Several months ago, I heard an interesting story about a man who was an avid sailor.  He put his boat into the the lake one day and headed out for some peaceful moments of sailing.  Several hours later the boat returned to shore, minus the sailor.  His family and friends faced some awful questions.  Had he fallen overboard?  Was he dead?  Was it an accident?  Was it suicide?  Hours went by, then weeks, then months and years.  Around the same time, a man in his seventies sat in an emergency waiting room while doctors attended to his very ill wife.  She had become delirious as a result of a serious, but undetected, infection.  This time it was the doctors who had questions, questions about the kind of treatment and care that this man’s wife would need.  Within a few weeks the questions were from health care providers in an extended care facility about whether and how measures should be taken to resuscitate his wife in case of “emergencies.”

If we were in such situations, we would probably wish that we had the clarity of mind to make good decisions, to know what to do and how to do it.  We would turn to family and friends for support in making those tough decisions.  Imagine the person at the centre of the problem, the person who is least able to help, actually being able to provide us with some of the solutions.  It is possible - if Powers of Attorney and Wills have been made in advance.  Those faced with a crisis would actually have some tools available to them to do the right thing.

In the case of the missing sailor, he had the foresight to prepare a Will and Powers of Attorney for Personal Care and Property long before his decision to go sailing.  Even the elderly woman, now in extended care, had taken the time, during better days, to put her affairs in order with a Will and Powers of Attorney.

Powers of Attorney are meant to be pre-estate documents.  They are intended to give specific authority to a person or persons to manage financial affairs or personal affairs while a person is still alive but incapable or unable to make the decisions themselves.  Generally, there are two kinds of Powers of Attorney.  There is a Power of Attorney for Property, or financial decisions, which authorizes someone to make decisions concerning the financial situation, payment of bills, transfer of property, depositing of pension cheques and so on.  In the case of the missing sailor, the friend, whom he had appointed as his Power of Attorney actually ran his company, paid his employees and looked after the family financially for a number of years.  He eventually sold the company for a profit.  The Personal Care Power of Attorney, on the other hand, empowers someone to make decisions about your personal situation, such as where you will live, who will look after you, what you will eat, what kind of care you will receive and even who will be entitled to see you.  In the case of the elderly woman, her husband was able to not only provide directions to the doctors in emergency, but was also able to obtain the best possible extended care help for his wife, right down to her ongoing nutrition and personal needs.

Many people assume incorrectly that a spouse or a family member will be automatically able to pay bills and take steps on behalf of a person who is suddenly incapable.  They are in for a rude awakening when they are told by banks and other financial institutions that they will not allow spouses or family members to simply deal with property in the absence of a Power of Attorney or a Court Order.  Even if a property was held jointly, for example the family home, it cannot be sold unless a Power of Attorney has authorized it or, after great expense, a Court Order has been obtained.

The Power of Attorney is valid only when a person is alive.  Once a person dies it is their Will that takes over and provides how their assets and liabilities are to be dealt with.  If there is no Will, then the rules of intestacy apply and, once again, the Courts and lawyers get involved at great expense.

Powers of Attorney for Personal Care and the so-called Living Wills are very similar.  Some provinces in Canada recognize the validity of Living Wills and some provinces, such as Ontario, allow an individual to set out in a Power of Attorney some considerations and wishes for their health care and medical intervention, in the event they are unable to speak for themselves.  For example, if a person does not want to be kept alive by artificial means or they do not wish to be resuscitated through heroic medical measures, these wishes can be communicated in specific wording in a Living Will or a Power of Attorney for Personal Care.

Obviously, this important authority to look after your personal care and property should be given to someone in whom you have the utmost confidence.  You may wish to select a friend who is particularly astute in business matters for the Power of Attorney for Property.  A trusted and close friend may be the right person to have authority in a Power of Attorney for Personal Care.  Who would you want to make decisions on your behalf - someone you personally selected or someone appointed by a Court?

There is no more affordable service provided by lawyers than the drafting of Wills and Powers of Attorney.  I think that one of the most rewarding aspects of helping individuals and families with these matters is their reaction after the Powers of Attorney and Wills have been signed.  They lean back in the chair, give a sigh of relief and say, “That was a lot easier than I thought it would be.  It really gives me peace of mind.”

As you go forward in 2009, you may discover that a great contribution to your own search for clarity may be achieved by giving yourself – and someday your family - that peace of mind feeling.

Now that the results are in from the federal election of October 14, 2008 and the country is settling in for an extended period of minority government, attention is turning to the question of voter participation.  The voter turnout nationally was not only down from the last election in 2006, but it was downright dismal in many parts of the country. 

This should not have come as a complete shock, given that information published in advance of the 2008 election suggested that young voters in particular were not planning to vote.  One poll, conducted by the Innovation Research Group for the Dominion Institute, determined that young Canadians were being honest - they simply did not intend to turnout to the polls.  The Report published by the Dominion Institute stated that, in 2006, 57% of young voters planned to vote, but only 44% of them actually made it to the local polling station.  Three-quarters of the 18 to 25 year olds said that, while they were concerned about low turnout among voters, 30% of them said they did not feel that they knew enough to cast their own vote, 11% said they were too busy and another 11% said they just did not care.

On Thursday, October 16, 2008, the Globe and Mail carried a detailed snapshot of voter turnout in the 2008 federal election.  Overall, voter turnout fell from the level of 65% in 2006 to 59% in 2008.  In Ontario, for example, voter turnout fell from 67% in 2006 to 59% in 2008.  While there were some shockingly low turnouts in Alberta, Labrador and Newfoundland, four ridings in the Ottawa/Nepean/Carleton area had extraordinarily high turnout levels.  For example, Ottawa-Orleans had a 71.9% turnout, Ottawa Centre had a 71.4% turnout and Nepean-Carleton (a neighbourhood where I grew up) had a 70.1% turnout. Go Ottawa! 

This information has triggered an interest in why young voters do not vote, but it has also tweaked my interest in searching for possible incentives that could motivate all voters to cast their ballots.

So, how can we turn this around? How can we motivate voters to go to the polls?  I am not certain that we can rely on the arrival of charismatic political leaders to solve the problem of voter interest. In my view, charisma in politics is overrated and has lead to some spectacularly poor selections of leaders. Give me a good common sense manager, who cares about people more than ideas, over a lot of inspirational rhetoric any day. I do not believe that we can sit back and wait for personality to push people to the polls.

Australia has passed a law making it a mandatory requirement to vote.  It is an interesting attempt to solve the problem but, in the final analysis, “criminalizes” non-participation in their democracy.  I have been thinking about the other side of that coin and wonder if it is not time to try an experiment in an upcoming municipal, provincial or federal election. 

Consider the following: Those of us who did vote on October 14, 2008 will recall that we were handed a ballot that was folded. After we marked the ballot, we returned it to an election worker. That individual tore off a perforated portion of the ballot and returned the ballot to us, so we could place it in the ballot box. As I stood in line, I wondered, what if we added an additional perforated portion to that ballot that was returned to the voter as proof of having voted.  This “voter receipt,” if you like, could be used creatively for one of the following:

(1) to obtain a credit against tuition at a Canadian university or college
(2) to obtain a credit against the purchase of books from a Canadian publisher;
(3) to obtain a credit on a monthly transit pass;
(4) to obtain a matching credit for donation to a charity;
(5) to obtain an increase in the limit of funds that could be contributed to an RESP or RRSP. 

I am sure that others could add other causes and ideas that we would want to see Canadian voters support. Imagine too that we would allow families to combine their credits so that a whole family could bundle credits for a student to obtain, for example, even larger deductions on tuition or books.  With such incentives, we would say to voters that, as a society we want to acknowledge and show appreciation for the fact that you vote.  We do not care who you vote for, but we do appreciate that you go to the polls. 

I know that some observers will ask an appropriate question – what would all this cost?  I took a look at the number of ballots cast in Ontario in the 2007 provincial election – 4,423,898 people voted. What would it be worth overall to our society to send a million more Ontarians to the polls? What would it be worth to send hundreds of thousands of young people to the polls and, in the process, ensure that the credit they receive for casting their ballots is turned right around and invested back in Ontario’s publishing industries, public transit, charities and the education of our population. That is the kind of investment I would like to see taxpayers make in our society.

There is enough time to cost such a proposal and to develop a way of implementing it well in advance of the next municipal and provincial elections in Ontario. Let’s offer voters some incentives and see what happens. 

Michael G. Cochrane, B.A., LL.B.

Over the last three seasons of Strictly Legal, I have been asked on a number of occasions why I did not deal with the legal issues faced by Conrad Black.  Certainly BNN and other media outlets devoted more than enough attention to his trial that occurred in Chicago.

As I explained to viewers on June 12, 2008 during a Strictly Legal program, I was waiting for the definitive guest prior to exploring this strange place.  Well, that guest came along in the person of Steve Skurka.  Steve is a Toronto lawyer/journalist.  He practices law with the firm of Skurka Spina Cugliari in Toronto and has been involved in a number of high profile criminal law cases, defending athletes, entertainers, lawyers, politicians and even a number of police officers.  What got my attention, though, for Strictly Legal was the fact that Steve Skurka headed off to Chicago and spent a number of months covering Conrad Black’s trial up close and personal.  Out of that experience has come a book entitled “Tilted:  The Trial of Conrad Black” (published by Dundurn Press).

Steve was my guest on June 12 and during the program we explored the curious title for his book.  Was the trial of Conrad Black tilted, and if so, how?

During the program and in more detail in his book, Steve traces the differences between the Canadian and the U.S. federal system for the prosecution of criminal offences.  The differences are dramatic and can be quite intimidating from an accused person’s perspective.  For example, prosecutors in the U.S. criminal justice system more often than not hold back the statements of witnesses, placing the defense lawyers at a distinct disadvantage.  In Canada, our system of justice encourages the Crown Attorneys (that’s what we call them in Canada – in the States they’re called District Attorneys or prosecutors) to provide all of the evidence that the Crown has to the defense counsel well in advance.  In this way, the defense lawyers are able to mount the best possible and fairest defense of an accused person.  There’s no such thing as “trial by ambush.”  There is no value in a conviction that is obtained because the defense lawyers were caught off guard by the late disclosure of evidence.  The Canadian criminal justice system, while not perfect, is a much fairer one from an accused person’s perspective.

Another significant difference between the Canadian criminal justice system and the American system is the use of juries.  In Canada, when a juror finishes a trial they are prohibited by law from discussing any of their work or deliberations of the jury.  This is not the case in the United States where jurors are free to express opinions to the media, publish books and sell interviews.  In seems bizarre indeed to Canadian lawyers that a juror can have a financial interest in the outcome of their work in the justice system.

Steve Skurka certainly saw the criminal justice system as stacked against Conrad Black.  He describes the plea bargaining and deal-making with witnesses for their evidence as a virtual “criminal justice flea market.”  For anyone who is interested in the inside scoop on the trial of Conrad Black, I recommend Mr. Skurka’s book “Tilted.”  We now know that Mr. Black’s appeals were rejected and, barring a pardon, he is apparently destined to spend the next few years in the U.S. prison system. Let’s hope that Mr. Black is able to spend his time fruitfully, perhaps generating more of the well-researched and beautifully-written books for which he is well-known.

Having read the book and discussed the matter with Steve Skurka, I am left wondering whether Mr. Black would have been convicted had he been tried in Canada. I think not.

Michael G. Cochrane, B.A., LL.B.

Well, here we are in full election mode and promises are being made by the wheel barrel full. However, what if those politicians once elected don’t keep their promises? I considered this issue in my book Strictly Legal - continue reading for an excerpt.

On more than one occasion on Strictly Legal I have received telephone calls asking whether a politician can be sued for breaking a promise.  If one believes the rhetoric we hear from some Canadian political leaders, keeping a promise “is a badge of honour.”  Election campaigns are rife with statements amounting to, “re-elect me because I did what I said I was going to do!”

So, how can citizens hold politicians accountable for the promises that they make and then break?  In some situations, citizens actually have sued to get a judge’s opinion on whether there should be some accountability in a courtroom rather than just a number of years later at the polls.

An interesting case comes from British Columbia concerning the infamous “fudget budget.”  The lawsuit, which was initially framed as a class action, was later reduced to a claim by three representatives who purported to speak on behalf of voters in their constituencies.  They alleged that the NDP party in British Columbia and the MLAs seeking re-election made statements about the 1995/1996 and 1996/1997 provincial budgets, knowing the statements were false.  The voters claimed that had they known that representations about the budget were untrue, they would not have voted for the NDP.  They sought a court order overturning the election of 39 NDP MLAs.  The case was important because if the voters had succeed in overturning the election of even a handful of NDP MLAs, the majority of the NDP in the legislative assembly would have been turned upside down.  Ultimately it was conceivable that the government could fall and trigger another election.  The voters were not successful in overturning the election of the MLAs, but the court took a long hard look at relationship between the courts and politics.  Those who have spent time looking at the “fudget budget” case have concluded that it set a precedent that will very likely bring more political controversies into the courts for review.   

A number of callers to Strictly Legal asked whether a class action against the Conservative Party of Canada and the Prime Minister, Stephen Harper, would be possible after the change to the rules for taxation of income trusts.  This change was alleged to cost investors millions of dollars and threats of lawsuits continue to be made.  Anyone planning to undertake such a lawsuit has at least two previous rulings from Canadian courts to guide them.  However, until a judge rules that politicians can be held accountable in a courtroom, voters will have only the ballot box and a chance to vote differently in the next election.  We will see how this area evolves in the next few years.

Thanks for reading.

Michael. 

On Strictly Legal I mentioned, almost in passing, that legal fees in family law cases are sometimes deductible for income tax purposes. Little did I know that it would trigger a wave of inquiries.

For some reason, a number of family law lawyers have not mentioned to their clients that legal fees paid in pursuit of child and/or spousal support can be deductable on an income tax return in the year in which the amount is paid (please note the emphasis on the word “paid” – it is not the year in which the fees are incurred, but the year in which you pay the lawyer’s bill that the amount is deductible).

The legal fees are deductible if they are incurred to obtain an order for child or spousal. They are deductible if they are incurred to enforce an order for child or spousal support. They are also deductible if they are incurred while varying an order for child or spousal support and importantly, for many families, the legal fees are deductible if they are incurred, someone’s attempt to reduce or eliminate the payment of child or spousal support.

I have made it my practice to assist clients by providing a letter at the time they are preparing their income tax return stating how much was incurred in the way of legal fees and what percentage of those fees can be attributable to the aforementioned categories. So, for example, in some cases 50% of the legal fees incurred may be related to the pursuit of a property settlement or sale of a property and 50% of the fees might be attributable to the pursuit of child and/or spousal support. In such a case, only 50% of the legal fees incurred and paid would therefore be deductible.

It also appears that legal and accounting fees that are incurred in an attempt to determine a spouse’s income for the purposes of paying or receiving support may also be deductible. In this case, it is best to check with one’s lawyer to ensure that the fees incurred and paid are properly applied to the correct deduction on the income tax return.

With legal fees and accounting fees becoming more and more expensive by the minute, this kind of deduction can free up much-needed cash for families struggling through expensive separations and divorce.

One last thing to note is that if a person is successful in obtaining costs against the spouse paying child or spousal support, that amount must be deducted from the amount that is being claimed as a deduction on the income tax return”.

If in doubt, speak to your lawyer and make sure that he or she provides you with the appropriate letter when you are preparing your income tax returns.

Michael G. Cochrane, B.A., LL.B.

On January 31, 2008, my topic on Strictly Legal was taking a look at some of the unpleasant situations in which people find themselves after winning a lottery.  You probably thought that winning the lottery would make life easy.  Well, based on the cases I have seen, you might want to guess again.

In my book, “Strictly Legal,” I devoted a section of a chapter to the very interesting litigation that has developed around lottery winners.  Not only do winners end up fighting with their co-winners in the classic “who is in the winning group and who is not,” but they also end up fighting with spouses and ex-spouses, Revenue Canada, trustees in bankruptcy and lottery corporations, to mention only a few.  

On the program I mentioned a case that was reported out of the English courts earlier in January of 2008.  In that case, the court gave the victim of a sexual assault the right to sue a man who had won the lottery.  Twenty years previous this woman had been sexually assaulted by an attacker, Mr. Hoare.  He was jailed for life but (as is usually the case in these head-scratching cases) received day passes and was eventually released from jail.  While he was free on day parole in March of 2005, he won the lottery when he bought a ticket.  At the age of 59 he won the colossal sum of 7 million pounds in the national lottery.  His victim wanted to sue him for damages, now that he actually had some money with which he could pay them.  Unfortunately, there are laws that prohibit lawsuits after set periods of time.  These laws are known as “statutes of limitations” and they usually cut off the right to sue after fixed periods such as two years, four years, six years, and so on.  Interestingly, in this case, the English courts refused to deny the victim her day in court and said that the limitation periods did not automatically apply in such a case.  It is an interesting result. The assault occurred in 1987.  Mr. Hoare was sentenced to jail in 1989.  He was released in 2005 and, twenty years later, he may be required to compensate the person he injured with his assault.  Justice has a strange way of working sometimes.

In another lottery litigation case a man in Australia went to a newsstand to buy a lottery ticket.  He paid his money, but his ticket did not print correctly, so he asked for the operator of the newsstand to print him a new one.  The operator did so and, as fate would have it, that ticket turned out to be the winner of a $1.8 million dollar jackpot.  Unfortunately, when the retired gentleman went to claim his winnings, he learned that the operator of the newsstand had mistakenly cancelled the replacement ticket, not the original misprinted ticket.  The lottery corporation denied him his winnings.  However, he then sued the lottery corporation of New South Wales and the Supreme Court awarded him $1.8 million dollars in damages for negligence and for breach of contract.  Again, justice works in mysterious ways, especially when we consider that this gentleman bought his ticket in 1995 and the court did not give him his reward until 2008.

In the Canadian context, there are literally dozens of cases across Canada where we see co-winners suing each other, spouses being required to divide winnings as a component of their property and people getting into dust ups with Revenue Canada and trustees in bankruptcy.  In one case, a gentleman won the lottery on the eve of being discharged from bankruptcy.  The trustee refused to discharge the man and required him to use his winnings to pay his debts. Seems just to me.

In the family law context, winning the lottery will have an impact on any obligation to pay child or spousal support.  This would be the case whether the lottery was won before or after the separation.  The courts look at income from all sources when determining entitlement to child and spousal support.

While only assets acquired during the course of a marriage are supposed to be divided at the time of separation and divorce, for some reason, lottery winnings get a different treatment. Even if they are won after a separation, courts seem prepared to force the winner to share some of those winnings with ex-spouses.

The lottery topic was a lot of fun to discuss and we had many, many callers and a number of e-mails on the topic.  We did not hear from any lottery winners, but we certainly heard from people who were worried about what might happen if they win.   

Michael G. Cochrane, B.A., LL.B.

I used to think that family law was the number one topic of Strictly Legal, but the shows that I had on January 24th and February 7th, 2008 have proved me wrong. Wills and estates is the most popular topic, hands down.

On January 24, 2008, Ian Hull, a partner with Hull & Hull LLP in Toronto, was my guest for a program that focused on the rights and responsibilities of estate trustees and executors. No sooner had Ian and I reviewed some of the basic terminology in this area (for example, estate trustee and executor are the same thing. The terminology was simply changed recently in Ontario) – and the phone lines lit up with dozens of questions about the important responsibilities that go with taking on the task of being someone’s executor/estate trustee.

This is one of the reasons why I put an entire chapter in my book “Strictly Legal,” dealing with the area of wills and estates. In part, I think it is a demographic driven interest. Baby boomers are getting older and not only thinking about their own wills and estates, but also their responsibilities as executors/estate trustees for their parents’ estates.

On February 7, 2008, my guest was Jordan Atin. He is also a member of the law firm Hull & Hull LLP and, like Ian, is very knowledgeable in the area of estates and trusts. Jordan is the Chair of the Estates and Trust section of the Ontario Bar Association and the author of a book called “The Family War: Winning the Inheritance Battle.” In his book, he devotes an entire chapter to “Being an Executor – What You Need to Know.” Check out his website at www.thefamilywar.com .

The importance of this function is made clear when one realizes that the executor/estate trustee has responsibility for such things as finding the will, arranging the funeral and burial, dealing with a probating of the will, collecting and securing the assets of the estate, paying the debts – including income tax – making investment decisions pending distribution of the estate, tracking down beneficiaries and making sure everyone gets what they were supposed to receive under the will.

During the course of both programs I tried to deal with some of the many e-mails that have been sent in with very practical questions about the role of executors and estate trustees and the rights and obligations of beneficiaries. In one e-mail, a viewer, Margaret, asked whether the executor/estate trustee could be held responsible for several years of income taxes that had been left unpaid by the deceased. There was no money left in the estate and she was concerned that, as executor, she might be responsible for that debt. As it turns out, if there are no assets at all for satisfaction of debts of the estate, such as income tax, then that is the end of the discussion. Beneficiaries who expected to receive gifts will be disappointed to learn that any assets are used to pay debts first. Incidentally, the first and foremost debt is to make sure that the deceased gets buried, but then income tax and other bills, such as unpaid Visas, mortgages and the like, are paid first. Anything left over is distributed. The only time that an executor/estate trustee might get into trouble is if they distribute assets or gifts under the will without first ensuring that the debts have been paid. In other words, Revenue Canada could show up asking for arrears of taxes and an executor who has paid out money to beneficiaries may find himself or herself responsible for those taxes.

An e-mail from Paul asked whether an executor/estate trustee had any role to play prior to the person making the will actually passing away. This executor was worried as he watched someone exercising what he considered to be undue influence over the testator (the person who had made a will). An executor has no legal responsibility or power until the testator is deceased. If a power of attorney was in place for personal care or property, the holder of that power of attorney might have some authority to intervene, but an executor has none. This does not mean that the person selected as executor could not, on a moral basis as a friend, intervene to protect the person being subjected to undue influence, but that would have nothing to do with the fact that someday he or she might have the job of executor/estate trustee, once the individual has passed away.

A common question when we talk about wills and estates on Strictly Legal is whether beneficiaries are entitled to a copy of the will and they most certainly are. They are also entitled to ask questions of the executor/estate trustee and call that individual to account as the estate is gathered up, debts are paid and preparation for distribution of any remaining money is proceeding.

Since this topic is the most popular, we will definitely be returning to the area again for future programs. Ian and Jordan always do a great job of answering questions in understandable language, so you can expect to be seeing more of them on Strictly Legal in future.

Michael G. Cochrane, B.A., LL.B.

On December 6, 2007, I was very fortunate to have as guests on “Strictly Legal,” Graham McWaters and Gary Ford.  Graham and Gary are the co-authors of a new book called “The Canadian Guide to Protecting Yourself from Identity Theft and Other Frauds.”  It is published by Insomniac Press, and I can tell you from my own personal reading of the book that it is a winner.  It is very easy to read and provides very practical advice on what is becoming a dangerous threat to privacy in the lives of Canadians.

Graham McWaters has worked within the financial services industry for over a decade and Gary Ford is the Vice-President of Sales and Marketing for a national insurer in the area of title insurance, so they know of what they speak.

We began the programme with a brief overview of the nightmare experienced by Alicia McAteer.  When she was eighteen years old and attending college in British Columbia, she became the victim of identity theft.  Her purse was stolen from a bowling alley.  Two years later, she was still trying to sort out various frauds that had been committed under her identity, including car accidents, video store charges, snowboard thefts and a draining of her bank account while she was away on a trip to Mexico. 

This kind of fraud is happening and Canadians need to be proactive in protecting themselves.I have already heard from many viewers of “Strictly Legal” who – in the middle of the show – went and picked up their wallets and purses and removed their social insurance cards and birth certificates.  This is a very practical tip that Graham and Gary gave on the show.  If someone steals your wallet or purse and those two pieces of identification are taken, there is little that can be done to stop them from stealing your identity.  There is no need to carry those two pieces of identification in your wallet or purse.  Instead, they should be immediately taken out and put in a safe place at home (eg. with your passport).

In their book, they trace not only the way in which identity theft occurs, but also what can be done if you feel that you have been the victim.

In a separate chapter, they deal with debit and credit card fraud, something that we should all be wary of during the Christmas shopping period.  Some of their tips include carrying only one or, at most, two credit cards.  Never write your PIN on your credit card.  Always make sure that you have a record of the phone numbers of the credit card companies and the numbers written down in a safe place so that if you have to report them stolen, the information is immediately available.  And, last but not least, of course, if your card is stolen, it should be reported immediately so that the credit card company can stop the thief by immediately canceling your credit card.

Another useful tip is to always check your credit card receipts as soon as they arrive.  I am surprised at the number of people who have mentioned to me that they check their credit card receipt only to find that they had been billed over the course of a number of months for items that they had not purchased or services they had not received.

I asked Graham to explain the “Lebanese Loop.”  This is a technique where a fraudster puts a plastic sleeve in an ABM machine.  When you insert your card, it sticks in the plastic sleeve and cannot be removed.  The con man then tells you that the same thing happened to him and that the best way to get the card out is to put your PIN in several times.  The con watches you do so and then when the card is not ejected from the machine, he has the useful advice of, “You should see the bank manager.”  Of course, after you leave, the fraudster removes the plastic sleeve from the machine and has your card and PIN number.

Graham and Gary devote an entire chapter to Internet and e-mail fraud with explanations about “phishing,” “spoofing,” “keystroke logging” and all of the other creative ways that are being invented to rip you off on the Internet.  In a separate chapter, they deal with mortgage fraud which, sadly, shows no likelihood of decline.  Title insurance can be purchased to protect a home from this type of fraud and, as Gary Ford explained, there is little that a homeowner can do if someone is determined to engage in a fraud.

Graham and Gary have performed a bit of a public service in providing Canadians with this guide and I hope to have them back on the show in 2008 to talk about some of the other more sophisticated types of rip-offs and how Canadians can avoid being victimized.

Michael G. Cochrane, B.A., LL.B.

On November 8, 2007, my guest on “Strictly Legal” was Elinor Whitmore. She is a mediator at the ADR Chambers in Toronto and an experienced trainer in the area of alternative dispute resolution.

I wanted to explore this topic on “Strictly Legal” because there is a growing frustration with the traditional adversarial process and, in particular, the cost and anxiety created by courtroom litigation. As a result, more and more people and businesses are moving their disputes out of the court system into some of the new alternatives.

This process has been underway for some time. Business people, in particular, were becoming increasingly alarmed at the snail’s pace of dispute resolution in the court system. The cost of litigating was beginning to overtake the benefit of even a successful outcome. Sure, people were awarded their costs if they were successful, but those costs often represented a fraction of what was actually spent on the dispute. Time away from the office, the emotional drain, and the fact that the business dispute was being aired in public, all contributed to a growing distaste for litigation.

Arbitration has long been used in resolving commercial disputes. Experience with arbitration goes back hundreds of years but, more and more, people and businesses are resorting to arbitration to resolve disputes that just a few years ago they would have been very happy to turn over to lawyers for litigation. In addition, mediation has really caught fire as a much more satisfying way to resolve disputes.

Mediation is a process whereby an experienced third party acts as a neutral facilitator of negotiations. The job of a mediator is not to impose a decision on anyone, but rather to assist the parties in finding creative solutions to the problem they face. Dispute resolution is not always a win/lose situation. Mediation can make it win/win.

A few years ago, I attended Harvard Law School to take their program in Negotiation and Advanced Negotiation. It was a terrific experience and I will never forget the simple story that was told at the outset about a mother trying to resolve a dispute over an orange. Her two children were arguing over the last orange. The mother took the orange away from them, cut it in half and gave each a half, thinking she had finally resolved their argument. The little boy took the skin off the orange, threw it away and ate the fruit. The little girl took the skin off the orange, used it for some baking and threw away the fruit. The message here is that if the mother had taken the time to find out what they really wanted, they both could have had 100% satisfaction. That’s the way mediation works.

During our discussion, Elinor and I reviewed the fact that it can be entered into before or after litigation has started. In fact, more often than not, parties who have tired of the battle in court often opt out into mediation to get the dispute resolved.

Another process that is being used, particularly in the family law area, that is similar to mediation is called “collaborative law.” In this process, the lawyers and clients sign an agreement to negotiate in good faith with each other. If a settlement is not reached, the parties agree that the lawyers must be discharged and new lawyers hired if the matter is to go to court. This offers a cost disincentive and encourages them to resolve the dispute in the collaborative process. It is similar to mediation, with the lawyers both acting in mediation type roles, urging the clients to find creative solutions.

Arbitration is more akin to a private judge. There are many experienced lawyers and retired judges who now act as private arbitrators. ADR Chambers offers a wide range of expertise and experience in this area. I noted with Elinor during our program that Bob Rae, the former Premier of Ontario, has recently joined their roster as a mediator/arbitrator.

There is still a role for lawyers in these alternatives to the court. Clients still need to double-check the solutions that are being considered. Lawyers are needed to ensure that the deal, once reached, is buttoned-down and incorporated in an enforceable agreement.

Elinor and I reviewed the cost of arbitration with an experienced arbitrator running at about $300.00 - $500.00 an hour. This may seem like just an additional expense, but when you consider that it is divided between the parties, that the process they follow is tailored to their needs and that there are rarely delays in an arbitration (as there are very often in the court system), the process quickly becomes very affordable. As I mentioned during the program, it has gotten to the point where people cannot afford to stay in the court system because of the delays. For more information about ADR, see Chapter 1 of my book “Strictly Legal: Things You Absolutely Need to Know About Canadian Law,” where I review “Ten Things You Absolutely Need to Know About “the System.”

We will definitely be seeing more and more of alternative dispute resolution and, in particular, mediation and arbitration in the future.

Michael G. Cochrane, B.A., LL.B.

On “Strictly Legal”, November 1, 2007, my guest was Dr. Ann Cavoukian, Ontario’s Information and Privacy Commissioner. Dr. Cavoukian is a leading privacy expert and has been Ontario’s Information and Privacy Commissioner since 1997. She has won numerous awards and authored some groundbreaking books on privacy.

We started our discussion with consideration of my suggestion that Canadians have a bit of a “blind spot” when it comes to protecting their privacy.  We really take for granted the good motives, and even good faith, of people that we share a lot of information with.  Little do we know that there are crooks, and even commercial enterprises, who are more than happy to exploit our privacy for their own benefit.

The book that I gave away at the opening of the program was hot off the presses. The book is called “Privacy Lost: How Technology is Endangering Your Privacy.”  It is written by David H. Holtzman and, as I mentioned on air, just a few chapters of reading that book will scare the pants off anyone who has taken their own privacy for granted.  I highly recommend it.  It is a U.S. publication and considers some of the nightmare scenarios that have occurred in the United States, but there is not one piece of information in it that should not be heeded as a warning for what is going on in Canada, and will be going on in Canada in the very near future.

Dr. Cavoukian and I reviewed the Ontario Legislation that is designed to protect the freedom of information and protection of our privacy. This law applies to Ontario’s Provincial Ministries and most of the Provincial Agencies, Boards and Commissions. It also applies to community colleges, universities and local health integration networks.

The main idea is that the government is required to protect the privacy of an individual’s personal information, as it exists in government records.  It also gives individuals the right to request access to government information, including general records and records containing their own personal information.

For very detailed and useful information about the way in which the Freedom of Information and Protection of Privacy Act is intended to work, I recommend that you visit the website of the office of the Information and Privacy Commissioner. There are downloadable pamphlets that set out the entire privacy complaint process and the way in which the laws work, both with respect to the provincial government and municipal government in Ontario.

The good news is that while Dr. Cavoukian and I were focusing on the Ontario law, there are equivalent laws in each of the Canadian provinces.  The way in which the laws are implemented may be a little different in that, for example, not every province has a Commissioner.  Sometimes, other legislative Officers are responsible for enforcing the privacy laws and the protection of the freedom of information laws, but the function exists in each province.

There is a worldwide effort afoot to protect the privacy of citizens.  Usually, it is a horrifying example of identity theft that prompts Canadians to run to the local store and buy paper shredders.  By then, of course, it is too late.  Each family, and each individual, needs to develop a different mentality in their approach to protection of individual privacy.  The “blind spot” needs to be removed and replaced with a much more cynical vantage point on people who would prey on our privacy.

In “LawyerSpeak” on November 1, 2007, I set out a three-part definition of what privacy can mean.  The definition that I selected was from David Holtzman’s book “Privacy Lost:  How Technology is Endangering Your Privacy” and, in concluding this blog, I would leave this definition with you for consideration.

“Privacy includes, (1) Seclusion – the right to be hidden from perceptions of others, (2) Solitude – the right to be left alone and (3) Self-Determination – the right to control information about oneself.

Words to consider as you remove your privacy “blind spot.”

Michael G. Cochrane, B.A., LL.B