Research and Drafting- Both a Memo and Pleadings
Our client had taken over a file shortly before the scheduled trial involving a number of intertwined common-law issues and a complex array of remedies. We produced (1) a list of relevant cases for the purposes of trial brief preparation; (2) a comprehensive analysis, in the form of a long memorandum, of all issues at play with the relevant case law identified and summarized; and (3) drafted the “Legal Basis” portion for a proposed Amended Notice of Claim.
Anticipatory Preparation
Our client anticipated being served with a summary trial application as soon as he returned from vacation. The issues concerned the frustration of a contract of purchase and sale and relief from forfeiture with respect to a deposit that had been paid. The issues raised interesting questions regarding the effect of amendments to the Personal Property Transfer Act after the contract of purchase and sale was entered. He wanted OnPoint to research the law with respect to his client’s main defences and prepare a draft application response so that when he returned from vacation he was prepared to respond to the anticipated summary trial application.
Settlement Agreements
Our client represented one of two respondents in a family claim. Without her knowledge or advice, the person she represented entered settlement negotiations and signed off on minutes of settlement that were not in his best interest. She requested a research memorandum considering the enforceability of the minutes of settlement in order to prepare for a possible application. The law regarding settlement agreements in family proceedings involves the principles of contract interpretation, agency, and statutory interpretation. On the facts in this case, tenable arguments could be made that no binding agreement was ever reached, and that the circumstances surrounding negotiation and execution of the agreement unfairly favoured the claimant such that a court could exercise its discretion to set aside the agreement.
Apportioning Liability
We assisted with a personal injury file involving multiple defendants and likely contributory negligence on the part of the plaintiff. The client required a couple examples of cases where liability was apportioned between the plaintiff and defendants in similar fact scenarios and guidance on how the defendants’ liability would be apportioned by the court. We located cases that had similar facts for him to refer to at the mediation and provided him with recent case law on the apportionment of liability under the Negligence Act. For this straightforward assignment, we provided the information in an informal report that included case briefs.
Analyzing a Document
Our client required assistance with the construction of a trust which contained two possibly contradictory provisions resulting from an apparent error in drafting. We conducted an analysis of the contentious provisions in the context of the trust as a whole, and developed a legal argument to support a favourable construction of the trust, buttressed by the leading secondary authorities, old English case law, as well as current Canadian cases.
Drafting Argument
Our client was swamped dealing with the legal and factual aspects of a complex summary judgment application. In the midst of preparation, he realized he could bolster his other arguments by relying on the presumption against interference with vested rights. He requested us to research the presumption and its specific application to the facts of the case. We drafted the law in argument form, and he was able to insert it directly into his argument in time to meet the deadline for filing.
Trial 911
Our client requested research assistance on substantive breach of trust issues in advance of trial. As the trial proceeded, we provided additional research on evidentiary, damages and costs issues when they arose. Because we were requested in advance to remain available that week, we were able to provide answers to questions posed after a day of trial before the next day’s hearing began. While our client was arguing in court, we were able to work behind the scenes to prepare the trial brief on all issues raised during trial. Our client succeeded in obtaining both a punitive damages award and special costs for his client.
Improving Pleadings
In complex commercial cases involving economic torts, personal liability of directors and officers, and claims of fraud and conspiracy, the courts require a certain degree of specificity in pleadings and claims are vulnerable to preliminary attack. Our client, faced with a summary judgment application in a conspiracy case, asked us to conduct initial research on both the substantive law as well as the standards required by the courts, and provide a detailed analysis of the pleadings. Our client incorporated the amendments we suggested, and opposing counsel withdrew the application after receiving the amended pleading.
Providing New Perspective
We were asked to research whether a judge retains supervisory jurisdiction over a society after having delegated his supervisory authority to an officer of the society in an earlier order. Taking a broader view of the matter, we queried whether the matter might be more appropriately argued as res judicata, and found an old SCC case to support that position in nearly identical circumstances. This aspect of the case was decided in the client’s favour on this basis.
High-Income Spousal Support Review
Our client received a detailed spousal support settlement offer from opposing counsel. Her client was taken aback by the offer because he had already agreed to an equal division of over $10 million in family assets. Our client asked us to assist her with some research to advise her client and negotiate with opposing counsel. We prepared a summary of the basic principles in the leading high-asset high-income cases, highlighting useful points for negotiation, and prepared bullet point digests of similar fact cases which were easy to review and compare.
Bridging the Gap
Our client left a large firm to start his own practice at a hectic time when two of his files were coming before the court. He requested assistance with research and drafting of a complex summary trial brief on defamation with less than a week turnaround time. With our help, he was able to meet his obligations with the same level of research support he would have had in the firm.
Freeing Up Time
One of our clients loves the courtroom, but abhors legal writing. Over time, we have built an excellent working relationship in which he retains us to write his court materials even where the research focus is minimal. He sends the relevant court materials to us along with a memo outlining his desired approach and a timeline for completion, and we draft the argument, identifying areas where further clarification is needed. After he reviews the draft, we have a phone conversation to discuss and agree on approach, and then we fine-tune the argument. After one appeal hearing on an estate case he reported back the following: “They had obviously read your Factum and what more did I need to do? … Mercifully I wasn’t called on, so I didn’t have a chance to snatch defeat from the jaws of victory.”
Adopting a Flexible Approach
We were asked to research whether there was any chance of success against an employee acting on behalf of the defendant employer in a wrongful dismissal action. A quick review of the leading texts indicated little to no chance of success, so we halted research and checked in with the client. He determined that there was no reason to continue, only incurred minimal cost for the research, and was able to avoid costs being assessed against his client by pursuing the claim.
Building on Valuable Research
We were requested to prepare an opinion on spoliation of electronic documents in order to assist our client in advising her client on its internal policy. Recognizing the value of this research in a developing area of law, we presented on the topic alongside our client at a prestigious conference and also published on the topic in a legal journal.