former police staff sergeant Beavan failed to tell the OPP.

John Beavan failed to disclose to the OPP that the municipality had lost a large number of files including building permit files, and it was ‘common knowledge’ to the municipal employees as well as to the chief administrative officer of the municipality that during the relocation of township offices many files and records had been permanently lost.

The former police staff sergeant, Beavan, who fired Pate on behalf of the municipality, also failed to tell the OPP that he had retained Pate’s journal showing his monthly reconciled entries relating to building permit applications and building permit application fees.  At trial, the former police officer, Beavan, could not tell the court what had happened to the journal, nor could he produce it.

Pate was acquitted of all charges in the criminal trial and was free to proceed with his civil action against the municipality, claiming damages for wrongful dismissal from his job, as well as damages for malicious prosecution pursued by the municipality through the criminal court system.

During that civil trial against the municipality, Beavan, the former police staff sergeant acknowledged that he only turned over the statements and evidence to the OPP that building permit files concerning Pate were missing but not that many other files and records were also missing.  He admitted at the trial that he now realized, belatedly, the police may have only relied upon his limited disclosure, notwithstanding that he himself would not have done so had he been the investigating officer.

The judge at the civil trial for wrongful dismissal found it ”…Most troubling…that Mr. Beavan, in most of the statements, went to great length to indicate that he had conducted comprehensive searches of the files and records in building office and cannot locate any evidence of an application for a permit or issued building permit.”

“Everyone employed by the Defendant [Municipality] was well aware that records of this nature had gone missing as a result of the municipal office move.  This was never disclosed [to the police] and should have been disclosed by the Municipality to the investigating officer.”

In the end the court found that ”…there was more than ample evidence to conclude that the Township initiated the criminal proceedings against Mr. Pate without reasonable and probable grounds to believe that he committed thefts and did so maliciously in order to avoid civil liability for the termination of his employment.”

The court awarded John Pate more than $825,000 in compensation, damages and costs, including $550,000 in punitive damages against the defendant The Corporation of the Township of Galway-Cavendish and Harvey.

Tragically, Pate died before the final decision was handed down by the court.

Lessons to be learned:

1. Employment law is very tricky.  You may not know whether you are being fairly treated by your employer and it is always best to obtain an opinion from a law firm that has employment law experience.
2. Employers should always be wary before they let an employee go.  It is far better to obtain legal advice well before an employee is given notice of termination.

Quinn Ross is one of eight lawyers at The Ross Firm. Quinn practises in the areas of real estate, corporate/commercial law and estate law. He also has broad experience in criminal, administrative and civil litigation where he has appeared before the Ontario Court of Justice, the Ontario Superior Court of Justice, the Divisional Court of Ontario, the Court of Appeal for Ontario and various administrative tribunals.

***

Marc Leonard and Andrew Dunn played recreational hockey in a non- contact league. Marc, a defenseman who was neither fast nor aggressive, and who weighed 285 pounds, played for the Rangers.  Andrew, a forward who was not only fast but a top scorer on his team, and who weighed 155 pounds, played for the Wild Hogs.

It was the third period and both Marc and Andrew were chasing after the puck along the boards near the Ranger’s goal. The two players were skating in roughly the same direction when they collided. Neither man intended to body check the other. Neither man injured the other. The contact was incidental to the play, and nothing out of the ordinary in that both players were jockeying for the puck when their bodies made contact. Because it was a non-contact game, it was the practice of the referee to immediately whistle down play to stop possible escalation of the situation.

During the stoppage of play and without any warning or provocation, Andrew suddenly punched Marc right in the mouth with his gloved hand. There was a sudden gush of blood from Marc’s mouth and Marc spat out two of his teeth. Not surprisingly, Marc sued Andrew for assaulting him.

At trial Andrew argued that all the players in the hockey league, including Marc, had signed a waiver before the game. The waiver released anyone in the league, including the arena owners and the other players in the game, from any and all liability for any injuries or death suffered during a game.

In other words, Andrew argued that everyone, including of course Marc, had acknowledged before the game that they could be injured or even killed during play, and that they were prepared to accept that risk.  It was after all, hockey, eh!

So, what do you think? In light of the waiver, did the judge agree with the defendant Andrew that possible injury is a part of the game? Or did he side with Marc and award damages?

The judge decided that when Marc signed the waiver he was assuming the risk that goes along with playing hockey in a non-contact game, and injury during the game was one of the risks.  But, the judge said:

“However fraught with potential for injury, hockey is nevertheless a sport, a contest of skill and strategy to be carried out in a competitive but sportsman like manner.  It is not a bar room brawl.  When a player signs the game sheet agreeing to the terms of the waiver, he is assuming the risks inherent in playing the game; he is not volunteering to be the recipient of a battery” (an unprovoked punch in the mouth).

The judge awarded Marc:

• $7,547.46   in special damages;
• $10,000   in general damages;
• $3,000   in aggravated damages.

Andrew appealed. He lost. The costs of the appeal to Andrew were $7,500.00.

In the end, one punch cost Andrew over $28,000, and the memory of a hockey game he is unlikely to forget.

Lesson to be learned?

In hockey, as in life, assaulting anyone can be a costly decision…it is always better to ‘skate’ away.

If you are charged with assault, or if you are the victim of an assault, the Ross Firm has lawyers who have dealt with both situations successfully.

Quinn Ross is one of eight lawyers at The Ross Firm. Quinn practises in the areas of real estate, corporate/commercial law and estate law. He also has broad experience in criminal, administrative and civil litigation where he has appeared before the Ontario Court of Justice, the Ontario Superior Court of Justice, the Divisional Court of Ontario, the Court of Appeal for Ontario and various administrative tribunals.

***

How To Survive A High Conflict Divorce

(A letter from your Brother)

My Dear Sister,

I was sorry to hear (but not very surprised knowing your husband as I do) that your 14-year marriage had ended with your husband leaving you and the children for another woman.  I understand you and the children remain at your home in Forest Hill and that, at least, must be a comfort to you.

In your letter, which I opened and read only minutes ago, you asked me “What should I do and how should I conduct myself throughout the looming legal proceeding?”

What I am about to write to you is important.  Read it carefully.  If you follow my instructions (and I mean really follow my instructions…not like when we were kids and you mostly ignored me), you will emerge not only successful in your lawsuit but a better, wiser and happier woman!

By the way, you will be interested to know our brother asked me the same question several years ago when his marriage ended, and my advice to him was the same.

Choosing Your Lawyer

In my experience, there are basically three types of lawyer.

The Gun Slinger

The first, and often the most tempting lawyer to retain is the gun slinger.  These lawyers, (often, but not always, men), promise to oppose everything the opposition might request and wring the last penny out of the opposing party’s hide.

These lawyers are generally bullies.  They often attract clients who are more interested in winning at any cost (read as ‘wreaking havoc’) rather than resolving mutual issues fairly through give and take.  They have no problem in attempting to take the children hostage as part of their negotiating strategy.

Generally for this type of lawyer, your case is all about them …about the lawyer, winning.  They are mindless of the emotional and financial havoc their need to win causes not only the opposing party, but their own client as well.  Too often, the only winner in these situations is the lawyer who has taken his client’s money to satisfy the need to vanquish.

Avoid these lawyers like the plague, even if your spouse hires one!

The Ham ‘N’ Egger

The second type of lawyer to consider very carefully, is known in the profession as a ham ‘n’ egger.  These lawyers, often well meaning, take most cases that come their way…real estate, wills, criminal law, landlord and tenant, and of course, family law.

Family law requires a high degree of sophistication especially when you move into the areas of custody, property, business valuations, and pensions, to mention a few.  Remember the old maxim: Jack of all trades, master of none.

The Extrordinator 

There are plenty of extraordinary, highly competent family law lawyers.  They are men and women who know the law; know the difference between being a social worker and being a lawyer; know how to listen to their client; how to advise their client on the likelihood of success on a myriad of issues; how to communicate with their client; and finally, know how to prepare and present your best case, convincingly, to a judge.

Get references and shop around if you have to, not for the best price (although price is always a factor), but for the lawyer of excellence, best suited to you.

So, there you are, my dearest sister.  Easy.  Take control.  Choose the right lawyer.

Do it!

Can you bear me going on?  Because I have two other tips I want to pass on to you that will absolutely lighten the load of what lies before you. 

Isolating Emotion

The first deals with the necessity of separating legitimate emotional issues from the legal issues you and the Extrordinator will tackle.

On that note, I must tell you, I got a great kick out of the list of questions you included in your letter. It is so like you to make lists.  And what a list!

1.      Where did I go wrong?

2.      How could the ingrate do this to me?

3.      How will I manage for money?

4.      What about the kids in all this?

5.      What the hell ever happened to “…for better or for …worse”?

6.      I’m frightened.  I’m angry.  I feel totally rejected.  I hate how I feel.  How do I deal with these feelings?

Do you remember that little gem Mom always fired at us when we were frightened or feeling sorry for ourselves? Pain is inevitable, suffering is optional. ~ M. Kathleen Casey

Here’s the good news ….no, here’s the great news!   The absolute quickest way to get a handle on your emotions and start to heal is to put your feelings into words.  Dare I throw out that old saying “A problem shared, is a problem halved?” You actually started to do this (share your problem) when you wrote me the letter and I’ll bet you felt better the moment you wrote it!  Don’t deny it!

So, find a friend you trust, or join a self-help group, write a journal, or go to a therapist or a counselor. Put your feelings into words.  Notice carefully, I said put your feelings into words… not your legal case. The legal matters you discuss with your lawyer.

I promise you, if you separate them …the emotional issues from the legal matters…two things will follow, just as night follows day. 

The first thing is…you will start to feel better about yourself and your life.  There’s been a ton of research that confirms putting feelings into words makes us feel better…go figure.

The second thing you will notice is that you will make far better decisions in your legal case.  Why?  Simply because you have dealt with your emotions in another forum.  You will have left  the emotional element on the other side of the door when you entered your lawyer’s office.

The results will amaze you.  Your legal decisions will have the clarity of a brain loaded with logic, able to reason free from the emotional responses that get us into so much trouble when we are problem solving.

I said there were two tips, and this is it…the second tip and the last piece of advice I offer you (until the next letter of course.)  I think you will like this one.  It’s right up your alley because it involves making a list or two.

Controlling and Letting Go!

One day everything is going well, or at least you are coping, and the next morning you wake to a lawsuit…an unfamiliar landscape with no map or GPS to guide you.   It can be, as you have discovered, overwhelming.  The terrain is strewn with landmines…property issues, resentment, sorrow, money, children, and old loyalties.  How do we navigate through all that?  How do we find the footpath that leads us back to some form of contentment during the blitz?

I once read of a very interesting experiment that took place in a nursing home, of all places!  The researchers had a theory that people who had a sense of control over their lives were apt to be happier than people who felt their lives were out of their control.  To prove the point, the researchers arranged to give the elderly residents control over simple things in their daily routines, including caring for their own house plants.  The results were amazing.  The overall happiness of the residents shot up and their life expectancy doubled.

What I want to say to you then, is this:  Of course you are feeling pain, grief, fear, anger and resentment.  Who wouldn’t?  But I know you and I know you don’t want to stay there even if it is, in a strange way, a comfortable place to be.  You will want to take back your life!

Piercing The Pain

So, what do you do?  I’m going to suggest one final list and I’m going to call it a “Generic to Do List.” This is a list of things over which you do have control.  For that list I am going to suggest things that come to my mind.  You may want to alter it to suit yourself.  It is, after all, your list.

Here is my Generic To Do List:

Things I Want to Do…(Do not include maiming your spouse).

Things I Should Do…(For ‘Myself’!)

Things I Have To Do…(Ahrrr.  I hate having to do anything).

Before we discuss how we tackle the items on our list, I want to remind you of one very important thing.  You will recall the researchers who created the To Do list for the elderly in the nursing home.  They didn’t ask the residents to devise a health care scheme or to prepare a budget for the nursing home.  They simply asked them to take charge of watering the plants.  A simple step.  A small thing.

The same principle applies to you.  Clearly you can’t, with a wave of your wand, resolve the issues in your family law matter any more than you can create world peace.

But you can hire the right lawyer…a pretty simple task (Things I Have To Do).

You can make an appointment to visit your family doctor to get his advice on how to best take care of yourself during this high stress period…a pretty simple task. (Things I Should Do).

You can go to dinner with a friend, reconnect with your kids by doing something simple but pleasing to both parent and child like a movie, shopping, lunch, or you could join the book club your spouse always loved to ridicule…all simple.  (Things I Want To Do).

If you choose to perform one task a day from Things I Should Do, or one task from Things I Want to Do, or one task from Things I Must Do, and you complete that To Do task, you will find that, step by step, you will gain control of your life and decrease your stress (that is, you will feel happier.)  You will also be able to take more on, as you proceed through the process.  Your small successes will grow into major achievements.

And just by the way, as you regain your old joie de vivre, so too will the people around you, your children, your family, and your friends.

Let me know how you are proceeding.

Your Brother, with Love.

Quinn Ross is one of eight lawyers at The Ross Firm. Quinn practises in the areas of real estate, corporate/commercial law and estate law. He also has broad experience in criminal, administrative and civil litigation where he has appeared before the Ontario Court of Justice, the Ontario Superior Court of Justice, the Divisional Court of Ontario, the Court of Appeal for Ontario and various administrative tribunals.

***

Michael Proulx had an exotic job with a Canadian mining company, Sahelian Goldfield Inc.  If the name of the mining company doesn’t mean anything to you, don’t feel badly . . . they went bankrupt.

Because the company’s mine was located out of Canada, part of Michael’s pay package included return airfare to Burkina Faso (formerly Upper Volta), a landlocked country in West Africa.

In addition, Michael’s employment contract included provision for payment of expenses “. . . required to travel to various destinations in North America, Europe and Africa in furtherance of our business.”

When the company went under, there was no argument that the directors of the company had to reach into their own pockets and come up with the money ($83,527.47) to pay their employees for up to six months’ wages owed to them.  There was no argument because The Ontario Business Corporations Act (OBCA) makes directors of Ontario companies personally liable . . . ouch!

Michael Proulx and a group of other employees of the bankrupt mining company also wanted the directors to reimburse them for their reasonable travel and out-of-pocket expenses incurred while they were on company business.  After all, the employment agreement did say they were to be reimbursed for those expenses as well.  The unpaid expenses to all the employees totalled $60,556.86.

You can imagine how the four directors of the bankrupt company felt.  First they had to shell out $83,527.47 for wages. That they could accept . . . would have to accept . . . because the act required them to pay.  But expenses?  Expenses are not wages; and the company had gone bankrupt . . . at least that’s what the lawyers for the corporate directors argued before the Ontario Court of Appeal.

The Court of Appeal thought differently.  (If you happen to be a director of a corporation, you hate when that happens).

The court referred to the relevant section of OBCA.  That section specifically says that corporate directors are personally responsible “. . . for services performed for the corporation and for vacation pay.  . .” for up to six months.

In the end the four directors were ordered to personally pay $83,527.47 for wages, plus $60,556.86 for unpaid expenses.  Total?  $144,084.33.

Lessons to be learned?

1)    If you become a director of a company, make sure you know what is going on in the company; otherwise you could find yourself liable for some big bucks.

2)    If you are an employee owed money by a corporation that goes belly up, you can go after the directors personally for an amount equal to six months wages.

Quinn Ross is one of eight lawyers at The Ross Firm. Quinn practises in the areas of real estate, corporate/commercial law and estate law. He also has broad experience in criminal, administrative and civil litigation where he has appeared before the Ontario Court of Justice, the Ontario Superior Court of Justice, the Divisional Court of Ontario, the Court of Appeal for Ontario and various administrative tribunals.

***

When Cory Stoneham agreed to give up his rights to see his four-year-old son in exchange for his wife leaving him alone about paying child support, Cory thought that was that. And so did his wife, Katherine.

Lack of involvement in his young son’s life, drugs and a lousy work record had all been involved in the decision. The parties signed an agreement that ultimately found its way into a Final Court Order as part of the couple’s divorce, which denied Cory access with his son and took away his child support payment obligations.

Imagine Katherine’s surprise then, when about a year later Cory went back to court asking for access to his son again, saying his last trip to court was a big mistake; he really did want to be a part of his son’s life.  Cory’s new claim was that he had cleaned up his act, was drug free and because he had a regular job, he could and would pay child support.

Was this a case of too little too late?  There was after all that Final Court Order Cory had consented to.  Nobody had put a gun to Cory’s head.  He had agreed… If he was off the hook for child support then Katherine was rid of him and his sporadic, troublesome access visits.

And then there was the fact that the Court Order was a Final Order.  The question for Justice Gray who heard the case, was a simple one: Doesn’t final mean . . . well . . . final?

According to Justice Gray . . . not necessarily.

The Judge reminded Cory and Katherine that in The Divorce Act, access “… is the child’s right to visit with and be visited by his or her parent…. It is not the parent’s right….

In this case, the child’s rights were not considered at all.  It was all about the parents – a straight economic decision for Mom and Dad…no support payments for Dad and no emotionally draining access problems for Mom.

But, as the Judge wrote:  “The rights of the child cannot be bargained away without any consideration of the child’s best interests.”

Access “…is a fundamental right (of the child) and should only be forfeited in the most extreme and unusual circumstances.  To deny access (by a child) to a parent is a remedy of last resort.”

When it comes to children, it will be the Court and nobody else who has the last word as to what is in the best interests of the child.

The Judge reasoned, since the agreement between Cory and Katherine was no good, then the so-called Final Order, which was based on the invalid agreement, was also no good.  The law is a tricky business. Final does not necessarily mean final!

In the end, Justice Gray allowed some limited supervised access between the child and his father to see how it went and made an Order for Cory to pay the child support he had missed from the past as well as ongoing support.

Lessons to be learned?

1. Parents cannot bargain away their child’s rights to visit the other parent.
2. Nothing is ever final where minor children are concerned.