October, 2015 Archives – Slaw
Canada’s online legal magazine.

Archive for October, 2015

Jurisprudential Aether, Something in the Water, or Something in the Air?

When the Supreme Court of Canada says “X” in 2007, and repeats “X” in 2011 adding explicitly that “X does not mean Y but means Z”, it is reasonable to assume (is it not?) that, once word of what was said in 2007 and repeated in 2011 spreads through the Canadian “jurisprudential aether”, however long that takes, the judges of the lower courts in Canada will pay attention.

It’s always worth quoting this reminder about pecking orders in the Canadian judicial universe:

[51] Any legal system which has a judicial appeals process inherently creates a pecking order for the judiciary

. . . [more]
Posted in: Case Comment, Miscellaneous, Substantive Law, Substantive Law: Judicial Decisions

The Friday Fillip: Passive Aggression (And Other Kinds)

I confess: I have never read the big whale big book. Sorry, Herman. I’ve just picked up the usual tid-bits, like everyone else, the “Call me Ishmael” snippets, as it were (and, whether I might have wished it or not, “Starbuck”). I have, though, read Melville’s massively shorter Bartleby the Scrivener, and I invite you with this Fillip to do the same.

Never fear. It’s not a gateway drug leading inexorably to your being caught up in the Moby tale. It’s just a short story of stubbornly puzzling import. Oh, and it’s told by a lawyer about a man . . . [more]

Posted in: The Friday Fillip

Self-Represented Litigants’ Response to “the Rights and Responsibilities of Self-Represented Litigants”

In my 28 August 2015 post, “The Rights and Responsibilities of Self-represented Litigants,” I reproduced a document intended to sketch out, like the name suggests, the reasonable expectations that litigants without counsel should have as they make their way through the legal system, and their concurrent obligation to attempt to acquire a reasonable understanding of legal processes. This caught the eye of Julie Macfarlane, professor at the University of Windsor and director of the National Self-Represented Litigants Project, who arranged for the document to be reviewed and commented open by a number of the self-represented individuals . . . [more]

Posted in: Justice Issues

Volkswagen, Legal Advice and the Criminal-Communication Exclusion to Confidentiality and Privilege

In my last SLAW column I commented on the Volkswagen scandal and the classic ethics question: where were the lawyers? In this column I want to use that scandal to consider a more specific legal ethics issue: when lawyers are consulted about a criminal course of conduct, under what circumstances is that consultation confidential and privileged? This question relates to the scope of the criminal-communications exclusion to privilege, and the ability of a counter-party in litigation to gain access to solicitor-client communications. But it also goes to the ability of lawyers who are consulted in those circumstances to blow the . . . [more]

Posted in: Legal Ethics

Interconnected Devices and Products Liability

We have occasionally discussed on this site (as recently as this week…) the implications of interconnected devices and the Internet of Things.

Here is an article that asks “should cyber-security vulnerabilities really be treated the same as design defects under traditional products liability law?”

The specific context is an infusion pump system that the Federal Drug Administration in the US thought was insecure and sent a warning about – a warning that sounded like a ‘defective product’ warning. The article raises a number of concerns about thinking about a security defect like another defect, including many complications about who . . . [more]

Posted in: Substantive Law: Judicial Decisions, Technology: Internet, ulc_ecomm_list

Facebook & Employment Law: Friend or Fired?

For many, Facebook is a blessing. For some, it’s a curse. For a few, it gets them fired.

For example, last month, an Atlanta employee at an American marketing firm took a “selfie” with the young son of his co-worker and uploaded the picture to his Facebook profile. A number of his friends proceeded to make racist and derogatory remarks about the boy and, in response to some of these comments, the employee published a comment describing the boy as “feral.” He was subsequently terminated by his employer as were some of the other individuals who made racist comments. These . . . [more]

Posted in: Substantive Law: Judicial Decisions

Reminder: New Quebec Code of Civil Procedures Effective January 1, 2016

Quebec lawyers are reminded that they need to prepare for upcoming changes to the Quebec Code of Civil Procedures passed into law on February 20, 2014. These significant changes are in effect January 1, 2016, and will improve overall access to justice. . . . [more]

Posted in: Education & Training, Education & Training: CLE/PD, Justice Issues, Legal Information, Legal Information: Libraries & Research, Practice of Law, Practice of Law: Future of Practice, Substantive Law, Substantive Law: Legislation

Defending Implicit Reasons: An Expanded Role for Tribunals on Judicial Review?

The Supreme Court recently clarified the rules on the role of a tribunal on a judicial review of one of its decisions: Ontario (Energy Board) v. Ontario Power Generation Inc., 2015 SCC 44 (CanLII). The clarifications are useful for courts in deciding whether to give a tribunal standing. Professor Paul Daly has provided a useful overview of the court’s decision on the standing question. In this column, I want to focus on what the court outlined as the basic parameters of what a tribunal can say to the court, once it is given standing.

Justice Rothstein, writing for the . . . [more]

Posted in: Dispute Resolution

The Medium Is the Message

In “Legal Practice and Legal Delivery: An Important Distinction”, Mark Cohen argues that technology has transformed the delivery of legal services but not the practice of law. He defines delivery as “how services are rendered” and practice as “what lawyers do and how they do it”.

The delivery of legal services is a play with many actors…The days of law firms having a stranglehold over legal delivery have given way to the rise of in-house lawyers and departments, legal service companies, and technology companies “productizing” tasks that were once delivered as services. Again, it is not legal practice that

. . . [more]
Posted in: Practice of Law, Practice of Law: Future of Practice, Technology, Technology: Internet

Wednesday: What’s Hot on CanLII

Each Wednesday we tell you which three English-language cases and which French-language case have been the most viewed* on CanLII and we give you a small sense of what the cases are about.

For this last week:

1. R v M.J.B., 2015 ABCA 146

[31] The appellant says that another unbalanced treatment lies in the trial judge’s comments about the complainant being mortified and ashamed whereas the trial judge did not attach supportive significance to the appellant also being horrified and deeply shocked. She did comment on the appellant’s demeanour and the substance of his evidence. The fact that . . . [more]

Posted in: Wednesday: What's Hot on CanLII

Not So Fast!

What’s the right pace of change? A ridiculous question, I know; change is usually foisted upon us and we have little control generally. But for the few things we can control, it’s a great challenge to ensure that the pace of change we introduce is just right … not too fast and not too slow.

Our thinking over the past 20 years about what should change and when has been supported by a couple of core assumptions. But some recent information has challenged these beliefs.

The first assumption is that print is on its way out and dead as a . . . [more]

Posted in: Legal Publishing

Your Workplace: Being Happier Where You Are, or Getting to a Better Place.

This article is by Nora Rock, corporate writer & policy analyst at LAWPRO.

Lawyering is stressful. Lawyers expect to handle the pressures of solving individuals’ high-stakes, emotionally charged problems.

What lawyers don’t necessarily anticipate is that they may suffer stress from being stuck in a work situation that is not their first choice. Competition for jobs may mean that a lawyer needs to accept work outside his or her preferred area of practice, work for a difficult boss, or work in a high pressure, long-hours environment.

The ultimate cure for this kind of stress is to find another career that . . . [more]

Posted in: Reading: Recommended