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Monday, 27 February 2012 08:00

The case of the missing subsection

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Fredericton, N.B., has its revolutionary side. The Occupy Movement took over a piece of Phoenix Square last fall and erected a shelter, complete with wooden beams and a door. They put up a sign, declaring that they represent the 99 per cent. The appearance of this house of protest in the front yard of City Hall was not to the liking of Mayor Brad Woodside and like many other observers, I was rather surprised that the city did not intervene and de-camp the protesters, before they obtained peaceable possession of the site.
Never mind. The occupiers took the position that they had a constitutional right to be there. They argued that the shelter and the sign were an essential part of a political protest and provided a visible reminder that the 99 per cent have not been served by their political representatives. The house of protest was not on private property; it was on public property, outside the seat of local government, they argued, and was a legitimate exercise of their freedom of expression under the Charter of Rights and Freedoms.
The relations between the two sides deteriorated when Alex Davenport, one of the protesters, took up residence inside the shelter. This became news when he had the address on his driver’s licence changed to Phoenix Square, in order to cement his claim to possession of the newly built home. Woodside, less happy than before, nevertheless stood by his position that Fredericton would provide an example of peace and hope for the rest of the country. The protesters would be allowed to stay until they left of their own accord.
This period of peace and light lasted well into the fall, when colder political winds began to blow. As city after city began dismantling the tent cities that the Occupy Movement had erected in parks and squares across the country, the mayor began to show signs of impatience with Davenport’s homestead in Phoenix Square. The protesters sensed the halcyon days of their discontent were coming to an end, and kept a 24-hour vigil, waiting for the action against them to commence.
As winter bore down upon the square, and the protesters huddled for warmth inside the shelter, the mayor suggested the city might have to bring the political experiment to an end. I thought there was something parental in his concern. The protesters responded by installing a heater in the house of protest, which was duly inspected — and passed — by the fire marshal. The mayor was not pleased.
It was plain that the city wanted the shelter down. We had already entered the Christmas season, however, and the bets on the table were that the city would not make its move until the season of good tidings had come to an end. As a lawyer, I wondered if it was going to be unpleasant. For one thing, the Criminal Code gives everyone the right to defend their dwelling house, and there were people living on-site. It could get nasty.
The mayor asked the occupiers to take down the shelter to make way for the annual Christmas tree, but the protesters merely downsized, and added some Christmas lights of their own. The protesters knew that taking the shelter down was the easy part of it. The trick would be getting it back up.
The mayor was no longer interested in concessions. On Jan. 1, he personally gave the chief protesters a letter and a legal notice under s. 5 of bylaw T-4 [http://www.fredericton.ca/en/citygovernment/resources/Bylaws-Traffic-T4.pdf]. The letter stated that Occupy Fredericton was prohibited from “installing, erecting, or maintaining a building or other structure in contravention of Section 5 of By-Law No. T-4, A By-law Respecting Streets and Sidewalks.”
The notice was issued by the city’s director of Engineering and stated that the protesters would be violating the bylaw if they did not remove “any and all structures” within three days. The notice quoted the penalty provision in the bylaw, which made such violations punishable on summary conviction. I found the notice rather deficient, legally, since the bylaw obviously has a number of provisions and the notice did not state what provision the protesters had violated. Section 5 merely provided for the issuance of the notice.
I have now spent more hours of my life reviewing Bylaw T-4 than I would have ever wished for. I cannot go into the details of the bylaw here, but I cannot find anything in it that covers the homestead in Phoenix Square. For its part, s. 5 merely states that the director “shall give to any person who erects or maintains a building or structure contrary to this section three days notice in writing to remove the same or such portion thereof as may be within or over a street.”
It is true that I kept stumbling over that reference to a building or structure “contrary to this section” — because it didn’t make any sense. Section 5 clearly states the director is to give anyone who contravenes the section three days written notice to take it down; but that’s all it says. There is nothing in the section that actually says what contravenes the section. At first I wondered if there was a mistake in the copy of the bylaw that I had — but the official copy of the bylaw in the city clerk’s office says exactly the same thing.
And then I realized that s. 5 is missing a clause. All we have is the subsection, which sets out the grace period. There must have been another subsection, which contained a substantive clause that makes it an offence to erect and maintain a structure on a street or sidewalk without the permission of the city. Something like that. If you insert such a missing subsection into s. 5, everything makes sense.
The problem for the city, of course, is that the subsection is not there. I cannot be sure, but the obvious guess is that someone down at city hall made a clerical mistake and left out the necessary clause. I do not know how many municipal bylaws there are in the country, but sooner or later, I suppose someone is going to forget to include something.
I have never seen anything quite like this in 30 years of practice, but my immediate question was simple enough: how could the city have missed the problem? They have a solicitor. The city’s legal staff would have reviewed the city bylaws as soon as the protesters occupied the square and discovered the problem — if they were not aware of it already.
The legal response to the situation seems simple enough. The city had two options: the first was simply to amend the bylaw; the second was to make an application to a judge on the Court of Queen’s Bench and ask for an order removing the shelter. The second alternative made good sense, and the protesters had actually agreed to it, since they wanted to make their own arguments under the Charter.
But that is law. The fight for Phoenix Square was a political fight and the politics of the situation were embarrassing. The mayor would have to take a deep breath and state publicly that the city had passed a defective bylaw, admitting the city had omitted the one thing in the bylaw that makes it work. Then I noticed it was Woodside who signed the bylaw into force and recalled the mayor had said something, at one point, about strengthening the bylaw. Strengthening indeed.
The city’s response when all of this came to light was to remonstrate that the square is public property. I suppose it should have said that to the judge. It has nothing to do with the letter and the notice, which state unequivocally that the protesters were violating of s. 5 of the bylaw. With all respect to the city, it is abundantly clear that the protesters were not violating s. 5 — for the simple reason that there is nothing in s. 5 to be in violation of — and the existing section is meaningless without the substantive clause.
This may ultimately explain why the city moved in with chainsaws and box-cutters before the three days in the notice had elapsed, and literally cut down the shelter with Davenport and two other protesters inside it. The point, of course, is that the city had essentially promised to charge them with an offence after the three days had elapsed. And that would have been a feat.
The question that this raises for the profession is simple enough. How can the city’s legal department stand by idly in these circumstances and allow the city to misrepresent the law? I hardly need to say to lawyers that the city cannot charge the protesters with a violation of a clause that was supposed to be in the bylaw. Where oh where was the city solicitor in all of this?
Paul Groarke is an assistant professor in the Department of Criminology at St. Thomas University in Fredericton, N.B.
b_150_0_16777215_00___images_stories_01-CANADIANLawyer_Standard_photos_paul_groarke.jpgFredericton, N.B., has its revolutionary side. The Occupy Movement took over a piece of Phoenix Square last fall and erected a shelter, complete with wooden beams and a door. They put up a sign, declaring that they represent the 99 per cent. The appearance of this house of protest in the front yard of City Hall was not to the liking of Mayor Brad Woodside and like many other observers, I was rather surprised that the city did not intervene and de-camp the protesters, before they obtained peaceable possession of the site.
Monday, 27 February 2012 08:00

Make the rich (not) pay!

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Remember that old slogan the Communist Party of Canada (Marxist-Leninist) used when you were in university? They used to cite Albania as a workers’ paradise. Enver Hoxha was their ideal leader. “Make the rich pay!” was their mantra. Anyone recall that? Anyone?
Don’t ask me why, but I was reminded of this during two recent speeches by the  deans of the University of British Columbia and University of Victoria law schools.
They were discussing how they can’t sleep well at night because they’re unable to raise law school tuition to levels charged in other parts of Canada because of a B.C. government mandated tuition freeze that applies to both undergraduate faculties and professional schools.
B.C. universities aren’t going to get any more money from government (that’s obvious), but a freeze on law school tuition means that UVic and UBC will find it harder to attract the “best and brightest” legal scholars and may well have to lay off support staff. Fewer dollars means they won’t have the resources to hire those who would be paid buckets more money elsewhere. It’s nice here in B.C., but you can’t eat scenery in the most expensive part of Canada. And if positions at Queen’s, the University of Toronto, or Western open up and offer to pay current faculty more money than UVic or UBC can afford, do you blame faculty for leaving B.C.?
I’m sure the Canadian Federation of Students will want my head on a platter for this, but the artificially low tuition fees the B.C. law schools are forced to charge are a national joke when you see what other law schools cost and what lawyers have the potential to earn.
Not only is low tuition for law school a taxpayer-funded subsidy to well-off students or soon-to-be-well-off lawyers, it’s a B.C. taxpayer subsidy to rich or soon-to-be-rich Ontario lawyers who can come to B.C. for law degrees that are 30- to 60-per-cent cheaper than one from Ontario.
It’s not only make the rich not pay, its make the rich Ontarians not pay!
Let me explain.
The artificial freeze on tuition in B.C. law schools is an example of “public policy gone wrong.” Although the CFS continues to demand that tuition be lowered or eliminated to allow for greater accessibility to higher education for poorer students, there is research that says that this is all horse malarkey. But it does give the CFS something to endlessly complain about to justify its existence.
Stephen Gordon (of my favourite newspaper, the Globe and Mail), suggests that its not the tuition fees that determine whether you go to university, but other factors such as the socio-economic status of one’s parents, the opportunity cost of being out of the workforce, and the cost of living while at university. Oh, and I’d add: your grades in high school.
“Reducing tuition fees,” says Gordon, “will do very little to close the gap between university participation rates in people from the higher and lower ends of the income distribution.” He cites a study prepared for the government of Quebec by Université de Sherbrooke professor Valérie Vierstraete, that the outright elimination of tuition fees in Quebec would only increase university enrolment by 7.8 per cent.
Now let’s look at professional schools like law. Law is a profession. Students aren’t going to law school to read chief justice Brian Dickson’s eloquent decisions as if he were Lord Byron or Chaucer. The vast majority go to law school to be admitted into the profession so they can make a better, and arguably more interesting, living than what they were doing before law school.
And there are monetary rewards in the legal profession. Starting associate salaries for lawyers in downtown Vancouver, Calgary, and Toronto firms are between $80,000 and $120,000. And yes, we all know it’s lower in the burbs and in small towns, but it’s not chicken feed either.
Now let’s look at current tuition levels.
UVic law’s annual tuition is $8,508; UBC’s is $10,338. But wait. Move eastward and you’ll see tuition for Queen’s is $14,220, Western is $16,626, Osgoode Hall Law School is $19,041, and U of T is a whopping $25,389 per year.
So what we have is a situation where those entering the legal profession can expect to make, very conservatively, $50,000 and not so conservatively, $90,000 in their first year of practice. They’ll make more money in subsequent years, and way more money if they’re at big firms.
Sounds to me like tuition is pretty cheap at UVic and UBC when compared to what many will make in their first few years at the bar, and really cheap compared to what they’d have paid if they’d gone to law school in Ontario.
Admittedly, not everyone will be making what the big firms pay, but let’s face it: law grads won’t have to wait tables at The Keg anymore like I did before (and during) law school. And I suppose if I was earning less as a lawyer than what I was earning before (and during) law school, I’d have stayed at The Keg, moved to where there was a law firm that would hire me, or found something more lucrative to do.
So, to be blasphemous, there is no valid public policy reason why B.C. needs law school tuition frozen at artificially low levels when it is $5,000 to $15,000 higher in Ontario. Low law school tuition is nothing more than a subsidy funded by B.C. taxpayers for those who would otherwise be able to pay for their valuable law degree soon after they start practising (or get hired in other industries that find a law degree an asset).
“Make the rich not pay!” must be the B.C. government’s motto!
But in addition to being a subsidy for wealthier law students and soon-to-be-wealthier lawyers, the freeze on law school tuition has created a market for non-B.C. students obtaining comparatively inexpensive law degrees that are subsidized by the B.C. taxpayer! It’s so cheap to go to law school in B.C. that our schools are flooded with students from other provinces who get can their legal education at one of two world-class institutions at bargain basement prices, only to “head back home” once they’re done!
Don’t believe me? Look at the numbers: 40 per cent of UVic’s first-year law class comes from outside B.C., and about 35 per cent of them leave B.C. to article back in Ontario or Alberta.
“Make the rich Ontarians not pay” may well be the most appropriate motto of Advanced Education Minister Naomi Yamamoto and the rest of the B.C. Liberals, who refuse to allow UBC and UVic to increase law school tuition levels (except by a measly two per cent per year for inflation) to match the average charged across Canada: $14,300 per year.
And to make the most obvious point imaginable, does anyone in their right mind think that Osgoode provides a profoundly better legal education than UVic does because its tuition is $11,000 a year higher? Are UBC students getting a poorer legal education than Western students because Western charges $6,000 more a year? Anyone want to argue that one?
Yet the B.C. government allows a new law school, Thompson Rivers University, to charge $16,800 per year. Now if you were Yamamoto, why on earth would you allow a new law school to charge that and not allow the other two law schools to match it?
The answer is that UBC and UVic were subject to the government mandated (read “politically motivated”) tuition freeze, but because TRU’s is new, it is only subject to the freeze once the tuition is established. Now that it’s been established, TRU is subject to the freeze. And by the way, TRU has 75 students enrolled and had close to 500 applicants willing to pay $16,800 a year for tuition.
Do you not think the thousands of applicants to UVic and UBC in 2011 would not have been prepared to pay what TRU is charging? Maybe UBC and UVic should de-certify their law schools for 24 hours on Aug. 1, then re-establish them on Aug. 2 as “new institutions” so they can match TRU’s fees!
Or maybe the B.C. government should unfreeze tuition at professional schools like law, capping them if they want at what TRU charges. But clearly, lower tuition for everyone gives everyone a subsidy, including those who can most afford law school. Higher tuition would ensure that those who really needed financial assistance could get it.
Oh, and what happens to “accessibility” if UVic and UBC charge, say $6,000 more a year for law school tuition? Well, it improves.
Right now there is very comprehensive and generous financial aid available from UVic and UBC law schools that assists all students in financial need. If tuition were raised to, say, $16,800 per year, I would expect the deans would bend over backwards to ensure that additional funds from that increase were allocated to needy students.
But for now, the UBC and UVic law schools wallow in a public policy catch-22 where they can’t get more money from government, yet they’re prevented from getting more from the students.
It’s not just bad public policy. It’s idiotic.
Ontario law students must just love how profoundly stupid we are here in B.C.!
b_150_0_16777215_00___images_stories_01-CANADIANLawyer_Columnists_tonywilson.jpgRemember that old slogan the Communist Party of Canada (Marxist-Leninist) used when you were in university? They used to cite Albania as a workers’ paradise. Enver Hoxha was their ideal leader. “Make the rich pay!” was their mantra. Anyone recall that? Anyone?
Monday, 20 February 2012 19:23

I’m a lawyer but I’d rather be a pirate

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b_150_0_16777215_00___images_stories_01-CANADIANLawyer_Columnists_sarah-dale-harris.jpgRoses are red
Violets are blue
The war on piracy
Will never be through
Legal project management is one of the more recent trends to affect the practice of law. Whether it is a passing fad, as its detractors dismiss, or here to stay, as its advocates would like, its implementation in law firms will ultimately depend on their clients’ will to have files managed according to project management principles. Clients, however, are unlikely to request this unless they perceive a direct link between LPM and the bottom line. Until LPM addresses pricing, budgets, and fees, the merits of Gantt charts, work breakdown structures, and communication plans will largely remain ignored.
Monday, 20 February 2012 18:48

iPad apps for lawyers

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A few months ago, I bought myself an iPad2. At first, I thought I would be using it primarily as my e-reader. However, as I started to become more familiar with the device, I realized it also had serious potential of being an effective and powerful tool in my law practice.
b_150_0_16777215_00___images_stories_01-CANADIANLawyer_Columnists_stephen-mabey.jpgIn keeping with this column’s intent of delivering practical sensible commentary/solutions to issues currently facing law firm management, I shared last month that I had invited a few folks to write on topics they were both passionate and knowledgeable about and this month’s column is the first one.
Monday, 20 February 2012 12:02

Working on not working

Written by
b_150_0_16777215_00___images_stories_01-CANADIANLawyer_Columnists_lindsay_scott.jpgMy January column was all about how to work. This month, I’ve been thinking a lot about how not to work (well, at scheduled intervals throughout the year). I’m taking my first official vacation as an associate this month, and I imagine many other first years have some winter holiday time booked, too. I took a few days off at Christmas, but was in town and worked as necessary. This time I’m headed out of the country for some fun in the sun. This column is all about how I’m learning to take vacation and make it count.
b_150_0_16777215_00___images_stories_01-CANADIANLawyer_Columnists_sonyanigam.jpgThe purpose of Black History Month is to right a wrong; to insert the contributions of black people into our collective consciousness because the white male writers and educators did not include them. There were a number of groups that these scholars excluded, not because they were mean or evil, but because they were individuals of their time and hampered by the limited vision of reality that the present tense confines.
Monday, 13 February 2012 09:38

Writing the valuable client letter

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Clients have faint understanding of what lawyers do. This is an indictment, considering how much communicating lawyers do with this captive and interested audience. In fairness, clients accept lawyers’ advice like street food: what goes into it can be too much information. Clients want to find lawyers’ advice useful. Lawyers’ correspondence, like a truffle, is valuable not for what it is but for what it does.
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