Posts tagged litigation

UBC obtains Mareva injunction against former employee responsible for ObGyn finances

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The University of British Columbia was granted (CanLII) a Mareva injunction (Wikipedia) by the BC Supreme Court two weeks ago against Wanda Barbara Moscipan, the administrator responsible for finances in the Department of Obstetrics and Gynaecology, based on allegations from the university that she double-paid herself.

A Mareva injunction is a relatively harsh measure agreed to by the courts.  It is discussed at a hearing without the defendant (e.g. Moscipan) being present and before a judgment – that is, before the court has even concluded that the allegations from the plaintiff (e.g. UBC) are correct.  The plaintiff does have substantial hurdles to clear before a court will grant this type of injunction, namely it has to show:

  1. that it has, at least on the surface, a strong case that the allegations are correct; and
  2. that there is a real risk of assets disappearing before a final judgment is ordered (e.g. stolen money will be laundered), which will make it impossible or nearly impossible for the plaintiff ever getting back what was taken.

The law tries to balance the rights of both the plaintiff and the defendant to ensure that a fair process is followed and reasonable steps are taken to protect all the interests involved.  Educational institutions, like any other sophisticated organizations, need to have a sense of the wrongs that can happen and what tools, like a Mareva injunction, can be used when need be.

Interestingly, a news article describing this decision mischaracterized and overstated the court’s decision by wrongly affirming that Moscipan had been found “guilty”.  It may seem like a silly distinction, but the court never said she was guilty – only that the university had a “strong prima facie case” against her.  Another judgment may follow with a “guilty” verdict, but to my knowledge that hasn’t happened yet, and she could still somehow be cleared of the allegations.  “Guilty” sounds better in the headline, though.

Journalists have incredible time pressures to deal with and, especially younger journalists, are often tossed a complicated court decision and told to report on it without having enough of a legal background and without anyone to turn to with questions.  Also, some of the words in articles and headlines are tweaked by editors later down the line who did not actually read the underlying judgment, so there’s no need to hammer the point home. 

It is a good practice, however, for each journalist who may have to report on a legal event to have a series of lawyers in their rolodex to call before going to print.

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Never get parenting advice from your lawyer

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We rely on experts – doctors, accountants, electricians, plumbers, lawyers, etc. - a great deal for a variety of reasons, though not always for reasons we are ready to admit. 

We rely on them, obviously, because they know how to do something that we don’t, and the risk of us trying to do it anyways and failing miserably is far more concerning than devoting the right resources to get an expert involved. 

But another reason we rely on experts is that we’re just plain freaked out or too riled up by the circumstances we find ourselves in, and we need someone who looks like they know what they’re talking about to calmly identify what needs to be fixed and to provide a plausible solution.

My experience is that the second reason is far more significant than we are prepared to accept.  Occassionally, in those cases, the call to the expert is justified, but quite often the scope of their advice is not.  I don’t mean dentists giving you accounting advice along with a routine cleaning, or an electrician suggesting you invest in shares of Walmart.  The issue here isn’t necessarily with what they say or with them at all.  I am talking about our failure to put their advice in perspective

A dentist can suggest certain dental work be done, but ultimately it is on us to decide how that advice will affect the rest of our priorities (e.g. how much work will I need to miss, and how much will the work cost me?).  A dentist can be really good at answering dental questions, but it doesn’t relieve us of the burden of trying to make the dentist’s answers fit with our other, possibly competing, responsibilities.

This concern applies specifically to legal advice.  Dental work usually only affects the patient, but legal work is almost by definition something that is intended to impact others.  I have been fortunate to see clients who treasure their family above all else, and who scrutinize legal advice to carefully consider how it will affect their family in the short-term and the long-term and whether any other relationships important to them can be harmed by legal action.

But, as parents, our reliance on lawyers in the appropriate circumstances should never involve delegating our responsibilities as parents to people who are not experts in parenting.  Lawyers, even those that may be perfectly wonderful parents themselves, should only be expected to figure out one piece of the puzzle: to identify the legal problem and to provide a plausible solution that puts us, their client, in the best possible legal position, often to the detriment of others. 

From what I understand (and I would love to be proven wrong), parenting never gets any easier, no matter how old your children become.  Whether your child has a legitimate claim against an educational institution, or a dispute arises between family or community members, it is essential to remind yourself that a lawyer can make suggestions, but ultimately you are the one in the captain’s seat.

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What are the odds: the pyramid of legal claims and disputes

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Every day in this province millions of lawsuits are almost born.  Thousands of almost defendants and plaintiffs wake up and go about their affairs, going to bed that night almost bringing to an end a day that they would never forget as the day a dramatic event in their life occurred. 

Maybe its because my wife and I recently had our second child, but lately I have been thinking of each day as being pregnant with possibilities and outcomes that can dramatically alter or improve our legal landscape.  On July 1, 1985, a series of professors at universities in southern Ontario were scheduled to be retired by reason of having reached 65 years of age.  This date led to the legendary mandatory retirement decision of the Supreme Court of Canada in McKinney v. University of Guelph (CanLII).  On June 29, 1996, the Council of the British Columbia College of Teachers heard an appeal by Trinity Western University to a decision to deny approval of TWU’s teacher education program, which led to a condemnation by the Supreme Court of Canada of the Council’s decision in Trinity Western University v. British Columbia College of Teachers(CanLII).

Human interactions make for fertile grounds for claims and disputes, particularly in the educational context.  It is incredible to consider the number of almost lawsuits in comparison to the number of actual lawsuits.  The almost lawsuits compose the base of the pyramid – the 99%.  They involve claims almostplaintiffs didn’t know were actually claims, claims that were de-prioritized because there were more important things to focus on, and claims that didn’t go anywhere because there just wasn’t the financial support to do anything further.  The Supreme Court of Canada decisions - the 0.0001% - involve those claims that have support (and a fair bit of stubborn-ness) behind each side in the dispute; that raise a critical issue or issues deserving of the attention of the highest court; and that are being handled by (generally) competent lawyers who understand what is necessary to go the distance. 

The gamut in between are those claims that go somewhere but don’t necessary leave a mark in the same way.  These might involve an appeal to a university senate or small claims court, even to an elementary school principal for what ultimately becomes the final word on a matter.  They might include serious lawsuits that simply ended in a compromise or that ran out of steam because of some fundamental change that made continuing not worthwhile or effective.

All of these stem from the same field.  It is important for parties in the educational community to acknowledge the possibilities carried by each day and to prepare accordingly.  They should have a clear sense of their rights and obligations, the nature of their legal relationships, and the areas of potential concern.  As well, it is essential that parties to any dispute understand the implications of their conduct and the long road that may lie ahead – and what it might take to get there – and to always keep in mind their short- and long-term goals.

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Small claims court as a venue for parents of bullied students

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Janet Steffenhagen reported last week on her blog Report Card that parents in Ontario have threatened to bring their individual grievances against school boards before the small claims court.  According to a school board official in Waterloo, the Ontario government should move to stem the tide of parental litigation before the floodgates open.  Reporter Greg Mercer, of  TheRecord.com, quoted John Shewchuk as saying the following:

We want to raise an alarm bell with the government . . . we think they’ve got a little bit of a problem on their hands… You can just see the herd coming over the hill. You’re going to find more people who quite frankly just don’t like the answer they got, so they’re saying ‘fine, I’m going to sue you.’ 

I think we’re going to see a whole lot more of this as people understand that you can go pay your 75 bucks and sue a school board, and you might just hit the jackpot.  There are folks out there who can get dollar signs dancing in their eyes, and think it might be an easy score.

British Columbia’s small claims court is fascinating tool established by the government to provide access to justice for non-lawyers (or those for whom it was impossible or inefficient to hire a lawyer) with relatively small amounts of money at stake in their disputes.  It is extremely user-friendly but has been subject to considerable criticism for being too favourable to debtors.  Also, it gives tremendous discretion to judges – which can be a good or bad thing, depending on your view of the judges. 

Shewchuck’s concern about “floodgates” is a compelling one: it is in nobody’s interests for anyone and everyone with a complaint about a teacher, school or school board to start a lawsuit.  And the legal system should not be exploited as a tactic to overwhelm a public institution.  But this isn’t necessarily a flaw with a culture among parents; it’s a flaw with the small claims court.  If there are trends emerging of plaintiffs starting lawsuits with no real merit, the system should weed them out before they cost the system too much money.  As well, opening the floodgates is generally a bad thing if it is unjustified.  Parents with legitimate grievances should be entitled to demand through the court system, if necessary, that school boards fulfil their obligations. If those obligations are too great, then that is a different matter.

When it comes to bullying, in particular, there is a lot to consider before advancing a lawsuit.  Getting involved in a small claims proceeding may cost a frustrated parent more than $75.  A legal approach to bullying should be sophisticated and well thought out.  Like many things, it may be worth it for parents to visit a lawyer, even briefly, to get basic legal advise before moving ahead if its clear no progress is being made dealing directly with a school or school board.

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Choosing the right forum is half the battle

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Gone are the days when getting justice in your dispute meant you had to face the regular court system.  Now, it seems like everybody is a judge of something and quasi-judicial entities abound.  Organizations have internal panels to handle complaints.  Administrative agencies have specialized tribunals to deal with industry-specific issues.  Courts appreciate the wisdom of a less expensive and uniquely-oriented body having first crack at an issue that can only reach a judge on appeal.

In the educational context, the common first move in court by counsel for institutions is to argue the dispute should not be heard by the court; that is, the court should decline to exercise its jurisdiction in this matter because it is more properly dealt with elsewhere.  Where a dispute has already been heard before a specialized tribunal (e.g. a university senate committee), courts will defer largely to that tribunal’s judgment.

Many of the issues that arise within education law involve an apparent overlap in jurisdiction between several adjudicative bodies.  Several recent judgments show courts declining jurisdiction when they determine the core of a dispute to lie within the jurisdiction of another body:

  • In Jaffer v. York University, a student with Down syndrome alleged a tort and breach of contract by the university for its failure to accommodate him.  The Ontario Superior Court of Justice agreed with counsel of the university that the student was effectively making a human rights claim, which should be heard before the provincial human rights tribunal.
  • In Abrams v. Johnson, a teacher brought a defamation claim against principals and school board administrators.  The Alberta Court of Queen’s Bench agreed with the defendants that the claim involved, in essence, an employment dispute.

In both Jaffer and Abrams the claims by the plaintiffs involved elements that were within the jurisdiction of the courts, but upon scrutiny in each case the courts determined that they were more properly dealt with by other bodies. 

To reduce legal fees and proceed quickly, parties to disputes within the world of education must make sure their claims are brought before the right adjudicator.

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