BARE BONES BRIEFS | OCA: ineffective lawyering can include bad advice on whether to testify | OCA: Police can’t investigate impaired driving on private property | OCA: Interest owing protected by CLA trust fund | Standard NDA approaches reality | Best law firm webinars and bulletins

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By Julius Melnitzer | June 7, 2021

OCA: COUNSEL’S FAILURE TO EXPLAIN BLENDED PROCEDURE IMPACT VITIATES CONVICTION

The Ontario Court of Appeal has ruled that an accused who testified and made what amounted to a full confession on a voir dire should have his conviction overturned because counsel failed to advise him before agreeing to a blended procedure that rendered the accused’s testimony admissible on the merits of his case.

Through a lack of proper professional advice, coupled with a failure to consult and obtain instructions, the appellant chose to testify on the voir dire, not knowing that his evidence would become the functional equivalent of a guilty plea, or a sworn confession, as his counsel characterized it on appeal.

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OCA: REASONABLE SUSPICION OF IMPAIRMENT MUST OCCUR ON PUBLIC PROPERTY

Police officers who have no reasonable suspicion that connects a driver to any particular crime cannot conduct a sobriety check once the driver has turned onto private property. An impaired driving conviction based on such a stop, the OCA ruled, must be overturned.

The fact that driving is a regulated activity must be balanced against the heightened liberty interest at one’s own private property. Driving on highways is a highly regulated activity, and drivers expect that the rules of the road will be enforced. By contrast, at home, the individual has no expectation that the police, without any suspicion of wrongdoing or any particular safety concerns, may enter onto their driveway and arbitrarily detain them.

Related Article: Ontario’s lockdown: a quick guide to your legal rights

OCA: INTEREST OWING IS PART OF CONSTRUCTION LIEN ACT (CLA) TRUST FUND

The proper interpretation of s.8 of Ontario’s CLA, which establishes a trust fund for subcontractors and others lower on the “pyramid” of claimants, is that the trust embraces any interest due on the contract price. According to the OCA, interest owing is part of the trust fund created by s. 8(1) and is subject to the restrictions on the use of the trust funds stipulated by s. 8(2).

I would add, on this point, that we are not speaking here about lien rights. We are speaking about trust funds. The two are separate concepts under the Construction Lien Act. Liens give subcontractors and suppliers the right to assert a claim directly against the property, whereas trusts serve to protect the interests of subcontractors and suppliers by protecting funds that are owed to, or have been received by, the contractor.

Related Article: B.C. Supreme Court holds non-trustee liable for pension losses

OneNDA PROJECT PUBLISHES FIRST TEMPLATE

The U.K.-based OneNDA project has published a three-page “baseline” version of a “universally standardised” non-disclosure agreement (NDA). Some 1,000 companies, says the Law Society Gazette, are set to adopt the template by year’s end. Allen & Overy, Linklaters, Slaughter and May, Norton Rose Fulbright and Gilbert + Tobin are among the prominent law firms supporting the initiative. In-house counsel from Barclays, American Express, Deliveroo, EY, Airbus and Bupa are also participating. The project will now move to its operational stage, which includes drawing up house rules for the template’s use, and ensuring that the document is only amended within acceptable limits.

Related Article: Universal NDA coming?

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Julius Melnitzer is a Toronto-based legal affairs writer, ghostwriter, writing coach and media trainer. Readers can reach him at julius@legalwriter.net or https://legalwriter.net/contact.

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