January, 2018 Archives – Slaw
Canada’s online legal magazine.

Archive for January, 2018

New Developments in International Legal Information Resources

The New Year is a great time to re-assess old legal research tools and review new ones, so here’s a look at some of the additions to and changes in international legal information resources in the past couple of years.

New resources include the Max Planck Encyclopedia of Comparative Constitutional Law (MPECCOL), Elgar encyclopedias on private international law and on international economic law, and Oxford International Organizations (OXIO)(freely accessible until July 2018). Also forthcoming from Oxford is the Max Planck Encyclopedia of International Procedural Law (MPEiPro).

HeinOnline’s foreign, comparative and international law (FCIL) content was enriched by the additions of . . . [more]

Posted in: Legal Information

Can Discovery Evidence Be Used in a Criminal Case?

Often civil cases and criminal cases arise out of the same event. This creates an issue when the defendant of a criminal case is also a defendant in the civil case. Can the defendant then use the discovery evidence from the civil case in his criminal trial? Must the defendant bring a correlative “Wagg” motion to obtain the discovery evidence?

In Ontario, Rule 30.1 sets out the limits for using discovery evidence in one proceeding in another proceeding. Generally, a defendant cannot take discovery evidence from one case and use it another case. However, an exception is carved out to . . . [more]

Posted in: Substantive Law

Student Access to the Exams They Have Written

The Court of Justice of the EU has held that the “examination script” i.e. the answers to examination questions, constitutes the personal information of the student, and therefore it must be made available to the student on request under access to information and privacy laws. (This is the Nowak case out of Ireland, for those of you who follow such things.)

Would the same result be obtained in any Canadian jurisdiction? One understands the argument that the answers are connected to the student – they have to be, in order to serve their primary purpose. The student’s marks would be . . . [more]

Posted in: Substantive Law: Judicial Decisions, ulc_ecomm_list

Tips Tuesday

Here are excerpts from the most recent tips on SlawTips, the site that each week offers up useful advice, short and to the point, on research, writing, and practice.

Technology

CanLII’s Boolean Operators
Alan Kilpatrick

CanLII’s Boolean search commands are displayed in a pop-up box when the cursor is placed over the question mark icon to the right of the search interface. …

Research & Writing

Confusing Pairs, Part 4
Neil Guthrie

The fourth in a series. fazed – phased; forbear – forebear; fortuitous – fortunate; hanged – hung; home – hone; incredible – incredulous; mute – moot; oral

. . . [more]
Posted in: Tips Tuesday

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. Canadian Securities Law 2. Risk Management & Crisis Response 3. Administrative Law Matters 4. The Lean Law Firm 5. Susan On The Soapbox

Canadian Securities Law
CSA: EU Trading Venues with Canadian Participants Subject to Canadian Rules (Unless Exempt)

The Canadian Securities Administrators (CSA) have issued

. . . [more]
Posted in: Monday’s Mix

Cloud Data Should Stay Grounded in Border Searches

Crossing the American border with electronic devices has long been a concern for both the public and lawyers in Canada. Border officials have always had more power to inspect or search electronic devices than domestic police, but this has also raised some concerns for American citizens as well.

While the Electronic Communications Privacy Act (ECPA), does not apply to data stored on a personal device, this information is still protected in the U.S. under the Fourth Amendment. The notable exceptions to this include search incident to arrest and border searches. The Supreme Court of the United States has justified this . . . [more]

Posted in: Practice of Law: Practice Management, Technology

Trade Secrets – the Other Intellectual Property

Alongside the traditional forms of registerable intellectual property managed by intellectual property offices, patents, trademarks, copyright and industrial designs (and integrated circuit topographies), one of the most valuable forms of intellectual property for many businesses is trade secrets.

Trade secrets encompass almost anything of a confidential nature that can provide a competitive advantage. Trade secrets include know how, processes, customer/supplier lists, formulas, processes and methods. Trade secrets are not registered with any government authorities but can be maintained indefinitely.

To be preserved, trade secrets have to be kept confidential, This is typically done through a combination of physical, technological and . . . [more]

Posted in: Intellectual Property

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.

CONSTITUTIONNEL (DROIT) : Les appelantes échouent dans leur tentative de contester la validité constitutionnelle des articles 51, 52 et 58 de la Charte de la langue française, portant sur la langue du commerce et des affaires.

Intitulé : 156158 Canada inc. c. Attorney General of Quebec, 2017 QCCA 2055 . . . [more]

Posted in: Summaries Sunday

Access Copyright v. York University, and the Friends of Intellectual Property

Last summer, York University declared that it will appeal the July 12, 2017 ruling of the Federal Court of Canada that was made in favor of Access Copyright, whose tariff on course materials, approved by Copyright Board of Canada, the university refused to pay. Instead of paying a set fee per student, York had relied on its interpretation of fair dealing to guide its faculty’s use of course readings. The court’s decision, delivered by Justice Michael L. Phelan, has been much commented upon, and I seek to add but a late footnote’s worth of further context as an educator and . . . [more]

Posted in: Legal Publishing

Regulation, Statutory Interpretation, and Questionable Libation

Generally speaking, products we ingest like food, beverages, drugs and nutritional supplements are subject to basic regulations so we as consumers know what we are putting into our bodies. Things like ingredients, quantity, and source come to mind as basic information that should be available on packaging, or otherwise be readily discernable when interacting with these regulated products. Unfortunately, and to the detriment of consumers and producers alike, the legislation and administrative regimes in Canada that strive to ensure that food and beverage labeling and classification is intuitive and transparent remain works in progress. Shifting consumer demands and habits, developments . . . [more]

Posted in: Administrative Law

Electronic Wills Down Under and Closer to Home

This column canvasses some recent developments in the law affecting electronic wills and reviews the Canadian position.

The forms an electronic will might take have been tested down under in recent years. Consider if the law anywhere in Canada would have, or should have, produced similar results.

Australia

In Yu, Re [2013] QSC 322, the High Court of Queensland gave probate to a will contained in the iPad of the deceased Mr. Yu, who had killed himself. The will was done up like a traditional will, i.e. with the heading ‘last will and testament’, and it contained many of the . . . [more]

Posted in: Legal Technology

The Statement of Principles and Inter-Bubble Communication About Racism

There has been significant controversy in Ontario over the new Law Society requirement that every licensee “adopt and to abide by a statement of principles acknowledging their obligation to promote equality, diversity and inclusion generally, and in their behaviour towards colleagues, employees, clients and the public”.

The nature of the Statement of Principles controversy

Much of the controversy has focused on concern that the requirement compelled expressions of belief and accordingly raised the issue of freedom of speech. This was not an unreasonable concern for at least two reasons. As Alice Woolley pointed out in her op-ed column published in . . . [more]

Posted in: Legal Ethics