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Archive for November, 2017

CRTC Compufinder Decision Lowers CASL Spam Penalty

The CRTC recently released 2 CASL decisions on Compufinder. If this sounds familiar, it is because this is an appeal from an initial finding in 2015 that levied a $1.1 million penalty.

Compufinder took the position that CASL is unconstitutional. Many legal experts have questioned the ability of the Federal Government to pass this legislation. The CRTC decided that CASL is constitutional. But this is not the last word. Inevitably this will be argued in court. This decision is required reading for anyone who finds themselves in a position to challenge the act in the courts. Ironically, the delay . . . [more]

Posted in: Case Comment, Substantive Law

Appointing Judges: Can Statistics Help?

The appointment process for judges is somewhat opaque. We may know how many judges there are in Canada, but why some lawyers are chosen over other lawyers remains a bit of a mystery.

Can statistics help us identify who would make a good judge? Can it help us answer a very difficult question?

Over the years, it has been observed that humans have a tendency to substitute a hard question with an easy question. For instance, “the question we face is whether this candidate can succeed. The question we seem to answer is whether she interviews well.” (Thinking Fast . . . [more]

Posted in: Justice Issues

Three Research Challenges for Law Faculties

In my work with the Canadian Bar Association’s Access to Justice Committee and the Association for Canadian Clinical Legal Education, I have observed three major research opportunities for law faculties that are not being given the attention I feel they demand. These opportunities involve “big picture” issues in our Canadian legal system, and I believe law faculties (with some exceptions) do not focus enough on them. Here they are:

1. Access to justice

This is the biggest legal issue of our generation. Our democracy is based on the rule of law, and if our citizens cannot get access to the . . . [more]

Posted in: Legal Education

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. Orphan Well Association v Grant Thornton Limited, 2017 ABCA 124

[12] When oil and gas wells are producing, they are very valuable assets. However, when they cease to be productive they quickly turn into significant liabilities. For public safety and environmental reasons, the Alberta Energy Regulator has specific “end-of-life” rules on how a spent well must be rendered environmentally safe by . . . [more]

Posted in: Wednesday: What's Hot on CanLII

Canada’s Patented Medicines Board Leans Heavily on Its Consumer Protection Mandate, and Uses “The Ends Justify the Means” Approach to Lower the Price of an Orphan Drug

The Patented Medicines Prices Review Board (“Board”) recently concluded a 7 year saga regarding its evaluation of the price for Soliris – Alexion’s admittedly breakthrough drug for rare blood disorders. This is the first Board decision dealing with an orphan drug. The Decision aptly illustrates that using the traditional statutory/regulatory framework for patented medicines pricing to evaluate Soliris (which has gained notoriety as the world’s most expensive drug) may be like fitting a square peg into a round hole. The Soliris story provides a rare glimpse into the inner workings of the quasi-judicial price regulating body. Notable highlights include: the . . . [more]

Posted in: Intellectual Property

Reliable Electronic Transferable Records

You may recall that the United Nations Commission on International Trade Law (UNCITRAL) has recently adopted a Model Law on Electronic Transferable Records. An overview report made at the time is here. The text of the Model Law, along with a Guide to its Enactment, are here. Some previous attention to this project has been paid on Slaw here (2011), here (2012) and here (2016).

Transferable records

Transferable records are those that carry property rights with them, so one can transfer the property by transferring the document. Examples include negotiable instruments such as warehouse receipts, bills of lading . . . [more]

Posted in: Legal Technology

Monday’s Mix

Each Monday we present brief excerpts of recent posts from five of Canada’s award­-winning legal blogs chosen at random* from more than 80 recent Clawbie winners. In this way we hope to promote their work, with their permission, to as wide an audience as possible.

This week the randomly selected blogs are 1. Family LLB 2. The Factum 3. O’Faolain 4. Meurrens on Immigration 5. DroitDu.Net

Family LLB
Could Long-Haul Trucker Dad Quit His Job (and Avoid Child Support) Due to Dizziness?

After separating from the father, the mother had full-time custody of their two 17-year-old children. The father agreed

. . . [more]
Posted in: Monday’s Mix

Legal Stewardship of Knowledge by Publishers

The publishers in the legal industry often get a bad rap, either for their lack or insufficient level of innovation, the cost of the services they provide, or the reluctance to transition entirely to digital.

We gave the publishers an opportunity to weigh in on these issues at the Ontario Bar Association’s TECHxpo 2017, where Colin Lachance, CEO of Compass (formerly Maritime LawBook), Eric Wai, a Managing Director at LexisNexis Canada Inc., and Fred Glady, Vice President of Customer Segments at Thomson Reuters, joined us.

The first myth we dispelled was that print was dead in the legal industry. . . . [more]

Posted in: Legal Information: Publishing

Summaries Sunday: SOQUIJ

Every week we present the summary of a decision handed down by a Québec court provided to us by SOQUIJ and considered to be of interest to our readers throughout Canada. SOQUIJ is attached to the Québec Department of Justice and collects, analyzes, enriches, and disseminates legal information in Québec.

PÉNAL (DROIT) : Reconnu coupable notamment d’agressions sexuelles, l’accusé échoue à démontrer que le juge de première instance a erré en droit en déclarant admissible en preuve le témoignage de l’une des plaignantes rendu à l’enquête préliminaire au lieu de son témoignage au procès.

Intitulé : Lafrance c. R., 2017 . . . [more]

Posted in: Summaries Sunday

Working the Law Against Its Intent: Policing Access to Research

The current series of legal kerfuffles in scholarly publishing involves property and access rights in an industry that is, for all intents and purposes, moving toward universal open access. Let’s begin with recent moves by Elsevier, the largest of scholarly publishing corporations with over 2,000 journals, and the American Chemical Society, among the richest of the non-profit societies. These two entities have recently been awarded damages of $15 million (June 2017) and $4.8 million (September 2017) respectively by the U.S. courts, in light of Sci-Hub database, (which I have addressed earlier) providing free access to the better part of . . . [more]

Posted in: Legal Publishing

British Columbia Law Institute Blog Series on Financing Litigation

The British Columbia Law Institute (BCLI) recently published a Study Paper on Financing Litigation that looks at six financing models that have emerged both in Canada and internationally that can help litigants pay for litigation:

  • Unbundled legal services
  • Third-party litigation funding
  • Alternative fee arrangements
  • Crowdfunding
  • Legal expense insurance
  • Publicly funded litigation funds

The Institute has started a 6-part blog series on the topic. Each blog post will showcase one of the financing models.

Two posts have appeared so far.

The first post is on Unbundled Legal Services. The second is on Third-Party Litigation Funding.

It is all part . . . [more]

Posted in: Justice Issues, Practice of Law: Future of Practice

Ontario’s Cannabis Legislation Tabled in Legislature

On November 1, 2017, the Ontario government tabled Bill 174, Cannabis, Smoke-Free Ontario and Road Safety Statute Law Amendment Act, 2017, which would, if enacted, create the Cannabis Act, 2017 to provide the provincial framework for the upcoming federal Bill C-45, Cannabis Act that will legalize cannabis in Canada in July 1, 2018. . . . [more]

Posted in: Miscellaneous, Practice of Law: Practice Management, Substantive Law, Substantive Law: Legislation