Niche Focused Practitioners Should Read Decisions From Various Areas of Law and Should Think Outside the Box

By: Scott McEachern, legal practitioner coach

Developing a focus within a niche area of law helps to ensure that a practitioner truly possesses legal expertise and knowledge that, although limited to narrow field, runs very deep within that narrow field.  However, practitioners would also benefit from remaining alert to the value of gleaning doctrine from another niche area whereas the law is often quite flexible and may be applied to various issues.

Example 1:

Years ago, I did a case that arose from a real estate transaction.  The primary issue in dispute was realtor commission arising from an alleged breach of the Broker of Record agreement.  Within the standard OREA Form 300 - Broker of Record document, the geographical territory for which the agreement applied was poorly described whereas a legally known territory was absent.  For example, imagine an agreement that simply stated, "York & Area".  While two friends from Newmarket might understand between each other what that means, legally, "York & Area" is a very ambiguous term.

Interestingly, and although the dispute arose from a failed real estate deal, the case law that was in hand if the matter proceeded to Trial (the case settled) was actually a case that is very well known to employment law practitioners Shafron v. KRG Insurance Brokers (Western) Inc., [2009] 1 S.C.R. 157.  In the Shafron case, the issue is identical, being ambiguity within the naming of a territorial region; but, the issue within each case was in a completely different context being that in Shafron the issue arose due to a poorly described geographical territory for a non-competition clause rather than as a poorly described geographical territory for a realty brokerage representation exclusivity clause.

Example 2:

In another situation, a lawyer learned the hard way, all the way to the Court of Appeal, that understanding tort law is necessary to understanding aspects of debt law and bankruptcy law.  In the case of Shaver-Kudell Manufacturing Inc. v. Knight Manufacturing Inc., 2021 ONCA 925, a Judgment was awarded in favour of the Plaintiff; however, shortly afterward, the Defendant went into bankruptcy with a resulting Stay of Enforcement of the Judgment.  The Plaintiff, via counsel, brought a Motion to lift the Stay of Enforcement on the basis that the Judgment was based upon morally improper conduct, being misappropriating of trade secrets, as per section 178(1)(e) of the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3 which excludes matters of false pretences or fraudulent misrepresentation from bankruptcy protection.  The Motion judge agreed; however, the Court of Appeal subsequently deemed that misappropriating of trade secrets is a tort that differs from the legal definition of false pretences or fraudulent misrepresentation whereas misappropriating of trade secrets would require deceitful statements to qualify as false pretences or fraudulent misrepresentation.  Interestingly, while the Judgment against the Defendant was based upon intentional tortious conduct, the Court of Appeal deemed that the only intentional tortious conduct exempted by section 178(1)(e) of the Bankruptcy and Insolvency Act is specifically, as explicitly stated and precisely legally defined, false pretences or fraudulent misrepresentation.

Conclusion:

Accordingly, professional practitioners, despite providing legal services within a narrow niche area of focus, will remain attuned to general points of law, even points of law from outside the practitioners focus, whereas the professional appreciates that the law is flexible and that points of law from a case in one area of law may be transferable to an issue within the practitioners focused niche.


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