Ontario – Is it possible to bring a motion for security for costs on an application?

Yes. The defendant or respondent in a “proceeding” can bring motions for costs under sub-rule 56.01(1) of the Ontario Rules of Civil Procedure. The word “proceeding” is defined in r. 1.03 to include applications. The court may pass an order for security for costs where the moving party satisfies at least one of the grounds in sub-rules 56.01(1) (a) – (f), which are that:

(a)  the plaintiff or applicant is ordinarily resident outside Ontario;

(b)  the plaintiff or applicant has another proceeding for the same relief pending in Ontario or elsewhere;

(c)  the defendant or respondent has an order against the plaintiff or applicant for costs in the same or another proceeding that remain unpaid in whole or in part;

(d)  the plaintiff or applicant is a corporation or a nominal plaintiff or applicant, and there is good reason to believe that the plaintiff or applicant has insufficient assets in Ontario to pay the costs of the defendant or respondent;

(e)  there is good reason to believe that the action or application is frivolous and vexatious and that the plaintiff or applicant has insufficient assets in Ontario to pay the costs of the defendant or respondent; or

(f)  a statute entitles the defendant or respondent to security for costs.

R. 56.03(2) says that “a motion for security for costs may be made only after the respondent has delivered a notice of appearance and shall be made on notice to the applicant and every other respondent who has delivered a notice of appearance”.

The jurisdictions conferred on judges and an associate judge to hear motions under sub-rules 37.02 (1) and (2) are wide enough to cover a motion for the security of costs.

Foreign Professionals Advising Ontario Clients May Be Sued in Ontario

Published in the National Magazine of the Canadian Bar Association as When the Directing Mind is Abroad

Kyko affects foreign law firms advising clients in Ontario from overseas. It may in future possibly serve as a precedent to hold foreign legal or other professionals accountable in other Canadian provinces for contractual breach and tort committed in the course of advising Canadian clients from overseas.

The Court of Appeal of Ontario (“ONCA”) recently upheld a decision by an Ontario court to assume jurisdiction over a law firm in India in an action by a client in Ontario for breach of contract and tort. In so doing, ONCA sent out a clear signal to foreign legal professionals advising Ontario clients that it would not sit back merely because a professional is not in, and is not governed by the professional standards in, Ontario.

Kyko Global Inc. v. M/S Crawford Bayley & Co.^[1] involved an action by Kyko Global Inc, a corporation in Brampton which lent funds to a corporation in India against a guarantee sourced from a publicly-traded Indian company. Before accepting the guarantee, Kyko procured a legal opinion from an Indian law firm confirming that the guarantee was enforceable in India. The law firm failed to disclose to Kyko that the loan was being brokered by a cousin of one of its partners.

After the loan went into default, the guarantee turned out to be forged. After obtaining a default judgement against the guarantor in Ontario, Kyko sued the Indian law firm in Ontario for negligence, misrepresentation, and breach of contract. In response, the law firm brought a motion challenging Ontario’s jurisdiction while contending that the dispute ought to be agitated in India – not Ontario. That motion was denied. The law firm appealed on the grounds that the motion judge had misapplied the test for jurisdiction simpliciter and the analysis for forum non conveniens laid down by the Supreme Court of Canada in Club Resorts Ltd. v. Van Breda ^[2].

According to Van Breda, a Canadian court^[3] is to employ a two-staged “real and substantial connection” test to determine whether it can assume jurisdiction simpliciter over a dispute. In the first stage, a plaintiff is required to identify factual aspects that presumptively connect the dispute to the province. The court presumes jurisdiction if one or more “connecting factors” are identified. In the second stage, the burden shifts to the defendant to rebut the presumption by identifying factual aspects that point to a weak relationship between the dispute and the province. A failure to rebut leads to the assumption of jurisdiction, in which case the action proceeds^[4]. 

Regarding forum non conveniens, Van Breda says that courts having jurisdiction over a dispute may stay the proceeding in favour of an alternative forum that is “clearly more appropriate”^[5] and “in a better position to dispose fairly and efficiently of the litigation”^[6]. The power of stay is purely discretionary, and the court is not under any compulsion to stay even if the defendant establishes forum non conveniens^[7].

In Kyko, the ONCA dismissed the law firm’s appeal and concluded that the motion judge had properly applied Van Breda when he dismissed the jurisdiction motion.

While considering whether Van Breda was properly applied in Kyko, the ONCA agreed with the motion judge that for a presumption of jurisdiction to arise, the plaintiff’ need only establish a “good arguable case” on the facts pleaded to connect the dispute to Ontario^[8]. This will happen if the allegations in the statement of claim are not denied or are insufficiently contradicted by the defendant.

The court also held that for misrepresentation to have occurred in Ontario, it is sufficient that the legal opinion was faxed and sent to Kyko’s lawyer in, and was relied on in, Ontario^[9]. Its “directing mind” need not have received the legal opinion for it to be delivered to Kyko^[10].

The court rejected the law firm’s forum non conveniens argument that a trial in Ontario would be inconvenient and expensive for foreign witnesses while highlighting the convenience and cost-efficiency of obtaining testimony by video conferencing[11]. The court also disagreed that it is unfair to require an Indian law firm that provided an opinion to a client in Ontario on Indian law about the enforceability of a guarantee in India to defend an action in Ontario. Like Sincies Chiementin S.p.A. (Trustee of) v. King^[12] the court deemed it fair for “sophisticated legal professionals” like the Indian law firm to account for their conduct in Ontario^[13].

Kyko affects foreign law firms advising clients in Ontario from overseas. It may in future possibly serve as a precedent to hold foreign legal or other professionals accountable in other Canadian provinces for contractual breach and tort committed in the course of advising Canadian clients from overseas. That remains to be seen.

Here are some key takeaways:

1. “Sophisticated” legal professionals who advise clients in Ontario can be held accountable in Ontario^[14] for breach of contract and tort committed in Ontario.
2. Courts in Ontario will not decline to exercise jurisdiction over foreign legal professionals advising clients in Ontario merely because (a) they reside and are advising the client on non-Canadian laws from outside Canada; or (b) any judgement against them would have to be enforced in a non-Canadian jurisdiction ^[15]. 
3. Ontario courts will assume jurisdiction on actions for misrepresentations contained in a legal opinion delivered by email if the information “is received and relied upon”^[16]. The same will hold true even if the email containing the misrepresentation is first received by the Ontario client outside Canada^[17].

[1] Kyko Global Inc. v. M/S Crawford Bayley & Co., 2021 ONCA 736 (CanLII)

[2] Club Resorts Ltd. v. Van Breda, 2012 SCC 17

[3] Ibid, in paragraph 92, the Supreme Court of Canada says that Canadian courts, as opposed to Ontario courts, would be expected to recognize and enforce foreign judgements where a real and substantial connection is found. As such, the “real and substantial connection” test is followed by Canadian courts of all provinces, including Quebec (Chandler c. Volkswagen Aktiengesellschaft, 2020 CarswellQue 2932, 2020 QCCS 1202, 319 A.C.W.S. (3d) 60)

[4] Ibid at paragraph 100

[5] Ibid at para 108

[6] Ibid at para 109

[7] Ibid at paragraph 112, “… the decision falls within the reasoned discretion of the trial court. The exercise of discretion will be entitled to deference from higher courts, absent an error of law or a clear and serious error in the determination of relevant facts…”.

[8] Kyko Global Inc. v. M/S Crawford Bayley & Co., 2021 ONCA 736 (CanLII), paragraph 19

[9] Ibid at paragraph 22

[10] Ibid at paragraph 21

[11] Ibid at paragraph 40

[12] Sincies Chiementin S.p.A. (Trustee of) v. King, 2012 ONCA 653

[13] Kyko Global Inc. v. M/S Crawford Bayley & Co., 2021 ONCA 736 (CanLII), paragraphs 61-64

[14] Ibid at paragraphs 63 and 64

[15] Ibid at paragraphs 49-51

[16] Ibid at paragraph 22

[17] Ibid at paragraph 22

Vavilov – A Seismic Shift for Canadian Admin Law? An NCA Candidate’s Perspective

Originally written on LinkedIn and NCA Network Blog

While studying for my NCA exams, I came across jurists and academics who view Canadian Admin Law as being “in a state of flux”. The rapidness of its evolution in the last few decades (and the resulting confusion) is perhaps most palpable when it comes to ascertaining the standard of review a court is meant to apply when reviewing a decision of an administrative decision-maker (ADM). Many consider the recent Supreme Court of Canada (SCC) decision in Vavilov to represent a seismic shift in Admin Law. After reading the judgment, however, I am left wondering if that assessment is accurate. Without getting too technical, I will attempt to summarize why in the lines that follow.

The Canadian “Deferential” Approach to Reviewing ADMs’ Decisions

Legislatures often delegate decision-making power to ADMs, who comprise public bodies, quasi-judicial tribunals or other public authorities. Admin law applies to ensure that such delegated power is properly exercised, where courts often play a supervisory role. In some jurisdictions, reviewing courts (often superior “constitutional” courts) assume complete supervisory authority to determine what the correct ADM decision should have been and to replace a non-concurring ADM decision with the decision deemed as correct by that reviewing court (such an approach is known in Canada as “the standard of correctness”). Canadian reviewing courts, however, have a different approach.

Since 1979 (after C.U.P.E. Local 963 v. New Brunswick Liquor Corporation [1979]), reviewing courts in Canada increasingly show deference to the legislative intent behind the delegation of authority to an ADM to make decisions in certain matters. Barring exceptions, Canadian reviewing courts generally do not decide whether a decision by an ADM is correct or not. Instead, they take a step back and merely consider whether the decision was reasonable or not (aka “the standard of reasonableness”). This allows reviewing courts to uphold the doctrine of separation of powers by being more deferential to the autonomy of the legislature while at the same time keeping the courts’ supervisory role intact. It is only in exceptional circumstances when Canadian reviewing courts apply “the standard of correctness” to an impugned ADM decision.

The Pressing Confusion – When does which standard apply?

The confusion faced by reviewing courts centred around when they shall apply which of the two standards of review mentioned above. While acknowledging that the law is not articulate in this respect, SCC attempted to streamline and simplify the jurisprudence on this particular issue in its 2008 decision in Dunsmuir and in certain other subsequent decisions. In essence, a reviewing court was to undertake a contextual inquiry on the case before it in order to determine which standard of review to apply. In addition, the court was also to pay specific heed to the expertise of the ADM on the subject matter of the decision. If the outcome of the contextual inquiry did not require otherwise or if the ADM had the expertise, the court would apply the standard of reasonableness. Just prior to Vavilov, it became rarer for reviewing courts to apply the standard of correctness when reviewing decisions by ADMs.

Unfortunately, confusion still remained regarding the specifics of the contextual approach and with which standard to apply.

The Distinction Between Appeals Vs. Judicial Reviews

Before going to the essence of the SCC judgment in Vavilov, it should be noted that a decision made by an ADM can require a court to review it in two ways: (a) by an appeal to that court in accordance with an appeals mechanism mandated by legislation; (b) by judicial review in the exercise of a court’s inherent power under S96 of the Constitution Act, 1867 (per para 24, Vavilov). A comprehension of this fundamental distinction is crucial to understanding Vavilov.

The Revised Framework for Determining Standard of Review

The SCC released its judgment in the Vavilov case in December 2019. The objective that the SCC set out to achieve was to reconsider and re-simplify the legal position on the applicable standard of review for appeals and judicial reviews preferred against decisions by ADMs. In carrying out that object, the SCC in Vavilov succinctly laid down a revised framework for all appellate and judicial review courts to follow in reviewing decisions by ADMs. I have tried to capture the essence of the framework in the following step-by-step outline in algorithmic terms for the sake of simplicity. Each step below is referenced with the relevant paragraphs from the Vavilov judgment.

Concluding Remarks

In extrapolating the essence of Vavilov, it is my reading that the majority judgment of the SCC did not mean and intend to overhaul Canadian Admin Law, nor did it do so. The impact of Vavilov is only limited to the jurisprudence on the applicable standard of review. The two principal ways in which Vavilov did indeed change prior jurisprudence related to the applicable standard of review are as follows:

(a) Instead of engaging in a consideration of the expertise of the ADM and in a contextual inquiry to determine the applicable standard of review, the reviewing court shall now automatically presume that “reasonableness” is the standard of review to be applied. The presumption shall however be rebutted on certain grounds. Expertise shall no longer be relevant in rebutting the presumption.

(b) Instead of applying the standard of reasonableness to all statutory appeals and judicial reviews of decisions of ADMs, the reviewing court shall now apply “appellate standards” for any appeal made to it following any appellate provision in the enabling legislation.

Aside from these alterations, it is my reading that Vavilov merely served to re-articulate existing jurisprudence concerning the applicable standard of review. This view is echoed by the judgment passed by the two dissenting judges in Vavilov, whose dissent was grounded in their views that (a) the expertise of ADMs ought to have continued to play a part in determining the applicable standard of review and (b) the standard of reasonableness ought to apply to statutory appeals from decisions of ADMs.

Legal Practice vs. Legal Business: Contemporary Perspectives & Realities

A certain post from my senior colleague Mr. Mustafizur Rahman Khan, Barrister-at-Law (quoted in full below) touched upon the topic of the structure within which legal services are delivered in Bangladesh. This issue is rarely talked about by lawyers of any level in our country, despite being, in my view, extremely important and pertinent.

The legal profession of Bangladesh nurtures very traditional viewpoints and operates in more or less the same manner as it operated for the last 100 years. Generally, not much has changed. Legal practice has remained by and large individualistic, centered around one figurehead – a senior. The only form of teamwork to be found is when the figurehead takes assistance from his juniors. Such assistance is mainly of a borderline clerical nature, and is generally not in the form of an intellectual contribution to the work being done. Certain specialized skills and practices that the juniors have learnt and picked up through experience do come into play, and are the only things that prevents the assistance rendered by juniors from being truly clerical.

This mode of practice was perfectly suited to smaller villages and township economies, where communities play a stronger role. Service providers in a smaller community do not have to cope with much competition. Legal services is one of the most basic services and any community has a limited number of lawyers who cater to its members and are all automatically known well within the community. Word of mouth acts as a sufficient medium of advertising the lawyer’s reputation. In fact, sub-continental lawyers almost invariably come from within families having influence. The traditional structure was essentially developed and designed by them. They weren’t in the profession for the money, but for the prestige. So there would be little uniformity in how they charged for services and limited formality in how they dealt with clients.

Note that even within small communities, lawyers need to advertise. How else would people know he can provide legal services and the services he delivers?

While this mode of practice was suited to Bangladesh till the end of the millennium, the rapid (and unplanned) economic growth in Bangladesh has rendered the traditional structure largely obsolete. The economy now makes additional demands on the legal profession that it generally struggles to deliver. The economy now requires more pre-litigation, “corporate” and advisory work, the kind the traditionally structured legal practices, which are almost always focused on litigation, are not particularly accustomed to delivering. The economy now demands legal work to be delivered quickly, sometimes at the drop of a hat, and in large volumes. It requires efficient management of workloads and maintaining constant and regular lines of feedback and communication with clients at all times. It requires fluid dissemination of information to clients in general so that they know if to seek legal assistance, what to seek assistance on and where to find such legal assistance if needed. These are but a few of the aspects on which the demand for legal services has changed, and the practical and material implications for all of them are huge. Couple these with the fact that modern lawyers are in the profession to earn a good living, and not just for the prestige. It is my observation that the traditional structure is not only incapable of matching up to the demands on it by the market, but in fact, makes it difficult for lawyers to earn a decent living. This translates into an inefficient system that not only fails to sufficiently deliver its workload and compensate the service providers, but also ultimately, directly and indirectly, bars access to proper justice for ordinary citizens.

In my view, there is no alternative to viewing the profession of delivering legal services in Bangladesh as a business, and not just as a profession, where normal rules and norms of business will apply, subject to necessary regulatory oversight of course. In fact, I cannot think of any other way viewing my profession. Let us face it – every lawyer, be he a Senior Advocate or an Advocate, a junior or an intern, a figurehead of a chamber or a “lone wolf”, are in it to earn a living and do business. When you’re chiefly depending on your pursuits and activities in a particular profession to bring your food to the table, there is little scope to argue that you are not in business. Such businesses should be structured as law firms, giving lawyers of many varieties to work within it. This allows specialization, which is, as Adam Smith pointed out, a good thing.

As blasphemous as it may sound, law firms should be allowed to advertise in public and mainstream mediums within a regulated environment. As it is, all lawyers advertise in whatever way they can. Some choose to advertise through word of mouth, some through political or social activities and some through filing Public Interest Litigation. The growth in our economy has ensured that a modern Bangladeshi lawyer can no longer rely on word of mouth in order to be known and in order to inform people how they can serve them.

Contrary to what a lot of my colleagues tell me, I believe that there is a massive demand for legal services in Bangladesh, so much so, that the industry does not even nearly have enough qualified legal professionals to deliver them. There actually is an acute shortage of competent legal professionals. The legal services industry as a whole in Bangladesh lacks the required degree of professionalism – and it is in denial about such issues. In fact, it actually stubbornly refuses to evolve from its nascence.

In fact, many may consider it a blasphemy that I termed the “profession” as an “industry” in “business”. We are collectively yet to wake up to the realization that we are part of something much bigger than just a profession.

Having stated my viewpoints, I once more come back to Mustafiz Sir’s post. Mustafiz Sir, who I can hardly even aspire to emulate as a lawyer, has made a romantic portrayal of a sub-continental Senior Advocate. The portrayal is sufficient to lure any lawyer into elevating to the pinnacle of his ambitions a desire to be a sub-continental Senior Advocate. I however found his post to be hinting that the pathway to being a Senior Advocate may be mutually exclusive to the pathway to being part of a big name law firm. Such a hint, if at all present, must be addressed. I do not find any reason why a Senior Partner of a big name law firm cannot, at the twilight of his career at the law firm, come out and start the dawn of his career as a Senior Advocate, in the same mode of practice that Mustafiz Sir so eloquently portrayed. Such law firms, along with other legal professionals, will then act as instructing firms of such Senior Advocates, while they specialize in courtroom Advocacy. In my mind, I see no reason why the the two cannot comfortably sit together.

I am a legal businessman. I believe in” conducting my practice and leading my legal career within the framework of a firm. But I do not see why I too cannot, at the dawn of the twilight of my life, enjoy the privileges of a Senior Advocate. And hence I too dare to dream.

(Mustafiz Sir’s post dated 19.08.2016 was as follows:

“I am often asked by relatives who have settled abroad about the nature of the legal profession in Bangladesh. They ask about the nature of my specialisation, the firm I work in or whether I am a partner. The more inquisitive even ask about my income, and whether I charge my fees at hourly rates, do I have retainers and so forth.

I explain to them to the best of my abilities the nature of my practice. That it is more organic than structured. That I work with a Senior, but I also handle briefs independently. That the focus of my practice is litigation in the Supreme Court, though I do a bit of commercial arbitration and what passes for corporate practice in Bangladesh. That I do not have any specialisation as such, but the bias is towards judicial review and company law. That I do the odd criminal case when a white collar crime is involved. That I do the private side of public interest litigation, meaning that I represent, for my private interest, the business interest/villain in the piece. That I have even had a ship or two arrested in my time (this last bit my layperson cousins find most intriguing).

I explain to them that law firms are very much in their nascent stage in Bangladesh. I tell them that several of my contemporaries and younger colleagues (some my former students) are making bold efforts in this regard. I tell them that with the economic development of Bangladesh (I always paint a rosy picture of our future), they have good prospects, where the name of their firms will be more prominent than the principals involved. That in time, we too will have our Baker & McKenzies, Clifford Chances and Norton Roses.

Still they struggle to grasp and understand. But what they struggle to understand most, perhaps, is the near mythical figure of the Senior.

I am presently reading “The Rebel: A Biography of Ram Jethmalani” by Susan Adelman. For those of you who may not know, Ram Jethmalini, who is now 92 years old, has a legal career spanning an unbelievable 70 years and continuing, and is a Senior Advocate of the Supreme Court of India. Perhaps the most iconic, colorful and, indeed, controversial figure in the Indian legal fraternity, he famously took on Indira Gandhi during the Emergency, who forced him into exile.

In her book, Ms. Adelman refers to and quotes from the article “India’s Grand Advocates: A Legal Elite Flourishing in the Era of Globalization” published by Marc Galanter and Nick Robinson in the Harvard Law School Programme on the Legal Profession Research Paper Series in 2013.

Galanter and Robinson describe “a stratum of legal superstars in India … who are very much in demand and widely known… the most visible and renowned legal professionals” in the country. They know of no parallels of this position outside of Southeast Asia.

They explain that these grand advocates have a “nuanced knowledge of both formal and informal judicial procedure” and a reputation hard to share with juniors. They have small practices, assisted by a few clerks and juniors (the more observant will note the order in which they are mentioned). They spend most of their time in the Supreme Court and High Court, typically meeting their clients at home or even in the veranda of the Courts.

“The performance of the lawyer is overwhelmingly oral rather than written”, focusing on “courtroom advocacy rather than advising, negotiating or planning”. Their arguments may not, at first glance, appear fully developed in the written submissions, but their oral submissions are, and it is the latter which are cited by the judges in their opinions. They often appear after being briefed by lawyers who act in the capacity of solicitors, to whom they function as barristers. They charge by appearance, not by hour. They appear in a wide range of legal areas, few specializing in only one area of law.

The above perfectly describes the leading Senior Advocates of the Supreme Court of Bangladesh. What impresses me most about these Senior Advocates is their, shall we say, holistic yet practical knowledge and understanding of the legal system and its workings, and the political and jurisprudential wisdom which underpins them. They have no parallel in lawyers I have met practising in other jurisdictions, including countries of the first world. To me, being a witness to the phenomenon of the Senior Advocate has been the most intellectually rewarding aspect of my practice in Bangladesh, much more rewarding than any money I have made, for which I count my blessings everyday. To my younger friends and colleagues, in your urgency to climb the ladder of corporate practice, do not miss out on this privilege.”)

Proposal to amend the CPC 1908 to introduce the right to lodge a caveat

Problems With Existing Law & Justifications For Reform:

Legal practitioners and litigants in general face the seemingly-perennial problem of delay in courts everyday. As has been discussed by many before, frivolous litigation is a core cause for such delays. The Law Minister’s encouraging comments and commitments to reducing delay in courts must be commended. I have from my practice faced a problem when my counterpart, being the defendants in Title Suit no. 327 of 2004 preferred to file Civil Revision nos. 3962 of 2007 and Civil Revision no. 4606 of 2009 in the High Court Division against an order of the trial court rejecting the defendant’s application for rejection of plaint under O7 R11 of CPC made on two separate occasions on very similar vexatious and frivolous grounds. In another related case being Title Suit no. 352 of 2005, the same defendants preferred to file Civil Revision nos. 3962 of 2007 and Civil Revision no. 4606 of 2009 on the self-same grounds as above. In all the occasions, the applications under O7 R11 as well the ensuing Civil Revisions were decided to have been without merit and was decided in favour of my client. In my humble submission, it is clear that the applications and the Civil Revisions were filed with the ulterior purpose of delaying the disposition of the aforementioned Title Suits. The High Court Division, without any intimation to the Respondents (in this case my clients), granted Rule and stayed the proceedings of the aforementioned Title Suit till the disposition of the Civil Revisions in all the cases.

As applications brought under the revisional jurisdiction of the court pursuant to Section 115 CPC are discretionary upon the court to admit, the Law of Caveats could have prevented the aforementioned delay in the Title Suits and therefore merits discussion here. This law is absent in our Code of Civil Procedure. India has amended its Code of Civil Procedure to incorporate this law in 1996. It has been frequently seen that when a litigant loses a case in the lower court he takes the matter to the higher court and obtains a stay order without the winner of the case being given the chance of being heard in the matter. Caveat is an application made by a party addressed to the court to allow the party to be heard at the time that the opposing party may approach the said court to obtain an ex-parte order in its favour from the court. Caveat applications ensure that both parties are heard by the court at the time that the case is considered for further legal process. This in itself minimizes frivolous cases sent to the higher courts on flimsy grounds where the only objective of the petitioner is to achieve delay. It is to be noted that a system of filing caveats in matters brought before the Appellate Division is already provided for and allowed by the High Court Rules.

Suggestions:

As to possible ways to reform the law, the Indian Act no. 104 of 1976 which has incorporated necessary amendments to the Indian Code of Civil Procedure 1908 (As amended) may be considered. By dint of the aforementioned Act of 1976, a new Clause no. 148A was incorporated into the Indian Code of Civil Procedure 1908, which is as follows:

“148A. Right to lodge a caveat:
(1) Where an application is expected to be made, or has been made, in a suit or proceedings instituted, or about to be instituted, in a Court, any person claiming a right to appear before the Court on the hearing of such application may lodge a caveat in respect thereof.
(2) Where a caveat has been lodged under sub-section (1), the person by whom the caveat has been lodged (hereinafter referred to as the caveator) shall serve a notice of the caveat by registered post, acknowledgement due, on the person by whom the application has been or is expected to be, made, under sub-section (1).
(3) Where, after a caveat has been lodged under sub-section (1), any application is filed in any suit or proceeding, the Court, shall serve a notice of the application on the caveator.
(4) Where a notice of any caveat has been served on the applicant, he shall forthwith furnish the caveator at the caveator’s expense, with a copy of the application made by him and also with copies of any paper or document which has been, or may be, filed by him in support of the application.
(5) Where a caveat has been lodged under sub-section (1), such caveat shall not reman in force after the expiry of ninety days from the date on which it was lodged unless the application referred to in sub-section (1) has been made before the expiry of the said period.”

(The write-up above was submitted by me to the Law Commission on 04.09.2011 seeking to draw their attention to the matter and inviting them to propose necessary steps to the legislators in this respect. I am yet to hear from them regarding this.)

In search of Dumbledore

For the cover of the latest edition of his popular book called Constitutional Law of Bangladesh, Mahmudul Islam Sir, who is a former Attorney General of Bangladesh, chose a tastefully grim and grey picture of the Supreme Court building taken against the backdrop of an overcast sky. In his forewords to the edition, he mentions those dark clouds as he laments the present state of the constitution and how it is being practiced and applied.
The practice of law for a junior as a first generation lawyer can perhaps be compared to that of the travails of a stray puppy abandoned in the streets at birth. If it manages to survive, the puppy will not travel much, but will rather concentrate all its efforts into acclimatizing and habituating itself with the surroundings of the street he was abandoned in. It will try to claw through bullies, ward off and avoid lurking dangers and meal through leftovers in a desperate attempt to, over time, be accepted by, ironically, the bullies among it’s own species. Just as the abandoned puppy hopes in vain to find the caring shelter of a guardian, a junior lawyer desperately seeks the mentoring guidance of a senior.
Many junior lawyers I know working under seniors are still scourging around for that elusive mentoring guidance.
For my part, I was not lucky enough to be anchored under a senior for the better portion of my life as a practicing lawyer. Perhaps because I as a first generation lawyer did not realise how big a role they play shaping a junior’s professional and personal life. It naturally came to me in the beginning to regard my senior as merely my employer, until I slowly realised that they may mean so much more.
In a candid session that I once had with Anisul Huq Sir, he told me that a senior not only sets your direction in your professional life from the get-go, but also leaves his footprints on how you go about that path for the rest of your life. That the senior and his practice lives in through his juniors, that he is in essence a reincarnation of the professional life of Shahid Suhrawardi who mentored his father being the Late Advocate Serajul Huq. That others who we know to be unscrupulous in their trades are still carrying out the lessons of practice that were laid down before them by their respective seniors.
He told me that his success in politics is due to his success in the practice of law, and his success in politics shall never define his success in the practice of law.
That candid session stayed with me. I could see an imprint of the few seniors I have worked with embedded in the way I think in a manner I did not see before. It also brought to the fore one of the only two regrets that I have over my professional life. That regret is that I never got an opportunity to work with Mahmudul Islam Sir yet.
The tales that I have heard about Mahmudul Islam Sir from all around are stuff that legendary folklore is made up of. I have, for instance, heard stories of him refusing to accept (and indeed, returning!) fees paid in excess of what his charges are by insistent clients. Such honour is above everything I have seen in the legal profession. The one time I wanted to hire him for a senior brief, I took his chamber’s phone number off the net and called directly without any reference, expecting to fix up an appointment with Sir with an assistant or a clerk. I was bewildered for a second when Sir himself picked it up, and asked me about the case. After hearing it, he affectionately called me “bhai”, politely informed me that he does not take any High Court briefs as he has confined himself to practice in the Appellate Division only, and pleaded with me to seek another senior. After noting the disappointment in my voice, he spent another 3 minutes over the phone giving me directions about how to go about in the case, which bench to take it before and who to seek for further guidance. I was humbled by the time I put the phone down. He didn’t need to do that.
Many seniors of his stature won’t even have acknowledged me as a self-respecting human, much less a lawyer.
Being the vociferous deviant from and passionate arguer against the traditional sole-practitioner style of legal practice, I have always regarded Sir to be the epitome of that style of practice. He makes me want to let my ideals and morals be my sole driving forces through the pathways of law. He makes me want to romanticise law and write lofty novels on the nobility of this trade, something that I firmly believe has been long dead. Hearing about his life is to me like dipping my head into and losing myself in Dumbledore’s Pensieve. Through his work and books, he has left an indelible impression in every Bangladeshi lawyer’s life, and through his ideals and morals, in many Bangladeshi’s hearts. Certainly mine.
The silver linings in those black clouds have not disappeared.

I feel patriotic

You may be delirious with congratulating Sri Lanka and India tonight, for they are champions in the game. You may be starting your celebrations in victory or feeling sorrowful in defeat, for your team today either won or lost. But in doing so, you may be ignoring the real champions of the game tonight.

Real patriotism does not arise on face value, as it so often tends to do in the midst of the disillusionment that prevails. It is not a hollow box with a pretty packaging, as it so often tends to present itself nowadays. That box must be filled with substance in order for patriotism to be not just about the packaging. A nation must reassure its subjects of its substance in order to not just merit, but legitimately demand, patriotism. It is not a free commodity, but rather comes at a price, at sacrifice, at efficiency. It comes in achievements.

Tonight presents me with an opportunity to be patriotic, to lovingly refer to the land I tread as my motherland, and to scream at the whole world in silence in celebration of our achievement. If you failed to notice properly, Bangladesh just successfully, regally and efficiently organised one of the very biggest tournaments in the game of cricket. And we did so with our houses full. Absolutely full. All tickets were sold, all seats were filled, all eyes were on the game and all courtesies were extended to the players. It was no mean feat if you consider the empty seats you saw during the last few ODI and T20 World Cups that you may have been privy enough to witness. We roared with every boundary. We groaned with every missed opportunity. Unless the game was against Bangladesh, we made no side feel any lack of support. Off the pitch, some of us halted in our commute almost everyday to make way for the players and officials to commute. We saw Dhaka wear glitters. The government did everything that could possibly be done to ensure that the tournament went on smoothly. And it did. Oh yes it did. And I don’t say it out of relief that was pressing to come out at the end, but say it out of pride and humility that comes out of being reassured of the confidence that I had in us that some others around the world lacked.

Spare a thought for us. Bangladesh. It will be utterly unfair to focus just on our hosting of the T20 World Cup. You are reminded that we were simultaneously hosting the women’s T20 World Cup in Sylhet too, and though that was not as glitzy as the one tonight, primarily because of its lack of viewership compared to the men’s T20 World Cup, it was just as successful in every aspect. I have heard of people travelling to Sylhet to watch the games. The facilities were excellent and the stadium on offer was world-class. Only a week prior to the commencement of the T20 World Cup, we successfully hosted the Asia Cup, which is one of the other biggest tournaments in the international cricketing calendar. If this is not enough, we hosted the Sri Lankan team on a full blown international tour of Bangladesh just before the Asia Cup.

A handful my friends. A handful. Not many nations will be able to pull these off back-to-back, and a fewer yet will agree to do so. Bold Bangladesh. Brave Bangladesh. A long salute to those who run cricket in our country today, for they jumped in cold and painstakingly convinced the cricketing world that we will be able to do it, and then topped it off by actually doing it. All for us, you and me, and all for this country and cricket the world over.

We can now host the biggest tournaments. Because we have what it takes. And we generate money. A lot of money. Enough to satisfy the pockets of the Big 3, the ICC and the rest of the cricketing world. We have a case. Not just a business case, but that too. We have made our submission before the world community with our efforts the last few months, and tonight, we laid a claim on the verdict.

In my loving eyes, the champion of the night is Bangladesh. And I feel patriotic.

 

A Tale of the “Gangway” and the Speedy Trial Act

The first part of our tale involves two ancient red-bricked buildings that stand tall amidst the chaotic hymn of Dhaka Judge Court Premises near Shadarghat that are separated by a princely courtyard between them. The buildings are home to the courts and offices that make up the bowels of the judicial system of Dhaka, where millions of people flock to everyday to claim their due shares of justice. In a rare display of sympathy towards the plight of the lawyers who operate there, someone somewhere constructed a corridor between the second floors of the two buildings to ease commute to and fro. The inauguration of the corridor was marked with a regal program that was attended in chic and fashionable attires by Mr. Lutfozzaman Babar, who was then the much-celebrated and powerful State Minister for Home Affairs of the government. What a contrast it was the next time we saw Mr. Babar on that corridor in 2011, when his haggard and abused body, shackled like a convict, was being dragged through by two of the very policemen he used to command.

Fate, more often than not, is humbling.

The second part of our tale is about The Law and Order Disruptive Crimes (Speedy Trial) Act of 2002, more commonly known as the Speedy Trial Act, which was enacted during the tenure of BNP-led 4-party alliance government with the aim of accelerating trials only for offences that disrupt law and order by confining the said trials within the finite procedural boundaries of summary trials. Such offences include extorting or toll-collecting, blocking or obstructing vehicular movement over land, air or sea, intentionally damaging vehicles and properties, snatching and committing robbery, creating fear, terror, indiscipline or chaos, tender manipulation, or obstructing government employees in their duties by way of threats. The said offences are also made cognizable, meaning that the police can arrest anyone accused of such offences without any prior warrant. The court has the power to award any sentence from 2 to 5 years rigorous imprisonment along with fine for these offences, and moreover has the power to direct the accused to pay damages to property owners for any damage caused to their property.

While the Act received nothing but plaudit from general onlookers upon its enactment, Awami League, being the main parliamentary opposition at the time together with other sceptics saw the possibility of the same being abused to thwart political opponents. Nevertheless, their concerns were not heeded and the Act was promptly put into implementation. Speedy Trial Courts were set up across all districts and metropolitan cities, which, one must be mindful, are entirely distinct from the Speedy Trial Tribunals that were setup under the Speedy Trial Tribunal Act 2002, which is an altogether different piece of legislation made for a different purpose that is not a part of the tale.

The Act can be misleading in what it says about the timeframes to be observed for completion of trials. The Act says that the police shall produce any accused before the court within 24 hours of his arrest along with a First Information Report and will complete all investigation and submit charge-sheet (or final report) within 7 days thereon. If the accused is caught red-handed, then the court shall complete all trial proceedings within only 30 working days from receiving charge-sheet, and if not, within only 60 working days. You would think that these timelines are binding, will you not? Think again. In deciding the issue, the High Court Division held that because the Act does not provide for any consequence in the event of failure to comply with timelines, the time limits in the Act are NOT mandatory, but are rather just directions [16 MLR 2011 (HC)], 55 DLR (HC) 636]! The last time we checked, there are over 295 cases filed from 2011 to 2014 that are still awaiting disposal in Speedy Trial Court no. 5 in Dhaka alone, and scores more in other Speedy Trial Courts elsewhere around the country.

What then was the purpose for the Speedy Trial Act, which was enacted to ensure the speedy disposal of certain criminal cases but fails and only makes a lame attempt to do so?

The more the law was put to use, the more it became apparent to everyone that most cases filed under this Act are against people who are engaged in opposition politics, people who were engaged in committing political violence. This was true regardless of who was or is at the helm. Even though Awami League was against the Act when it was first put to use, the reversal in their position also reversed their stance on the Act as they extended the tenure of the Act firstly in 2010, firstly by two years till 2012, and secondly in 2012 by a further two years till 2014. Departing from the norm of increasing the tenure of the Act by two years, the Ministerial Cabinet recently on the 17th of February 2014 decided to extend the effect of the Act by a further 5 years till 2019. The Act that the prior BNP-led four-party alliance used to stifle its opposition, the implementation of which was partially overseen by Mr. Lutfozzaman Babar, was now turned on them. Tit for tat.

The common man is now under no illusion that the Act was a weapon to stifle political opposition. We however personally spare no sympathy for those who commit violence, whether in the name of politics or otherwise, and for those in the opposition camp who choose to resort to violence. What we do regret is the apparent lack of its exertion on offenders who support the party in power.

We end the tale with a small fact. The corridor that links the two buildings in the Dhaka Judge Court premises is called “the Gangway” by the lawyers who use it.

Co-authored by: Syed Jawad Quader, Barrister and Mithun Mazumdar, Advocate 

Where is the bar now?

I am saddened, but not shocked. I lament, but am not astounded.

I think both lawyers and journalists are expected to be made up of the best intellects a country or society has to offer. We both have so much in common. We both make up the moral compass of a nation. We both transact in the currency of expression. We both build our reputations on integrity, honesty, impartiality and accuracy. We both make a work of art out of the smallest of details to paint the biggest picture.

What happened today before the High Court Division bench of Mrs. Naima Haidar, J and Mr. Zafar Ahmed, J, where lawyers and journalists fought each other, is just a mere picture of where we both have landed ourselves in. Together. That too on the first day of the Supreme Court Bar Association elections.

Let me introspect at the outset and think about those two fateful days in December, when government forces used water-canons on lawyers of the Supreme Court and painted its gate pink, when thugs and goons ran down the gates of the Supreme Court and ran amok in its premises, mercilessly beating down lawyers of the Supreme Court, both male and female, in broad daylight, when people who will never be able to spell a word threw open their flies and flashed their manhood at the minaret of the Supreme Court, when they set the court on fire.

What did we as lawyers do to establish our dominion over the court, to use the law to bring the perpetrators to justice, to protect the image and dignity of the very establishment that makes us what we are, to do ourselves justice?

Nothing.

What did the establishment do to protect its own foot soldiers, to thump its own superiority over injustice, to protect the promise it made to the constitution and to resurrect the supremacy of law over the lawless? What did the mother do to protect and safeguard its own children?

Nothing.

On that day, a signal was sent out that lawyers can be beaten up, even inside the highest courts, without having to pay a dime for it and that we as lawyers are all OKAY with it, so long as we can resume business as usual.

Well, fair warning. It is never going to be business as usual again, unless we respond to the moral duties we owe to the very establishment that feeds us.

The court is a lawyer’s workplace. It’s our holy shrine. Many of us spend more time in courts that they do in their own homes. We should not ever hold it in low esteem, or allow someone else to do the same. For allowing this is akin to losing our dominion over our own home, or a place that is perhaps even more sacred.

As for journalists, we came to know how much they respect the courts from their role in Shahbag, where they threw their support behind a group of people who openly disrespected, discredited, defied and protested against a verdict of a court. A lot of us were unabashedly okay with it then. Are they all okay with it now?

What actually does surprise me is how everyone continues talking the talk about how supreme our courts and our laws are, but do nothing when those very virtues get attacked.

It all boils down to one simple introspective question: What more did we expect?

Where is the bar now?

Heroes of Savar

I just came to know that all the employees of the pharmaceutical company where my wife works at, Techno Drugs Limited, have requested their management to deduct 1 day’s salary from them all and donate it to the cause of supplying medicines to Savar. This is an unparalleled gesture of assistance and solidarity to the victims of the Savar tragedy. I cannot fathom the words to describe how humbling this is to me. If I had a cap now, I would lay it down low for them all.

Techno Drugs Limited being in a position to assist in this tragedy has supplied a big supply of medicine and have accumulated medical support teams at the ground and are actively assisting in the treatment of the victims. All without any photo-op, without any promotional activity to go along with it, without any poster-boy and without them mentioning this. Just the nameless, faceless and thankless extension of their hands of support.

This is just one of the organisations and persons who have gone on selflessly to help. Just one of the organisations and persons who have reacted humanely to the worst of human tragedies. To all those nameless, faceless organisations and persons who are helping for the betterment of the victims on the ground selflessly and thanklessly, I raise a glass to you all. You incite hope in the land where hope dwindles. You shine the light at the end of the tunnel no matter how far away that end may be. You are to us what Batman was to Gotham City. You fill us with humility.

You fill us with pride.