Canada’s online legal magazine.

Archive for ‘Columns’

Calling a Spade a Spade – It’s Probably a Shovel: Standards of Proof in Administrative Proceedings

One of the predominant topics in any discussion about administrative law is standard of review. The standard of review is at the heart of judicial review proceedings. What I find much more interesting is standard of proof. The vast majority of administrative law decisions never go to judicial review, or even to an administrative appeal tribunal. The decision at first instance is often the final decision. From that perspective, the standard of proof is a far more important concept.

Statutory Standards of Proof

For administrative tribunals, the default is the civil standard of proof on the balance of probabilities, subject . . . [more]

Posted in: Administrative Law

Leadership Styles for Practice Group/Client Team Leaders

Law firm marketers have been fundamental to the establishment and management of many law firm practice groups and client teams in North American law firms. Critical to the success of these efforts has been the ability to help train team members in their respective roles. Toward the end of my time in-house, I conducted research on what makes for a successful or failed team. The number one reason in both instances? Leadership. If you are charged with starting, running or overseeing a practice group or client team – or if you have any leadership role in your firm (such as . . . [more]

Posted in: Legal Marketing

Judgmental Judges

Judges exercise considerable power, and discharge a crucial public function. They identify, interpret and even create the rules that govern us. They decide what happened. And they determine the legal consequences of what happened.

But judges also exercise a defined and limited public function, and in doing so they are human, not superhuman. Judges determine and apply the law, but they do not decide questions of morality outside the law; they do not decide what it means to be a good person except as the law defines goodness. They do not – except in the specific ways the law asks . . . [more]

Posted in: Legal Ethics

What’s Not on CANLII – Playing the Devil’s Advocate

CANLII at 15

CANLII recently passed its fifteenth birthday, with announcements and pronouncements about its many notable achievements. Missing however, from the self-congratulatory posts, rationalizations for incomplete case law databases, and the unfulfilled promise of expanding its meagre coverage of secondary, was any realistic critique of what had been achieved and what remains to be done if it is to become a useful tool for legal research. A “devil’s advocate” seems to be required.

Legal Research

Legal research is more than checking recent cases. Legal research is more than checking current legislation.

The Canadian Legal Research and Writing Guide (formerly . . . [more]

Posted in: Legal Publishing

Learning From Failure at the Oscars

By now, you’ve probably heard about the stunning failure at the Oscars ceremony, even if in Canada the Oscars play second fiddle to the Canadian Screen Awards.

To recap, Warren Beatty and Faye Dunaway presented the award for Best Picture to La La Land. The producers of that film took the stage, celebrated, and made the obligatory endless thank-you speech… until they were interrupted and told that the award actually belonged to Moonlight.

Oops.

Or as Plattville, Wisconsin library so brilliantly put it:

We can learn a lot about project failure from studying the video of the award . . . [more]

Posted in: Practice of Law

Client Publications – a Tried and True Tactic

You may find it comforting to know that, despite all the talk about innovation and disruption in the business of law, some of the long-standing tactics of legal marketing and business development remain effective. Last month, two client contacts independently forwarded the same competitor’s legal update to lawyers in my firm and asked for advice on the subject.

The publication had the desired effect in that it caught the attention of exactly the kind of client it was targeting, but unfortunately for the competitor, it generated two leads for our firm instead. It was an instructive reminder of the value . . . [more]

Posted in: Legal Marketing

Too Many New Lawyers? Build a Wall?

Over the last few years, there has been much debate about how to deal with the significant increase in the numbers of Canadian and foreign law school graduates seeking licensing in Ontario. While the number of articling positions has significantly increased, the number of applicants has increased even more quickly. The Law Practice Program (LPP) was established several years ago as an additional pathway to address this shortfall and to pilot a new approach to experiential training.

With a recent proposal to terminate the LPP facing substantial opposition, the Law Society of Upper Canada is now developing “long-term recommendations for . . . [more]

Posted in: Legal Ethics

Reasonable Royalties and Non-Infringing Alternatives

In an oil and gas patent proceeding, the court ordered a 27% royalty rate for sales made prior to the grant of the patent at issue and did not consider a manual process as being a non-infringing alternative. In a recently issued decision, Frac Shack Inc. v. AFD Petroleum Ltd., 2017 FC 104, the defendant was found to infringe several of the claims in a patent relating to a fuel delivery system used for hot refueling of equipment used for hydraulic fracturing.

If a patent is found to be infringed, the patentee, or person claiming under the patentee . . . [more]

Posted in: Intellectual Property

The Belt Challenge and the Need for a Think

This will be a bit of an odd column: I’m going to talk international relations. Yes – I know I am a lawyer and not a foreign policy wonk. But I am worried about Europe. No, I don’t mean Brexit, Greek debts, or German, French and Dutch elections. A much bigger challenge lies more to the South, below Italy’s boot. I call that challenge the Belt. It’s a bit of a crude word, because it gives the impression that it’s a single challenge. It’s not. Justice is a large part of it.

Picture yourself on the top of the Mont . . . [more]

Posted in: Justice Issues

Beyond the Binary

I work in the justice sector managing a collective impact initiative that facilitates collaboration with institutional, political and community stakeholders. Our goal is to develop meaningful, public-focused access to justice solutions for Ontario. The term “innovation” is one that I hear often, delivered with a sense of urgency to catch up, to be more like other sectors and to make better use of technology. This pressure – and the related jargon – can at times obscure what innovation is really about and inadvertently alienate. Of course, innovation is about change but it doesn’t have to entail a scorched earth approach . . . [more]

Posted in: Justice Issues

Taking the Next Step With Experiential Learning

Experiential learning was placed on the agenda for North American law schools when Educating Lawyers by the Carnegie Foundation for the Advancement of Teaching was published in 2007 (commonly called the Carnegie Report).

The Carnegie Report called for law schools to integrate “the three apprenticeships” of legal education into their curricula: theory, ethics, and practical skills. Over the past decade, many US law schools have taken up the challenge.

Canadian law schools have been slower to respond, but momentum is building for the integration of practical skills into the curriculum. A listing of experiential learning opportunities in Canadian law . . . [more]

Posted in: Legal Education

Vicarious Trauma

In July of 2015, a family lawyer in Winnipeg suffered severe injuries when a bomb was delivered to her office and was detonated. This incident hit our legal community hard. Sessions were offered to identify suspicious packages; a Personal Safety Handbook was developed and many lawyers became hyper vigilant. While many in our legal community were horrified, incredibly empathetic and wanted to help; others reacted differently. The impact on some involved very real trauma and the true fear that this could/would happen to them. A similar reaction occurred in 2007 when a Senior Crown Attorney was subject to an attempted . . . [more]

Posted in: Practice of Law