Winkler Law

Certified Specialist in Civil Litigation by the Law Society of Upper Canada

Mediation

Opportunity to ‘tell story’ in mediation paves the way to settlement

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Over more than 30 years of practice, Toronto litigator and mediator Howard Winkler has always taken a problem-solving approach to his clients’ needs.

“When they come to me, they’re not really interested in arcane law,” he tells AdvocateDaily.com.

“They’re here because they have a problem and need a solution,” says Winkler, principal and founder of Winkler Dispute Resolution. “I always approach it from the perspective of what the client’s interest is in relation to the story they’re telling me. And then deciding the most effective and efficient way to help.”

The long-time litigator, whose practice focuses on libel, defamation, and tax, has always taken a mediation-like approach, looking for common ground between his clients and the other party.

“I’ve used litigation as a tool,” says Winkler, who now limits his litigation practice to cases that he feels are of public importance or advance the law in areas of interest to him, including libel, slander and reputation management.

Called to the bar 1984, Winkler was just a couple of years into his legal career when he took the Harvard Principles of Mediation program, becoming one of the first lawyers in the province to complete the training offered by the Advocates Society.

“I was interested in the psychology of dispute resolution in identifying effective solutions for my clients and I used what I learned in my litigation practice,” he says.

While he has long drawn on mediation approaches and tools in his casework, it wasn’t until four years ago, after a protracted, all-consuming tax litigation case, that Winkler made the switch, leaving his position as a senior partner at a major Toronto firm to go out on his own.

“When that case came to an end, suddenly, for the first time in my career, I had a clean slate. It afforded me the opportunity to say, ‘OK what do I want to do now?’”

The answer was clear: mediation.

Winkler says his disposition is well-suited to the work.

“All the training in the world will not make you an effective mediator. Technical training can make you better, but it comes down to a type of thought process and personality,” he says. “But it’s also experience-driven.”

With decades of practice as a litigator, he has a deep familiarity with the frustrations of court. Given the inherent risks and costs associated with going to trial, strategic dispute resolution is always his priority.

“I tell my clients they’re wrong to consider the ligation system as a justice system. It’s not. What it does is dispense a decision, from a third party, in a situation where the parties themselves are not able to resolve it. And that decision isn’t necessarily going to be just.”

Winkler’s risk-management approach to mediation recognizes the benefits of retaining control over the dispute resolution process.

“Until you get before a judge or jury, you have control over the risks. And most people prefer to be in control of their own destiny. The minute you step into court, you lose all control.”

Winkler also appreciates the range of options and considerations mediation allows.

“What a court can do is quite limited,” he says. For instance, the court cannot order a defendant in a defamation case to apologize to the wronged party. “The options in a mediation are much broader. In fact, they’re unlimited.”

Winkler says alternative dispute resolution can often offer emotional satisfaction in a way that going to court rarely does. That may include receiving an apology or just the experience of getting to share one’s story.

Unlike many mediators, Winkler allows opening statements from clients.

Take that away, “and you are depriving someone of something very important. There is something cathartic about a person being able to tell their story, and feel that they’ve been heard.”

Winkler encourages participants to speak on their own during this part of the process, rather than have lawyers speak on their behalf.

“It’s incredible, when that’s happened, even in commercial disputes, for the plaintiff to look the person in the eye who they believe harmed them, and to explain that. If they can get some recognition that they’ve been heard, that paves the way to settlement.”

Parties must be realistic about potential outcomes, and be willing to be disappointed or compromise for the benefit of reaching a settlement, Winkler says.

“In my experience, generally speaking at the end of successful mediation, both parties are grateful to have put the dispute behind them.”

Winkler successful in landmark media libel case

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A recent Ontario Superior Court ruling of criminal contempt resulted in a newspaper publisher being sentenced to 21 days in jail and levied with one of the highest damages awards for spreading a false statement about a Canadian senator, says Toronto litigator and mediator Howard Winkler.

Justice Frederick Myers’ ruling follows an earlier finding by Superior Court Justice Sidney Lederman that the defendants — a Toronto-based ethnic community newspaper, its holding company and publisher — libelled the plaintiff, who represents Ontario in the Red Chamber.

“The finding of criminal contempt is quite unusual and the imposition of the jail term was unique,” says Winkler, who represented the plaintiff senator.

The court found that setting only a financial penalty would not work in finding a resolution or a deterrent in this case, he tells AdvocateDaily.com.

In the earlier court hearing, Lederman issued an injunction prohibiting the publisher and her company from repeating the libel of the plaintiff, directly or indirectly, expressly or by innuendo.

But less than two months later, the publisher repeated the libel, says Winkler. While she was found to be in contempt by Myers in Superior Court, a review of the case by the Ontario Court of Appeal unanimously found “the appellant created a controversy so that she could defame the respondent. This was entirely personal.”

The hearings determined the publisher’s conduct was deliberate “and the intent all along was to destroy the reputation of the senator,” says Winkler, principal and founder of Winkler Dispute Resolution. “We presented evidence that years ago the publisher felt slighted by the senator when he was for good reason late in attending a function held by the newspaper,” he says.

The newspaper then published an article saying the senator should respect the media because it could destroy him, Winkler says.

“The antagonism continued and the court was persuaded that ultimately it was all part of the threat the publisher made those many years ago,” he says.

The rules of responsible journalism are clearly outlined in a 2009 case formulating the boundaries of responsible communication, he says. But the publisher in this matter was not able to provide the court any “evidence or verification of any research to support the allegations being made, there was no fact-checking, and the newspaper never reached out to the senator to warn him about the nature of what was to be published and give him an opportunity to respond,” Winkler says.

“In fact, on cross-examination, I was able to get her to admit that she didn’t believe the allegations to be true,” Winkler says. “You go down the checklist of responsible communication and it’s a classic case of how to be irresponsible and disentitle oneself to that defence.”

It’s common that in a case where a court order was defied, a ruling of civil contempt may be issued by a judge, he adds, but Myers “was very clear in his view that this amounted to a criminal contempt because it was so knowing and deliberate on the defendant’s part in his opinion.

“The criminal contempt is for an offence against the court, not so much the plaintiff,” Winkler explains. “Myers found the publisher was aware of the order, that she knew the scope of it and deliberately tried to circumvent it by having other people republish the original libel.”

The appeals court found the conduct of the publisher “demanded a substantial award of punitive damages,” adding after Lederman’s judgment, “the appellant had repeated the defamation, knowing full well that it was false. On the facts as found by the motion judge, deterrence could only be adequately served by a significant award of punitive damages.”

The behaviour of the publication is unprecedented, Winkler says.

“This is a situation where the publisher allowed her personal animosity towards the senator to creep into the work of the newspaper and the product it was publishing,” he says. “This case represented a complete dereliction of the responsibility that comes with the privilege of being a publisher.”

Winkler believes the case sits among one of the top damage awards issued for media libel.

“I think the case will be relied upon by others to try and push the envelope on damages,” he says, which included $150,000 for general and aggravated damages, $100,000 in punitive damages, and each of the media defendants was fined $5,000 for contempt and court costs, totalling $150,000.

“We’re engaging in efforts to collect on the judgment and the cost orders,” he says.

Howard Winkler representing former Ontario PC leader in libel suit

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Toronto litigator and mediator Howard Winkler of Winkler Dispute Resolution is part of a team representing the former Ontario PC leader in a libel claim against CTV, reports Global News.

The libel notice specifically names CTV’s president, anchor and several reporters along with CP24 and other editors, researchers and producers of the initial reporting, the article says.

The notice claims that the allegations made in the CTV report were interpreted to mean that the politician illegally provided alcohol to a person under the age of 19, that he engaged in sexual misconduct, that the allegations against him are true and as a result he is unfit to serve in public office, Global News reports.

The notice of libel also states that the full damages suffered by the former Ontario PC leader cannot be determined and that a full apology or retraction must be published or broadcast on ctvnews.ca and on CTV National News in order to mitigate those damages, reports Global News.

He resigned abruptly on Jan. 24 hours after a CTV News report emerged in which he was accused of sexual misconduct by two anonymous women dating back to when he was a federal MP in the Barrie, Ont., area, CBC reports.

In the notice, the former Ontario PC leader — who has denied the accusations made in the CTV report from the outset — alleges CTV engaged in “false, malicious, irresponsible and defamatory” reporting on its national newscast as well as its news website, the article goes on to say.

In mid-February, it was reported that one of the women had revised some details of her story, CBC reports.

“CTV originally said she was in high school and under the legal drinking age at the time when they met at a bar on the night in question, but later said she was in fact out of high school and was of legal drinking age,” reports CBC.

Winkler tells AdvocateDaily.com that this case is significant for at least three reasons.

“First, it raises the issue of whether the CTV reporting had the effect of subverting the democratic election process in Ontario,” he says.

“Second, it raises the important question of the appropriate journalistic standards to which the media should be held in circumstances such as these.

“Finally, and most importantly, this case provides an opportunity for our client to clear his name,” says Winkler.

CAO tribunal a model for dispute resolution: Winkler

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The new online mediation and tribunal project of the Condominium Authority of Ontario is not only an efficient, low-cost answer to dispute resolution in the condo world — it could also become a model for the resolution of disputes in other areas of law in the future, says Toronto litigator and mediator Howard Winkler.

“If this works it could be revolutionary: it could free up scarce judicial resources and provide for a far less expensive dispute-resolution process,” says Winkler, principal and founder of Winkler Dispute Resolution.

The Condominium Authority Tribunal (CAT), set up three months ago, uses a three-part process to resolve disputes — negotiation, mediation, and a binding ruling as a last resort. The key innovation is that all negotiation and mediation are carried out online, which precludes the need for personal appearances and keeps costs very low — up to $200 if the matter goes all the way to a ruling.

For now, the only issues CAT is eligible to hear are disputes related to condo corporation records, but Winkler tells AdvocateDaily.com that he expects the range of eligible issues to broaden rapidly.

“It’s the province’s first foray into a primarily online tribunal,” he says. “the initial limited jurisdiction provides a good starting point to get their feet wet.”

But Winkler believes the system has the potential for broad application and says “the tribunal’s intention is to enlarge the scope of that jurisdiction, hopefully relatively quickly.”

There are three stages in the CAT dispute-resolution process:

  • Negotiation amongst the parties, all facilitated by CAT’s online tools;
  • Mediation, with the sides communicating electronically through the mediator, who can clarify positions and identify common ground;
  • A tribunal hearing, which may consist of written online submissions or an in-person hearing. So far, no cases have got as far as a tribunal hearing.

Calling the CAT process unique and progressive, Winkler says that the traditional litigation route is not working.

“It’s too expensive, time-consuming, and quite frankly at the end of the day, it’s a bit of a crapshoot in terms of predicting what the result will be. In court, you don’t know who your judge will be, and it could be someone without any subject matter expertise.”

In some cases, arbitration has become as unwieldy as the litigation process, Winkler says.

“This is a self-funded tribunal,” he says. Every condo corporation is required to pay a contribution fee to fund it. Complainants pay extremely modest fees for access to the dispute resolution system: The first-stage fee is $25, the assisted resolution fee, which includes access to a mediator, is $50, and if you end up at the tribunal the fee is $125.

“The authority has assembled an impressive group of panel members with expertise ranging from condominium law to dispute resolution,” says Winkler, who is not on the panel himself. ”It really provides a hopefully quick, but certainly inexpensive, access to subject-matter expertise and the dispute-resolution process, and in that regard, it’s quite brilliant. The tribunal is also given the power to weed out at an early stage claims that are determined to be frivolous, vexatious or brought in bad faith or for an improper purpose.”

The project’s greatest usefulness will come when it is enlarged to deal with other kinds of disputes between owners, residents and the condo corporation, he says. These could include everything from property management and maintenance issues to disputes between unit owners.

In Ontario, 1.6-million people are living in condos, and more than 50 per cent of new homes being built in the province are condominiums, according to the Ontario Ministry of Government and Consumer Services.

“It’s natural that there’s going to be disputes arising between people living in such close proximity and sharing common elements,” says Winkler. “These kinds of neighbourhood-community-type disputes are really quite amenable to a low-cost expedited dispute-resolution process.”

But he sees no reason why the same process couldn’t be used in many commercial conflicts as well.

Such tribunals could reduce the logjam in the court system, he says. And since, under the right circumstances, it could be funded by the users, the financial burden would be removed from the general public.

“More than 90 per cent of all cases before the courts settle before trial, so any mechanism that facilitates dispute resolution — sooner rather than later — is advantageous to the parties, and also in the public interest,” Winkler says.