Swimming hole

Lakes or rivers are not my preferred choice for swimming. It’s gotta be either a swimming pool or the ocean.  Interestingly I have met those who feel quite the opposite. In either case – fresh or salt water – there is normally some underlying dislike of (1) a muddy bottom and reeds or (2) shellfish and sharks which drives the preference. For those confined to the hinterland – especially on a hot summer’s day – the allure of a clear, shallow river tumbling gently over a nearby waterfall is nonetheless hard to resist.

During my afternoon drives about the nearby countryside over the past several months since our return to Canada from Florida last March I have unearthed three venues for public swimming.  These are in the Village of Appleton, the Village of Burnside and White Lake. The latter two seemingly also offer a launch for boating (and I wager that a sea plane would enjoy equal success). Today I interrupted my aimless venture briefly to pause in the Village of Appleton. There I sat at a partly dilapidated stone table (the legs of one of the matching stone benches had broken and lay aground). Secured onto the top of the round stone table was a partially cracked memorial to Brian Cole, the 13-year old grandson of Vera and Delbert Cole. Vera and Delbert Cole owned a nearby riverside property (on the other side of Debbie and Mike O’Malley’s home). I am unfamiliar with the family tragedy surrounding the loss of Brian Cole. But I do recall that years ago after the Cole’s bought their home they raised an issue with our then Conservative provincial member of parliament who contacted me about it.  The Coles objected to the adjacent pubic right-of-way for boat launching into the Mississippi River. I was obliged to regurgitate to the legislator the same caution I had originally delivered to the Coles prior to the completion of their purchase. It ended being an embarrassment for the legislator (who apologized for his unfounded accusation of professional negligence on my part) and I assume for the Coles (though I never met with or was consulted by them again).

This was not the only occasion on which certain people chose (for their intended benefit) to ignore completely the specific plain-language of contradictory terms. There were in fact at least two instances where putative trustees sought to broaden their advantage by claiming entitlement which contradicted the fiduciary terms. Though it was necessary to itemize the prescriptive terminology – and although there was a reluctance of the promoter to succumb to the restrictions – clarity eventually won the day. I will admit that following those faulty assertions I changed my own drafting mechanics applicable to the trust agreement to remove even the threat of unfounded objection. In subsequent deliberations with a former Justice of the Federal Court of Canada (for whom I prepared a similar trust agreement) we together dealt at considerable length with the esoteric refinements of the applicable law.

I recall other challenges raised by some clients. Those objections were however limited to the amount payable for professional advice.  Once again the contests were ultimately settled based upon prior written arrangements which for some reason the client chose to overlook – but pointedly which the court did not. Indeed one judge exemplified his distaste of the baseless claim by adding costs which materially broadened the initial expense. I recall the gusto with which I telephoned the other solicitor to advise that unless my account and the costs were settled immediately I would instruct the Sheriff to seize and sell the client’s home at auction.

Disagreement was not common in my practice. Perhaps the most disturbing retainer was that involving an alcoholic who died of liver failure. Months before his death he attended my office to instruct me concerning his last Will and Testament.  He left nothing to his wife.  I naturally warned my client that his wife had a potential claim against his estate pursuant to the Family Law Act. It wasn’t until months afterwards – when my client was dying in the hospital – that he called me to arrange to sign his Will.  When my assistant and I met my client at the hospital we reviewed the draft in detail.  We were satisfied that in spite of my client’ cirrhosis he unquestionably knew what he was doing. He died not long after signing his Will. His wife’s lawyer challenged the Will based upon incapacity but the court would have nothing to do with the allegation particularly I suppose as the Will reflected the earlier wishes of the testator. The wife’s lawyer hoped to destroy the entire Will because it would enable the surviving spouse to make an unfettered claim to her deceased husband’s estate based upon the laws of intestacy rather than the potentially less generous claim based upon family division.

I have forever maintained that the foundations of commerce are insurance and financing. The advent of title insurance in the latter part of my legal career changed the face of the practice of law. Though generally speaking there are few cases of predictable loss, title insurance enabled two resources in particular – one, coverage for unanticipated loss from an unimaginable source; and, two, coverage for possible – though unexpected – loss. Some lawyers mistakenly used title insurance as a catch-all coverage for inadequate title investigation. This was a doomed proposition.  Instead coverage required in-depth analysis then sharing with the underwriters the possible exposure.  If the risk were deemed tolerable, then the coverage was enacted. But it never amounted to a situation of covering one’s eyes and hoping for the best.

There was one singular matter which involved the insurers covering a claim which no one would have imagined possible. It was certainly unpredictable. Upon discovery of the offensive feature (a functionless buried municipal utility line below the new home foundation)  it required months of detailed examination before the insurers relinquished their hold of the purse strings.