Ontario’s legal regulator is proposing significant changes to the fees lawyers take when they refer clients and to the way legal services are marketed to the public.
A Law Society of Upper Canada committee released a report Tuesday recommending referral fees — money paid when one lawyer refers a client to another lawyer — either be banned outright or capped.
The report, by the Advertising & Fee Arrangements Issues Working Group, also proposes curbing or banning the use of paid-for, often misleading awards; and prohibiting practitioners from marketing services they don’t intend to provide — a practice critics say would put an end to so called brokerage houses that draw in clients with flashy ads only to refer them out for a fee to lawyers at different firms, often without the client’s consent.
“(Lawyers) should not be advertising a service that they are not intending to perform,” the report states.
Malcolm Mercer, the chair of the law society working group, said “the principal concern about referral fees was about the effect on injured people.”
“There appears to be a substantial lack of transparency when injured people are looking for a lawyer. It is not clear to them that referral fees are earned in that process.” These referral fees, paid by the lawyer who will ultimately handle the case, can range as high as 30 per cent of the overall fee according to the committee and its members have concerns that those payments limit the lawyer’s ability to properly represent the client.
The working group’s proposals, which will be voted on during the law society’s convocation meeting Thursday, come on the heels of a Star investigation into the referral fee and marketing practices of Ontario’s personal injury lawyers.
In one story, the Star looked at law firm Diamond & DiamondDiamond & Diamond and found that for many years it has been attracting thousands of would-be clients and then referring cases out to other lawyers in return for sometimes hefty referral fees. Along the way the firm’s marketing, which has included women in tight T-shirts and ads above the urinals at the Air Canada Centre, has raised the ire of the law society, clients, and some lawyers. Diamond & Diamond maintains it has a growing number of lawyers working cases at the firm, but would not say how many cases are referred out.
In another story, the Star showed that the world of personal injury advertising is like a “wild west” with many lawyers apparently breaking the rules designed to prevent false and misleading marketing. The Star found that more than two dozen Ontario personal injury law firms described themselves as the “best” or “#1.”
The Star also found that for years, lawyers working on contingency for accident victims — “you don’t pay unless we win” — have been “double dipping,” taking more money from their clients than the law allows. As a result, the Star story said, many Ontario residents have been overcharged thousands of dollars and likely do not know it.
The law society report on advertising and fee arrangements does not make recommendations on contingency fee agreements and states that the working group continues to explore that issue.
When it comes to referral fees, the working group’s view is that there are “significant issues” with the current operation and “apparent non compliance” with existing rules. Currently, the law society allows referral fees if the client consents, the fee is reasonable and does not increase the client’s bill.
In its December investigation, the Star heard from some clients who called Diamond & Diamond after an accident and alleged the firm passed their personal details to other firms without permission, something that, if it happened, would be a breach of professional rules. Diamond & Diamond has denied these allegations and through its lawyer stated that the firm abides by all law society rules.
The law society report, which does not name any lawyers, says the working group’s information suggests that “clients are not sufficiently aware of the fact that they are being referred to another lawyer, that there is a referral fee, or the quantum of the fee” and the committee recommends either banning the fees altogether or regulating the practice, possibly capping referral fees at 10 per cent of the total fee.
One concern about banning fees altogether would be that it would lead to undisclosed “cash” referral payments, the report says.
Referral fees, which can today range from 15 to 30 per cent of what the lawyers charge when the case settles, can vary depending on the seriousness of the client’s injury, the report says.
But the severity of injury doesn’t necessarily mean more work for the lawyer and in many cases, the report says, the amount received by the referring lawyer could be “seriously disproportionate” to the value provided to the client. The Working Group favours a fee cap in the range of 5 to 10 per cent of the net legal fee.
The report states that Working Group has “significant concerns” that the lack of transparency” about referral fees has been fuelled by misleading advertising and recommends modifications and additions to the Rules of Professional Conduct that govern how lawyers behave.
One lawyer the Star researched made impressive sounding claims on his website, informing visitors he had been voted “#1 in Client Satisfaction” and “#1 Personal Injury Law Firm” by a group called “Elite Lawyers Ontario.”
The Star discovered there was no registered business with that name. There was, however, a website called elitelawyersontario.com. that was registered in 2015 by the lawyer who made the claims.
Rather than scrapping the existing rules and starting over, the committee recommends giving clearer guidance to lawyers on how to advertise in ways that don’t mislead, confuse or deceive the public.
The committee’s recommendations include modifications and additions to the Rules of Professional conduct, which govern lawyer conduct.
The modifications include providing examples of marketing that contravenes the rules, for instance, failing to disclose “a practice that the lawyer has of referring clients for a fee,” failing to disclose what type of professional — lawyer or paralegal — will provide the services, and “bait and switch” techniques where clients are drawn by prices or services that differ from those provided.
Particular care should be taken when it comes to using awards in marketing, the report says. Awards that contravene the rules are ones that do not genuinely reflect the performance and quality of services provided, are not part of a “reasonable evaluative process,” are “conferred in part as a result of payment of a fee” and contain superlatives, such as “best” and #1. One solution, the report suggests, is to have lawyers inform the public when an award the lawyer received has been paid for.
Hussein Ali Sumaida says Canada is the only safe haven for him even if he spends the rest of his life here without legal status.
A former double agent for the Israeli intelligence service and Iraqi dictator Saddam Hussein’s regime, the now 52-year-old Hamilton man said his life would be in danger if he was sent anywhere in the Middle East.
Canadian officials have been trying to remove Sumaida ever since he arrived in Toronto in 1990 for asylum and was deemed inadmissible to the country a year later for his “espionage” activities that they said made him complicit in crimes against humanity.
In fact, Ottawa did deport him once to Tunisia — the birthplace of his Iraqi diplomat father, where he himself had never been — in 2005, but Sumaida assumed a false identity, “Brandon Timothy Casey,” and returned on an emergency passport.
After living a low-profile life over the last decade, raising a family with a job in construction, Sumaida said he recently got a letter in the mail informing him that a pre-removal risk assessment had been initiated to determine if it’s safe for him to be deported to Tunisia again.
“I just want to stay alive in Canada, even with no status. Just don’t make me go back there and be tortured,” Sumaida told the Star. “It is just not fair to leave somebody in limbo for 27 years. We are not animals.”
Sumaida was born in 1965, the son of Ali Mahmoud Sumaida, a trusted member of Hussein’s Baathist party and a former diplomat under the regime. The younger Sumaida attended school in England and knew the notorious Iraqi leader’s sons, Uday and Qusay.
For many years, he was an informant for the Iraqi secret police, the “Mukhabarat” and spied on members of the Al Da’wa opposition party in the United Kingdom, according to the Federal Court decision in his previous removal proceedings in 2005.
He acted as a “mole” and personally participated in exposing 30 to 35 persons and their families to probable torture an executive, said the decision.
Later, the court said, Sumaida switched sides and worked for Mossad, the Israeli secret service, and spied on members of the Palestine Liberation Organization until he felt he wasn’t safe anymore doing the job. Once again, he changed sides to snoop on those targeted by the Mukhabarat.
He first arrived Canada in 1990 and sought asylum. The refugee board at the time concluded he had a well-founded fear of persecution in both Iraq and Tunisia, but the claim was denied. He then applied to stay in Canada on humanitarian grounds but was also rejected.
In 2005, after years of appeals and challenges in courts and tribunals, Sumaida was deported to Tunisia, where he claimed he was tortured by local officials as soon as he got off his flight.
“Life in Tunisia was intolerable,” said Sumaida. “I couldn’t see what was going to happen one day to the next. By the summer of 2006, I made the decision to find a way to flee Tunisia.”
Since he was on the “no fly” list, Sumaida said he drove to the Algerian border and walked across before making his way to Algiers to board a flight to Amsterdam. From there he said he “went to work using my old training,” assuming a false identity and convincing Canada’s embassy in The Hague to issue him an emergency passport. He returned Toronto on August 28, 2006.
After his return to Canada, Sumaida was convicted of using a fraudulently-obtained passport to circumvent the immigration law to enter the country, making him inadmissible for serious criminality.
Sumaida said his long battle against his deportation has taken a toll on his marriage. Now a father of three, he married his third wife in 2015. His mother and two sisters all were granted asylum in the United States based on his case, he said.
Due to his precarious status in Canada, Sumaida hasn’t been able to leave the country, even to attend his mother’s funeral in Detroit last July, which he watched online via a family member’s smartphone feed.
“I couldn’t go and say goodbye to my mother,” lamented Sumaida. “It’s like sitting in a prison in Canada, but it’s still better than Tunisia. I’m 52 now. I can’t take the beating and torture anymore.”
In a lengthy letter to Sumaida in late January, the Immigration Department concluded it is possible he could be tried in Tunisia for crimes against the state, offences that are punishable by death. However, it said progress has been made in that country in terms of the dismantling of the old state security apparatus.
“The focus of the replacement organizations is on particular threats from Islamic terrorism. Historical concerns about the Israelis dating from the time when the Palestine Liberation Organization was based in Tunisia would no longer appear to be of significant interest or concern,” the letter said.
“These developments bode well, should you be removed to Tunisia in future and would suggest that you would be unlikely to face risk of torture or ill treatment.”
But Sumaida argued immigration officials don’t understand the deep hatred Arab countries have against people who collaborate with Israel.
“The word ‘Mossad’ is the most feared and hated word. Throwing anyone in the street of any Arab city who is related to the Jewish state would result in nothing less than a lynching mob. How can I possibly get you to understand this from behind Canada’s safe, loving multicultural borders?” asked Sumaida in an interview.
Immigration, Refugees and Citizenship Canada confirmed Sumaida has made numerous attempts to remain in Canada, seeking asylum and twice applying unsuccessfully for permanent residency here on humanitarian grounds. He can be deported pending the outcome of the pre-removal risk assessment, said a spokesperson.
Sumaida was given until March 20 to respond to the Immigration Department’s letter.
Environment Canada has issued a fog advisory for much of the GTA, including Toronto, Hamilton and the regions of Peel, Halton, York and Durham.
According to a statement released by the weather agency around 4:30 a.m. Wednesday, the fog may cause severely reduced or near-zero visibility in some areas, which may make the morning commute hazardous.
?The visibility will improve by mid morning as the dense fog dissipates,? the statement said.
Wednesday?s temperature is expected to peak at 13 C, the forecaster says, breaking the 1981 record of 11.8 C. The overnight low will be 9 C with a 40 per cent chance of showers.
Thursday may have a high of 16 C, once again breaking the 14.9 C record set on Feb. 23, 1984. The overnight temperature will dip down to 3 C with a 30 per cent chance of rain.
The warm streak is expected to continue until the weekend. Friday is expected to have a high of 9 C with a 60 per cent chance of showers and a nightly low of 7 C with rain in the forecast.
Saturday will also be rainy with a high of 12 C, but that?s when the warm weather is expected to end. Saturday?s overnight will be -4 C with a 60 per cent chance of flurries, Environment Canada predicts.
Sunday?s forecast high is 2 C and the overnight low is expected to hit -6 C.
The balmy weather we?ve been enjoying this week is the result of a warm air flow from the south, according to Environment Canada meteorologist Geoff Coulson.
This time of year, Coulson said, the air flow comes predominantly from the north or north west, and is much colder, but the flow mass shifted last Friday, bringing in warm air from the south.
Saturday morning may feel mild as a result of lingering warm air, but as it begins to dissipate and cold air moves in, the weekend will feel significantly colder.
Despite the change, weekend temperatures will still be a few degrees above the seasonal average, which normally hovers around the 0 C mark.
A teacher who is accused of disrupting a vaccine clinic in a high school cafeteria, telling students vaccinations could lead to death, appeared at a disciplinary hearing of the Ontario College of Teachers on Tuesday.
Timothy Sullivan is accused of professional misconduct by the college. The hearing notice from the college says he “told students not to get vaccinated and/or suggested that they should not get vaccinated,” and told students “that they could die as a result of the vaccination” on March 9, 2015.
Sullivan, a science teacher in the Grand Erie District School Board who was representing himself at the hearing, said he did warn students of the risks associated with vaccines.
The name of the school is under a publication ban to protect the identities of students.
“I teach science,” Sullivan told the Star. “You don’t just teach one side of the story.”
But he denied the college’s allegations against him and said his issue is with informed consent, rather than vaccines.
Sullivan told the Star that he is “pro-informed consent, pro-asking questions, not an anti-vaxxer.”
“Informed consent is the reason I’m here,” Sullivan said. “It’s embarrassing really that I didn’t know about the effects as a parent, as a teacher, as a biology teacher. I was unaware of the severity of some of the side-effects.”
Angela Swick, a registered nurse with the Haldimand-Norfolk Health Unit, who was administering vaccines at Sullivan’s high school on the day of the incident, testified he visited the clinic three times.
During his first visit to the clinic, Swick testified he asked for the inserts included in each vaccine box. Students were receiving vaccines for polio, diphtheria and other diseases that day, Swick said.
“But his tone and manner was abrupt and left us with an unsettled feeling,” Swick said. “He said something like ‘I hope you’re letting these students know these vaccines can cause death.’ I remember feeling threatened.”
Swick testified that she informed the principal of the school at that time, Brian Quistberg, about Sullivan’s behaviour. Quistberg said he visited Sullivan’s class and asked that he not go back to the cafeteria, where the clinic was being held. Then, he locked the doors to the cafeteria closest to Sullivan’s classroom and checked up on the clinic regularly throughout the day.
During his second visit to the clinic, Sullivan “asked kids if they knew what was in this vaccine and shouted at them not to get it,” according to Swick.
“One student had mentioned to us that he wasn’t surprised that Sullivan would do this,” Swick said. “He’s been known to talk to his class about vaccines and not to get them.”
Concerns about Sullivan bringing up vaccinations in class have been expressed by both students and parents before, according to testimony by Quistberg. One incident that Quistberg notified the school board about occurred earlier in 2015, when one student left Sullivan’s class in tears after giving a presentation on vaccinations. An email sent by the student’s parents to Quistberg said Sullivan “argued the information was incorrect” and his “anger level escalated.”
During his final visit to the clinic that day, Swick said Sullivan accused her of hiding information about the vaccines and was “very fixated on the fact that vaccines could cause death.”
During his harried cross-examination, Sullivan extensively listed rare side-effects of the vaccines that were being administered that day and asked Swick if she informed students about rare but potentially dangerous side-effects. Swick said she notifies students about the most common side-effects and will mention certain side-effects if a student’s answers to her screening questions make it relevant to do so.
A formal meeting between Sullivan, Quistberg, the vice-principal and union members was held after the events of March 9, 2015, Quistberg testified, to address Sullivan’s actions, which were “over the line.” Sullivan was suspended on April 15, 2015, for one day without pay as a result.
“Clearly it is not the teacher’s job to address students lined up to get vaccinations,” Quistberg testified. “That is a parent’s decision. That, to me, is outside your role.”
If the complaint is upheld Sullivan could face a number of penalties, including having his teaching certificate suspended or being fined up to $5,000.
The hearing is scheduled to last two days.
William Jack woke up in the middle of the night last month as he often does. This time, though, he rolled over and went back to sleep.
That's when he knew that after more than two years of turmoil, he was finally home. The fact that the roof over his head belongs to someone else only added to his peace of mind.
William and his wife, Mary Taylor, are among a growing number of Toronto area downsizers, who are choosing to rent rather than buy a retirement nest. It is a choice, they say, that can be physically, mentally and financially liberating.
The couple — he's 71, she's 69 — are healthy, vibrant people. But a couple of years ago, their two-storey home of 32 years with its reverse ravine lot was "just consuming too much time and it was absorbing huge amounts of energy that we wanted to use in other ways," said William.
"There were rooms we didn't go into," said Mary.
"We watched both our parents go through this downsizing exercise. I swore I would never do to anyone what my parents did to me. It was a nightmare," said William.
"We wanted to leave while we still could — gracefully," said Mary.
Royal LePage realtor Desmond Brown helped sell the couple’s east-end home and, in the end, he was the one who helped them find the two-bedroom, 1,800-sq. ft. condo they have been renting near the lake since the fall.
The emotional and financial decision to rent rather than buy is becoming more common, said Brown.
Clients like William and Mary, "have had a really good run by owning their own homes for many years," he said.
"They've accumulated a lot of equity. They have a feeling that the market is going to go back down again and all the benefits of this great market are going to be lost if they don't cash in," said Brown.
At the same time, these home sellers can't necessarily see spending $1 million or more, plus maintenance fees, on a condo.
"Yes, I was incensed when I saw these places for the same amount of money as our house. How could that possibly be," said Mary.
But, she said, "It doesn't make sense to rail against the market. That's the market, so you accept it or not."
Initially they were open to renting or buying.
"Buying any of the units we looked at would have consumed a huge percentage of our net worth. You don't want 50-, 60-, 75-, 80 per cent of your net worth in one piece of real estate. It's just too risky," said William.
"The price of the condominiums we were looking at went up by $20,000 a month or more," said Mary.
The couple pays about $4,200 a month in rent. It might sound like a lot but they write only three cheques a month — rent, hydro and cable. When they lived in their house, there were 15 to 20 regular expenses.
Gone, they say, are the bills for a security system, for chimney repairs, sewer connections and maintenance agreements on appliances. Even firewood cost $500 a year.
The condo is the third rental for the couple since they sold their house. The first summer they rented a place in Prince Edward County and then they moved to the west end for a year. But they missed the east end.
"We realized community was much more important than we thought. The cottage was isolated and (the west end) place was so transient you couldn't have a community," said Mary.
Now they live in a building where they know other members of their yacht club and they enjoy bird-watching near the lake.
Their apartment is decorated with souvenirs of their travels but there is no granny vibe.
It's the type of high-end rental that can be difficult to find. Apartment hunting is not particularly lucrative for realtors even if they can find something suitable among the few leases on the Multiple Listings Service.
In the hot Toronto property market, renters are increasingly in the same position as home buyers. They have to compete, sometimes by offering higher rents or cash upfront.
"We were paying $3,750 (in their previous west-end apartment) and when (the owner) listed it on MLS there was a bidding war and she ended up getting $4,500 a month," said William, an actuary and former IT executive.
Helping clients find a rental is all part of the service Brown provides when he has helped someone sell a home. He found this couple's condo by word-of-mouth. But he acknowledges the searches can be challenging.
"When you're spending up to $5,000 you're going to be picky so finding the right one can take some time," said Brown.
Mary says they knew they were home as soon as they walked through the door of their condo. But that was after they had looked at a lot of places — many were "appalling," said William.
Is renting a condo saving them money on a monthly basis?
"Probably not. But it isn't costing us more," said William. He says they have taken the proceeds from their home sale and invested the money.
Releasing the equity on your house can actually generate enough cash flow to cover rent, agrees Scott Plaskett, CEO of Ironshield Financial Planning.
For people rich in equity but cash poor, renting can give them the freedom to pay for some of the extra things they want in life. It's all very well to watch your home's value appreciate, but you can't eat a doorknob, he said.
If the decision to rent or buy a smaller home is a financial wash, he advises his clients to go with the better emotional fit. That frequently depends on whether they are comfortable giving up the control of owning their own place or whether they really need the cash to cover the cost of enjoying their retirement.
But Plaskett warns retirees to be aware that the economic environment in which they are investing the equity they have earned on their homes has changed.
"We've never really existed in an environment where we've had wealth with interest rates this low," he said.
If you're going to rent and invest your home's equity you need to look carefully at where you're putting that money so you're not seeing your old age security benefits clawed back.
"Now you have all this money that's being released from one of the legal tax shelters in Canada into a non-sheltered environment," said Plaskett.
When their abundant garden became too much to manage, Jane and Bill Martin, 79 and 80, didn't even consider buying another home.
"We don't want the responsibility. (With an apartment) you can close the door and go away. We just didn't want to own again," said Jane.
Experienced apartment dwellers, the Martins raised their kids in an east end rental.
They only bought their house south of Scarborough General Hospital because an accountant advised it as a wise investment, said Jane.
When it came time to move, it took a couple of months viewing between 15 and 20 apartments ("From the worst on up," said Jane.)
"The ads look good but when you go and look at the place. . . " she said. "Most condos you're talking 700 to 900 sq. ft. That won't do."
They found 1,230 sq. ft. with two bedrooms, two bathrooms and two balconies for $1,882 a month near Cummer and Bayview Aves.
The TTC is outside the door and conveniences such as a drug and grocery store, banks and the post office are right there.
They're not used to the shopping in their new neighbourhood yet. It feels like a long way to big department stores after living five minutes from the Scarborough Town Centre for so many years.
They still go back to their old neighbourhood butcher.
"We had a lot of good friendly neighbours so you miss them," Jane said. "Every now and again we make a little excursion day and head down there and do some shopping and get some haircuts."
Laurie Bell has been downsizing seniors for five years. Lately, she says, she sees a trend to renting rather than buying among people who can still live independently.
One couple actually rented a condo to see if they would like the lifestyle.
In two other cases the reasons were financial, said Bell, who has a background in mental health and, at one point, even sold real estate.
"When the person's significant major asset is their house, they're looking at how they can move, get rid of the maintenance," she said.
"They just want to know where they stand financially. It's frightening to look at renting a condo because it might just be for a year."
More seniors want to maintain their autonomy and avoid relying on their children or other family members.
"They've seen it not go well if people do wait too late and there's been a precipitous incident," said Bell, whose company is called Moving Seniors with a Smile.
Services like hers take a lot of the physical and emotional stress out of the downsizing process.
There is often 30 or 40 years' worth of possessions to sort through, which can be emotionally taxing because her clients can't keep it all.
She also has a coterie of reliable service providers: movers, junk removal companies, even shredders for paper work.
Bell describes it as a three-day process. The first day is spent packing, the second day the client's belongings get moved and the third day they get the new place set up.
"They can have friends over for cocktails by 5 p.m."
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