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Posts Tagged "Mulgrew"

13Sep

Ian Mulgrew: Utah legal reform an example for B.C.

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The Law Society of B.C. could do well to look to Utah for advice on how to address the province’s access-to-justice crisis caused by legal services that are too pricey and the inequity that perpetuates.

The state has embarked on an ambitious, radical restructuring of its legal regulatory system to provide more affordable services and a regulator that protects the public rather than lawyers.

The promising initiative was the product of a recent blue-ribbon working-group report — Narrowing the Access-to-Justice Gap by Re-imagining Regulation — that maintained the delivery of legal services must be dramatically changed “to harness the power of entrepreneurship, capital, and machine learning in the legal arena.”

Gillian Hadfield, the Toronto-based legal guru, was part of the high-powered committee that made the ground-breaking recommendations, considered by those in the field as perhaps the most significant action to address the access gap in years.

The top-flight academic, who was in Vancouver proselytizing earlier this year, has long argued it’s time to end the monopoly enjoyed by lawyers and dismantle regulatory barriers to provide legal help that is affordable and accessible.

The Utah Supreme Court is putting those ideas into practice — shifting the paradigm from a system regulating for lawyers to one regulating to increase access to and affordability of legal services.

Utah has established state-wide pro bono efforts, made forms and filings more easily accessible online, established Licensed Paralegal Practitioners, and piloted an online dispute resolution model for small claims.

B.C. has done the same — although it is dragging its heels on giving paralegals any real scope — and each of these initiatives takes a step toward narrowing the access-to-justice gap.

Still, they have been not anywhere near enough.

Expanding pro bono, improving legal aid and making minor regulatory reforms have been inadequate while technological disruption has exacerbated and widened the gap.

Millions experience problems with domestic violence, veterans’ benefits, disability access, housing conditions, health care, debt collection, and other civil justice issues cannot afford legal services and are not eligible for assistance from the civil legal aid system.

In the 71-page report, the experts proposed a two-tracked remedy — loosen restrictions on how legal firms are financed so lawyers can compete and innovate but also provide room for people other than lawyers to provide legal services.

That means, for instance, getting rid of bans on lawyers fee-sharing with non-lawyers (say accountants) or allowing non-lawyers to own or invest in law firms.

At the moment, mixed business models are prohibited in most jurisdictions hindering lawyers from partnering with entrepreneurs.

Within days of receiving the report at the end of last month, the Utah Supreme Court — which has constitutional responsibility for the administration of justice — unanimously adopted its recommendations.

Other states, such as Arizona, California and Illinois are mulling similar proposals. California in July published proposals to allow fee-sharing, non-lawyer ownership and the greater use of non-lawyers.

Utah, however, is blazing the trail.

Since the turn of the century, the U.K. and North America have been dealing with sadly similar crises in their legal systems — an access-to-justice gap that threatens civil society.

All of the data confirm the legal system isn’t meeting the needs of the middle-class and poor.

The courts are clogged with confused litigants who can’t afford a lawyer and have no access to any other source of legal services because of the regulated monopoly the legal profession enjoys.

In 2007, the U.K. redesigned its regulatory apparatus to increase legal competition in the marketplace, which was already far more liberal than here.

It did not have prohibitions against the unauthorized practice of law and the legal monopoly was restricted to a half-dozen services; advertising restrictions and referral fees were lifted years ago; wills, representation at tribunals and the provision of other low-level legal services were not regulated.

The U.K. was focused on increasing competition, in North America the paramount concern is access to justice.

Medicine has become a team sport: doctors, nurses, radiologic technologists, pharmacists all play. The law should be similar.

In Utah, the new system will be driven by data, monitoring, assessment and analysis “to ensure consumers access to a well-developed, high-quality, innovative, and competitive market for legal sevices.”

The first phase will see the formation of a task force to propose rule changes, establish a “Phase 1 regulator” to oversee a “sandbox” of non-traditional legal services and prepare a final report for the structure of the “Phase 2 regulator.”

In the sandbox, lawyers, law firms and proposed businesses will work with the regulator to pilot new services or new ways of working that might break current rules but appear to be safe.

These trial-and-error experiments with the baby-step process to remove regulatory restrictions and ease the historic persistent inhibition on innovation, hopefully, will lead to the right way to regulate new services.

The state hopes that phase 2 will see “some form of an independent, non-profit regulator with delegated regulatory authority over some or all legal services.”

It will be independent of lawyers but answerable to the Supreme Court.

That will be a real transformation — a regulatory system designed to not maintain the status quo but to provide affordable legal services while protecting the public from unacceptable risk and harm.

Seems like a no-brainer.

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14Aug

Ian Mulgrew: Former B.C. Supreme Court judge’s vibrant voice lives on in lively letters

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Even in the age of email, letters seduce us — the intimacy of a personal voice drawing us in, often revealing as much about the author as the subject, offering a glimpse, a sliver of a life.

And correspondence penned nearly half a century ago by retired B.C. Supreme Court Justice Harry Boyle vibrantly evokes the quotidian aspects of his legal practice and its emotional toll.

Believe it or not, there was a time in this province when lawyers charged only $30 a day — and wore their humanity on their sleeves, sometimes representing an offender on a whim out of compassion:

“This appeal was not authorized by legal aid … Since it was not authorized, I have submitted no account with respect to it apart from adding one to ‘days in court’ on the enclosed form. If you feel this is sneaking around the end, then please deduct $30.”

Now 93, Boyle came from a legal family in Penticton, but he started in journalism in the 1950s at The Whitehorse Star.

He worked in a dilapidated garage under the motto Illegitimus non carborundum, mock Latin for “Don’t let the bastards grind you down.”

A visit to Yukon by federal officials triggered Boyle’s headline: “Better class of drinkers in town.”

He turned to law in 1963.

Vancouver lawyer Don Rosenbloom laughed upon hearing I had found a selection of his former’s partner’s letters published as a booklet in the mid-1990s by the Legal Services Society for young lawyers.


Judge Harry Boyle in his office in 1980 with a poster of W.C. Fields behind him. The photo caption at the time noted: ‘British Columbia provincial court judge Harry Boyle has little in common with W.C. Fields but they share a reputation for having a sense of humour.’

Steve Bosch /

PNG files

When a letterhead envelope from their office arrived at legal aid in the ’70s, Rosenbloom recalled: “They were always disappointed if it contained my bills instead of his — his letters were cherished.”

Boyle wrote them to Frank Maczko, then executive director of legal aid, explaining his fees.

Sometimes it was a brief note: “I am billing for trial since I prepared for trial and was un-notified of the stay until the date for trial. If this is not cricket (or baseball as played by the New York Mets), I expect you will advise me.”

The wry epistles, however, capture Boyle’s personality and, read today, offer us a chance to ask whether the profession has significantly changed.

Some things, like winning a friendly judge, certainly haven’t: “I appeared to fix a date on Dec. 14 and looked up to see one of the pleasantest sights a man could see in court — his honour Judge (Nicholas) Mussallem on the bench.

“Seizing the opportunity, since in my opinion, they had Mr. B. cold, I pleaded him guilty. He was fined $75 despite a lengthy record and given till Feb. 1 to pay and further advised by his hour Judge Mussallem — if he found it difficult to pay by that time to be sure and let him know.”

Services for the mentally ill remains problematic, if less harrowing.

Boyle recounted the case of a client, accused of attacking his wife and baby with a knife, remanded to the old Colony Farm facility for the criminally insane for psychiatric tests.

“I visited him out there,” he wrote, “and after the brief period of my own visit I wondered whether I was crazy. It is an appalling place to send someone whose sanity or insanity is in doubt.”

He managed to have the man released after a terrifying 30 days in bedlam:

“In the meantime, I understand that his friends got together and bought him a one-way ticket to New Zealand, which is his home, and where all concerned hope that relatives will take over and see that he is provided with psychiatric care. I have not yet informed the court that the bird has flown, but plan to do so in the hope that they will agree that his flight is the best practical answer to the problem … I can’t help feeling it is another comment on the system when the best possible solution is a one-way ticket out of town.”

Like the addled, the addicted continue to pose a dilemma.

Boyle worried they also had “a fly-paper-like quality to which all the minor sections of the criminal code seem to adhere.”

A judge had the power back then to order committal for treatment — but there was an abundance of loopholes and no easy moral answer for a defence lawyer like Boyle:

“If a man has been picked up six or eight times ‘dead drunk in the gutter’ who wins if he’s kept out of (treatment)? Providing that the evidence with respect to the circumstances of the subject’s life is accurate and properly produced, then there seems to be a fairly strong argument for drying him out for his own protection.

“On the other hand, perhaps a man has the right to choose his own path to disability and death, but it puts the lawyer in a tough spot if he takes the drinker by the hand and leads him through a legal loophole to self-destruction.”


Provincial court Judge Harry Boyle, in 1979, kept the Crown in mind in his deliberations, evidenced by the portrait of Queen Elizabeth II hanging above him.

Ralph Bower /

PNG files

The system still runs on recidivism: The same people over and over again, an inter-generational revolving door.

Consider Boyle’s relationship with a 13-year-old boy facing incarceration: “Donald, what would keep you out of trouble?”

“Horseback riding,” the adolescent replied.

“That’s the first simple answer I have ever heard to the delinquency question,” Boyle wrote, before paraphrasing Richard III: “I wish I had a horse.”

That boy was soon back in his office, repeatedly.

Barely an adult, he was prosecuted for stabbing a man in a “friendly” drunken Skid Road dispute; Boyle noted Donald helped the victim back to his hotel and provided medical attention.

“Some of the merriment goes out of the situation when you realize that when Donald was a little boy his father used to take him down to the basement and with the family forced to look on, would beat Donald with a 2×4 until he bled as a disciplinary example … He is a likeable, intelligent, young man …”

At 19, Donald was up for strong-arming a store owner.

“He was up to five caps a day in heroin, but somewhere inside there are still strong streaks of decency, honesty and humour. He and his younger brother used to stay in the movies until they closed and then sleep in the lobbies of skid road hotels. When his brother was 12, the brother was taken to Brannan Lake (School for Boys in Nanaimo) and he was subsequently adopted by a good strong family. Since then the brother has become an outstanding athlete and a good student.

“Donald did not get quite the same breaks, and what breaks he did get he couldn’t put to the best use. I get flashes occasionally when I see my own kids sitting at the counsel table and the whole thing really comes home.”

Boyle’s letters are poignant reminders that little has changed in the practise of criminal law, especially the heartache.

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18Jul

Ian Mulgrew: Medicare expert, lawyer spar to end landmark trial

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The B.C. Government’s defence in the landmark three-year-old Medicare constitutional trial in B. C. Supreme Court is ending not with a bang but a testy, two-day courtroom sparring match involving one of its experts.

Dr. Gordon Guyatt gave as good as he got, repulsing a prolonged assault on his objectivity and left the stand Thursday having provided some last-minute fireworks but seemingly little insight on the key issue — wait-lists and the effects of constraints on access to private care in the provincial Medicare Protection Act.

“My perception is that there’s been a fluctuation of concerns with waiting lists and that governments have, to an extent, addressed things,” he said.

“Things can always get better … you have tensions — constant tensions — in every health care system in the world, and problems will never be solved.”

A specialist in internal medicine and, for almost 35 years, a health researcher at McMaster University, the argumentative Guyatt was assailed as more of an ideological warrior than a disinterested expert.

Robert Grant, lawyer for the two clinics and handful of patients behind the legal challenge over barriers to access to private care, portrayed Guyatt as a virulent opponent of the private clinics and Dr. Brian Day, the driving force behind the decade-old litigation.

Noting he had a duty to be impartial, Guyatt bristled at the broadsides aimed at impeaching his credibility.

“Given my, given that commitment, I do not see personally as relevant further pursuit of my opinions about issues beyond the issues that I’ve been asked to comment on in my deposition,” he complained.

“Thank you for that,” Justice John Steeves said. “In the meantime, just answer his questions.”

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Government lawyers vainly tried to halt the brutal cross-examination that battered Guyatt’s neutrality.

A self-described left winger who ran repeatedly as an NDP candidate, Guyatt has been a social activist for 40 years.

In 1979 he co-founded the Ontario-based Medical Reform Group, which disbanded in 2014 and was replaced by the Canadian Doctors for Medicare, which he joined.

He was also a director of the Ontario Health Coalition, an activist network, that along with its sister group the B.C. Health Coalition, is a member of the Canadian Health Coalition.

Doctors for Medicare and the B.C. coalition, under the banner of B.C. Friends of Medicare Society, have intervened in the challenge to support the government case.

Grant accused the groups of wrongly asserting Day seeks “U.S.-style health care for Canada, where people go bankrupt, lose their homes and life savings, or worse, because they can’t afford treatment when they need it.”

The B.C. coalition, he said, incorrectly claimed Day wanted a system where “international private insurance corporations run the show and patients foot the bill.”

Grant said the groups were fearmongering.

“It is an overstatement that this case could bring down single-tier Medicare,” Guyatt agreed, adding he also did not endorse the portrayal of Day and his supporters as “greedy, awful people.”

He maintained he was too busy to keep up with everything the groups did,  and distanced himself from the inflammatory rhetoric.

“The way I would put it is that we were advocates for equitable high-quality health care accessible to people without financial obstacles,” he said.

“So, specifically, as I have said previously, I believe that it is more appropriate to base care on the need — the medical need than on ability to pay — and I would like to work, continue to work, in a system where the patients I treat are treated on the basis of need rather than ability to pay.
”

“I understand,” Grant replied.

“But the point (of the trial) isn’t about what you want to do in your own practice; it’s whether or not increased private health care, and specifically private-pay surgeries, will be permitted or not. And you are opposed to increased private-pay surgeries. Isn’t that right?
”

“Yes,” Guyatt confirmed.

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Grant insisted Guyatt was a vocal opponent of Day within the Canadian Medical Association, seeing him as a “tragic choice” and “a complete disaster” as the organization’s president.

“I don’t recall active involvement in that matter,” Guyatt said, but again added such comments would be “hyperbolic.”

The Ontario specialist attacked the concept of using “benchmarks” to measure surgical waiting times — saying “not much” research has been conducted to establish what is acceptable and he suggested they were undependable tools set by “good old boys sitting around the table.”

But Guyatt has long minimized waiting lists and their ill effects — calling them “a problem that may be much smaller than we imagine” in 2004.

And he acknowledged he was not familiar with the circumstances in B.C.

“Certainly not in detail …. I do not know the details of the extent of waiting lists currently. I am sure that waiting lists remain a problem. … and that they’re not optimal … I do not know well enough to know whether it would be appropriate to characterize them as a serious problem or not.
”

The final witness John Frank, an expert on social determinants of health, took the stand later on July 18 and was to finish July 19 — day 179 of the proceedings.

“When this trial began I thought it would last up to 18 weeks (three times longer than the similar Chaoulli case in Que.),” said Day, founder of the private Cambie Surgery Centre.

“I am happy that — almost 3 years later — the witness phase is over. I am confident that the justice system will eventually grant all Canadians the same rights to protect their health that the Supreme Court of Canada granted to citizens of Que., and that the citizens of every other country in the world enjoy.”

Justice Steeves plans to hear final arguments this fall and begin deliberations in December.

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1Jul

Ian Mulgrew: Legal costs dwarf police misconduct award

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Those old enough will remember the Whalley Strip’s infamous Dell Hotel — a violent, unruly dump the cops frequently attended, but only in pairs, at a minimum.

Once, Michael Kwok Shuen Fong hoped to turn it into a gold mine, but his incompetence, mental health and animosity toward police produced only a tragedy.

The final chapter of his sad Surrey saga may have been written by B.C. Supreme Court Justice Murray Blok in a sympathetic costs decision that ended 13 years of litigation over an altercation with RCMP officers.

Surprisingly, the justice gave Fong twice as much to cover his costs for mounting the legal fight as he did for the minor injuries he suffered.

Blok awarded Fong only $71,000 in damages for the “hard takedown” by the Mounties, which left him dazed and bleeding, and for his brief unlawful arrest.

He had been seeking $1.3 million for near-complete disability!

The trial lasted 18 days and Fong wanted another roughly $170,000 for his costs — $69,000 in tariff items and $100,000 in disbursements.

The B.C. justice ministry, which offered to settle for $25,000, asked Blok to reduce the bill because much of the money spent on experts turned out to be wasted.

None of the evidence from the five medical specialists was accepted, the government argued because Fong misled them, and an economist’s report was disregarded.

Also, Fong claimed police beat him with a baton while repeatedly shouting racist and homophobic slurs — none of which proved true.

“Although I found that Mr. Fong was not a credible witness, I do not conclude he was lying to the court,” Blok explained. “I also do not conclude that Mr. Fong’s failure to tell physicians and experts about other negative events in his life was a deliberate scheme on his part to enhance his personal injury claim or that he displayed ‘a light regard for the truth.’”

Fong attributed all of his subsequent misery to the March 11, 2006 dust-up. However, Blok concluded several setbacks in his life triggered an “existential problem” that “altered his perception of his work identity.”

“These problems would have occurred even if the police incident had not taken place,” Blok decided.

The justice recited the events that dogged Fong after his bloody encounter with police — he lost his hotel management job, developed a crack cocaine habit, squandered $800,000 of his family’s money in a bad investment, and descended into depression.

Now in his 60s, Blok recounted, Fong worked in real estate from 1986 to 1999 before losing that job.

From 1999 to 2002, he managed the Byrd Pub in the Flamingo Hotel, then moved to the Dell.

In July 2005, Fong’s extended family partnered with another man and bought the business. Fong was not a shareholder, but had powers of attorney from his parents and controlled their 49 per cent.

The Dell was rechristened the Oasis Hotel and Fong became general manager.

He accelerated its nose-dive.

Although he disputed it, Fong appeared to bear a grudge against the RCMP because of the way it handled an investigation into $90,000 of missing cash and liquor while he was at the Byrd Pub.

In February 2006, the animosity erupted at a Chinese New Year party for about 20 of his employees and spouses.

Four officers arrived and wanted to know why so many people were still drinking after hours?

A seriously impaired Fong allegedly told them to either “give me a ticket or you f— off out of here. Happy Chinese New Year.”

His friends restrained him.

A month later, several officers arrived at the Oasis to confront a boisterous drunken crowd and demanded to see the hotel’s liquor licence.

During the visit, Fong was manhandled, knocked to the ground, and ended up bruised and bleeding. He was briefly handcuffed.

Several months later, in October, the hotel was shut for health and safety violations because of Fong’s “manifest incompetence.”

He was fired and the hotel sold in late 2006 or early 2007, Blok said.

Fong found a low-level job as a doorman at a Chilliwack hotel, but soon lost it due to his addiction and personal collapse.

In 2009, he was granted WCB benefits for a left shoulder injury and depression, and accepted for a CPP disability pension.

Unfortunately, the following year, Fong squandered $800,000 of his family’s money.

In March 2015, after a court rejected his suit over the investment loss, Fong attempted suicide.

He worked part-time briefly in 2017 and thought about returning to the hospitality industry, but Blok said, “he feels the RCMP would not leave him alone if he did.”

The case was no different than any other personal injury case where some of the injuries or damages claimed have not been proven, Blok maintained.

Although Fong won less than half the amount claimed as costs, the justice said that did not make the award nominal:

“As to the alleged misconduct on the part of (Fong), while he undoubtedly has some personality issues which affected his view of events, he did not proffer his evidence in order to hoodwink the court. His version of events might not have been accepted, but he should not be punished for seeing things as he does.”

The total Fong will receive for costs remains to be determined as the ministry wants them assessed.

“That is another two- to three-day process, and it is a Registrar who will ultimately determine how much the final amount will be,” Fong’s lawyer Paul Kent-Snowsell said.

“It was (and remains) tough slogging given the continued intransigence of the defendants. … I suppose they are trying to show other potential litigants that it will be a fight the whole way — at least, that is my perception.”

The government’s lawyer declined to comment.

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