In granting adjournment, Judge comments on difficulty of lawyering while parenting amid COVID

The work-from-home transition is a heavier burden for those with young families, say lawyers

In granting adjournment, Judge comments on difficulty of lawyering while parenting amid COVID
Nadia Campion, Jonathan Lisus

In a Superior Court decision to adjourn, rather than hear arguments on a Saturday, Justice Frederick Myers and counsel Jonathan Lisus commented on how the growing pandemic-produced trend in the legal profession of working outside of normal business hours is placing unfair expectations of junior lawyers with young children.

“What seems to be happening is that because there's been a move to the virtual world, the result is that there's no division now between home-life and work-life,” says Nadia Campion, a civil litigator at Lax O'Sullivan Lisus Gottlieb. “… The result of that is that people just think it's 24-hours-a-day now. And they call you and email you at all hours.”

“It's having a real impact, I think, on lawyers – particularly those with young families – who are currently trying to manage their practice, client demands and their children in the online learning environment.”

Through check-ins with junior lawyers at his firm, Lisus says he has seen the effect of the profession’s evolution during the last year, where the line between work and home-life has been blurred.

Ten months into the pandemic, with another ten likely ahead, he says the legal profession must reset and become more mindful of the personal circumstances of junior lawyers balancing their practice with the care of locked-down children, cramped condos, fewer outlets and the need for evening and weekend downtime.

The issue arose in a dispute between a landlord and a commercial tenant, in 713949 Ontario Limited v Hudson’s Bay Company ULC, 2021 ONSC 621,

The Hudson’s Bay Company and Sears were once anchor tenants at the Saint Laurent Shopping Centre in Ottawa. With Sears having gone out of business, the mall’s landlord is seeking to fill its 134,000-square-foot space with a call centre.

HBC objects to the plan, arguing the use of the unit by a call centre would adversely impact the retail environment of the mall. The company asserts it has consent rights over the landlord’s proposed lease.

On Jan. 19, the landlord told the Civil Practice Court it had recently entered into the lease, which had a conditional period expiring Feb. 1. The 12-day window would allow it to obtain a court order that HBC had no consent right, or that, if it did, it was not exercising that right reasonably.

Justice Myers set a Jan. 29 hearing date, noting the applicant’s Feb. 1 deadline afforded him little time to consider and write a decision. But Lisus, acting for HBC, was scheduled in court on another case that day.

Gasper Galati, acting for the applicant, argued it was urgent the matter proceed so his client would be aware of its legal rights before Feb. 1, when the conditional period expired.

Lisus and co-counsel James Renihan said the Feb. 1 deadline was contrived, that if they appealed the application would not be heard for months and that Galati had produced expert testimony to show the call-centre tenants would not impact the business of its neighbours, which shows their side had been preparing for the hearing for some time.

The court accommodates business transactions and “recognizes real time schedules,” but the applicant should have left sufficient time for HBC to prepare and for the court to consider the issue, said Myers.

Given Lisus’ scheduling conflict, and the landlord’s insistence on urgency, the issue of arguing the application on the weekend came up.

“That’s when I shared my concern with the Court,” says Lisus. “The pandemic has, for the last 10 months, involved a lot of that. As the normal boundaries around work and home have blurred or dissolved, timelines have evaporated. Justice Meyers’ decision is a clarion call for us to be mindful of the effects of the pandemic on all stakeholders in the justice system.”

“Young lawyers, who have children at home during the week, and have to now supply them with the curriculum and feed and clothe and entertain them – and practice law and do their jobs – asking them to give up their weekends to do litigation work is very difficult. And that's not something I'm prepared to do.”

Myers decided there was no objective urgency. He appreciated the applicant’s desire to get a ruling before Feb. 1, but “all contractual negotiations involve balancing of risks and benefits,” he said. The landlord was prepared to confirm the call centre’s lease with his decision, despite the possibility his would not be the final word from the courts. “That position represents its risk tolerance,” said Myers.

Without objective urgency, the applicant must bring a proceeding that is fair to the respondent and the court, he said. To ensure HBC had the counsel of its choice available, and to not unnecessarily burden both parties, the judge and court staff, Myers adjourned the matter to Feb. 4.

“The court takes very seriously issues of health and wellness of practitioners, members of the judiciary, and court staff during the pandemic in particular. While lawyers and the courts are in a service business, there has to be a brake applied to service providers’ willingness to compete themselves (or their juniors) into unhealthy states in the ordinary course of business,” said Myers.

“Recognizing that young counsel and staff may have other responsibilities or just need down time does not impair access to justice provided that everyone understands the need to make personal sacrifices when truly urgent circumstances arise.”

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