Lang Michener, LLP, the law firm that Rogers Wireless has selected to represent it in court, is a paradigm of the Bay Street Law firm: sharp, professional, spectacularly successful, and well-stocked with a stable of ambitious and polished lawyers who, as they are assiduously trained to do at law schools across the country, are prepared to use the formidable arsenal of the law at their disposal as their client sees fit.
One of the things that law schools train lawyers to do is to know, inside-out, the technical body of rules that constitute the law.
The rules of procedure, whether in Small Claims Court or the Supreme Court of Canada, are just as exacting as any other statute or area of common law. The obligation of both parties to a legal action to observe the formal requirements of the law to the letter generates certainty and fairness and ensures that neither party will be unfairly surprised by, for example, a summons to witness that was never received or a motion to which one party was never called to attend. Rigour and diligence in respecting legal rules – from precedents to statutory provisions to procedural rules – considerably narrows the scope of discretion (and any potential for unfairness that might arise from such a personal intuition about justice) allocated to judges.
Most lawyers learn very early on (usually in the first several weeks of attending law school) that a mastery of the rules that constitute the law of the land is not sufficient. Rules, legal ones included, don’t apply themselves. Very often rules need to be interpreted “in the circumstances” in order for their true direction and meaning to become apparent. While the rules may be written in black and white, the context in which they come to life is ever changing and supple. Alongside an assiduous knowledge of the rules, a good lawyer learns to be strategic about when and how to use them.
Of course lawyers are also constrained by ethics – in particular by those that govern the profession. So the strategic manipulation of the rules also has to fit within the framework of both law and professional morality for a lawyer to remain in good standing. Lawyers cannot only be driven by their client’s unbridled aspirations; lawyers are also officers of the court.
Within these constraints, however, a excellent lawyer knows how to play effortlessly with the rules of the law – even to the point of transgression – all the while remaining within the law.
A superlative lawyer is further attuned to the multifaceted culture of law and the dense network of informal rules, unwritten conventions, and senses of injustice that give the law, wherever it manifests itself, its aura of legitimacy.
A good law school education should provide each graduating class with the foundational capacity to be excellent in any court in Canada, or indeed around the world.
Not all courts, however, will require the same balance between rule compliance and strategic interaction with the rules. Not all legal forums have the same culture. Not all of them inspire the same sense of injustice.
Small Claims Court, for example, is not intended to be a fetishistically legalistic forum.
The majority of parties to a Small Claims Court action are regular folks and small businesses who want to recover relatively miniscule damage awards for things like sums like sofas that were never returned to a proper owner, or three months of rent that was never paid. In Ontario’s Small Claims Court, the maximum claim for damages is $10,000. Because the claims are so small, it makes little sense for a party to expend vast sums of money on lawyer’s fees and engage in the technical and costly legal manoeuvring common in courts where the stakes are higher.
Taking the clientele and goals of Small Claims Court into account, the paramount guiding principle of Small Claims Courts is that parties should be able to conduct their own cases without recourse to a lawyer. For this reason, the rules of civil procedure and evidence tend to be simplified so that they are accessible and easy to follow for the unrepresented party who is typically unschooled in the formal law.
To encourage parties to resolve the dispute within the framework of such low key legal expenditures, Small Claims Court sets a low threshold on the maximum costs that can be awarded against a losing party. Such a low ceiling in fact discourages parties from injecting their claim with the expertise of lawyer.
In part for these reason, therefore, while Small Claims Court is a court of law, it is also a court of equity, where judges have wider latitude than in other federal and provincial courts to look for the fair resolution to the dispute, rather than the rigidly legal one, the threshold assumption being that the parties to a Small Claims Court action can’t afford a rigidly legal understand of their problem. A prevailing tone of legalistic vigilance would go against the grain of delivering justice for folks who don’t have deep legal pockets and whose claims are too banal to afford the full blown spectacle of law.
Given these set of expectations, you wouldn’t typically expect to see a legal team composed of two members of the General Counsel of a major Canadian corporation and a partner AND associate at a major Bay Street law firm representing one of the parties to a Small Claims Court action. Even if the claim were for the maximum available damages in Small Claims Court - $10,000 – the legal bill for such a formidable team would quickly exceed the claim.
As much as Small Claims Court is a court of equity, clearly fairness demands that parties can expect predictability and certainty and a solid structure of foreseeable rules that will restrain both the parties and the court from arbitrary action. While the culture of Small Claims Court demands that particular attention be paid to the spirit of the law, the demands of justice attached to common law courts also require attentive focus on the letter of the law. Although the legal rules governing Small Claims Court are simplified, they are by no means irrelevant.
Of all common law courts in Canada, Small Claims Court has to adroitly balance the expectations of popular and intuitive justice – the justice of the common folk – with the expectations of the formal law.
Given the tension between these two competing aims, parties in Small Claims Court should calibrate their own expectations somewhere between the letter and the spirit of the law – between lawyer’s law and popular justice – and comport themselves accordingly.
I fully anticipate that Rogers Wireless and its legal team will hold me to me to the high standards of the law that are set for any Canadian court. I therefore consistently aim to conform with the rules of court for matters such as proper service.
Distracted, once, by a conversation in the lobby of Lang Michener, LLP with Rogers’ pseudonymous associate lawyer Angus, I forgot to ask him to sign for receipt of the amended pleadings which I had just put into his hands. When I was at Small Claims Court later that day to file my affidavit of service, I was informed by the clerk that she would not accept my affidavit of service that swore that I had hand-delivered the amended pleadings to counsel for the defendant. She claimed that in this particular case, unlike all of the previous affidavits of service I had filed, my affidavit would be insufficient because this time I had served designated counsel directly. When the lawyer is served, he or she has to sign an endorsement for receipt of the document. Technically, as far as the court was concerned, without my affidavit of service in the file, Rogers was in a legal position to argue at trial they had never received it.
I sent Rogers’ lawyer an email note which said:
I was up at court trying to file my Affidavit of Service for the Amended Pleadings that I personally handed to you on Friday, March 3. The clerk at Small Claims Court wouldn't swear it because she says I need to have a signed endorsement from you that you received it.
I need you to affirm that you were handed the Amended Pleading on March 3. I think if you simply reply to this email, that should be sufficient and I'll append it to the Affidavit of Service.
Can you let me know exactly what the procedure is for receipt of documents at Lang Michener. The receptionist says she can't sign for anything but that the normal procedure is that she just gives her name orally along with an oral statement of the date and time. So who is authorized to sign for receipt of documents?
Angus sent me a reply email that said:
Ms. Drummond:
We were not properly served with an amended pleading on Friday March 3, 2006.
Pleadings should be amended in accordance with rule 12 of the Small Claims Court Rules by filing the document with the court clerk and thereafter effecting service on a party in accordance with rule 8.01(10). The document that I received on March 3 was a document in which the Form 7A had been signed by the court clerk on September 19, 2005 and the attached Reasons for Claim and Details appeared to be substantially altered thereafter without the court's knowledge or consent.
At Lang Michener, documents that require a signature upon delivery are typically directed to the 26th floor where Lang Michener's office services are taken care of by an unaffiliated company called IKON Office Solutions. Service in accordance with rules of court upon a party for whom we are the solicitors of record is dealt with by leaving a copy with our receptionist on the 25th floor, and an acceptable proof of service is an Affidavit of Service swearing that you effected service on the solicitors of record by leaving a copy of the document with a particular person at a particular time.
In the future, if you wish to have a specific person sign upon receipt of a document, I recommend that you phone our office and someone can arrange a mutually convenient time for doing so.
I trust this is helpful to you.
I am not certain that, between the instructions for service from Lang Michener and the Rules for Service of the Small Claims Court, an ordinary, unrepresented litigant would be able to decipher what the formal law expects of him or her for service on a corporation like Rogers or a Bay Street law firm like Lang Michener, LLP.