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Archive for ‘Columns’

Stay of Environmental Order Pending Appeal? Not Likely.

Does the public interest in environmental protection allow the sacrifice of the innocent? The Ontario Ministry of the Environment and Climate Change, and the Environmental Review Tribunal, think it does.

Few people, however innocent, can afford to appeal environmental orders, if they must also comply with the order throughout the appeal, with no prospect of recovering the funds even if the order is found to be illegal. A recent decision of the Ontario Environmental Review Tribunal (ERT) shows how difficult it has become to obtain a stay pending appeal of environmental orders in Ontario, with no immediate prospect of improvement. . . . [more]

Posted in: Justice Issues

The New International Outsourcing Standard: ISO 37500:2014

On October 31, 2014, the International Organization for Standardization (“ISO”) published a new standard ISO 37500:2014 – Guidance on Outsourcing (the “Standard” or “ISO 37500”) to provide general guidance on outsourcing. It is likely that the Standard will impact outsourcing practices in Canada, both because of the comprehensive nature of the Standard and because of Canada’s role in its development. In this note I want to look at ISO 37500 in more detail. The discussion is divided into three parts:

(i) Part I provides some background to the publication of the Standard;
(ii) Part II summarizes ISO 37500’s approach to . . . [more]

Posted in: Practice of Law

Family Law Grant = Experiential Education = A2J

Legal Aid Ontario announced recently that it was committing $2 million to the six legal clinics at Ontario law schools to allow them to create or expand family law services.

This is the kind of creative thinking that we need in the justice system as we tackle the issue of our generation in law: access to justice. But it’s not just access to justice that will be improved; students will receive the experiential education that will enhance what they learn in the classroom.

Our clinic here at Western Law is one of the recipients of this grant. We have used . . . [more]

Posted in: Legal Education

Re-Litigation by a Patentee With a Different Party – Has the Federal Court Been Consistent in Its Approach?

Over the past few years the pharmaceutical marketplace has seen an increase in patent “re-litigation” (where a patentee is involved in a second case against another generic). Following the Federal Court of Appeal’s warning to losing brands that they must put their best foot forward in case1[1], and at the same time, arguably permissive attitude regarding new generics in case2, the Federal Court continues to grapple with how to fairly deal with re-litigation. One notable hurdle is the unusual procedural regime of the Notice of Compliance (“NOC”) Regulations. NOC proceedings are designed to result in merely preliminary type . . . [more]

Posted in: Intellectual Property

The Replicability of Research’s Irrational Publishing Economy

After a year of sabbatical concentration and isolation spent working on a pre-history of intellectual property, it’s good to be back blogging on the here and now at Slaw. The book I finished (with a draft online) still needs work in its tracing of the intellectual properties of learning from Saint Jerome to John Locke. I’ll give it a blog or two later, point, but I’m keen to get back to what currently tickles and troubles learned publishing.

Certainly, the previous academic year has seen gains, if not tipping points, in favor of open access as the model and . . . [more]

Posted in: Legal Publishing

The Unconscious Barrier to Equality

Before reading: (1) think of four colleagues (some male and some female), and (2) consider the first adjective that pops into your mind to describe each of those colleagues. Now continue reading.

….

I am a feminist. I know, I just heard a collective internal groan from the internet. But, like most feminists (and most people), I’m not a bra-burning, Thai fisherman pant-wearing, men-hating, razor-neglecting aggressor. Rather, I hold the simple belief that women and men should be treated equally. (And I am happy to report that I am part of a significant majority in Western society.) Unfortunately, I . . . [more]

Posted in: Justice Issues, Practice of Law

Trinity Western… Again

I can’t stop thinking about the law society decisions on Trinity Western University (TWU). Part of the reason for that is the complexity and difficulty of the substantive issue raised by TWU’s proposed law school: the proper resolution of an irreducible conflict between equality rights and freedom of religion (I discuss that here). But as I spent the last few weeks teaching administrative law procedural fairness, I realized that the other thing bothering me about the law society decisions is the process used to reach them.

As far as I can tell, each law society that has independently considered . . . [more]

Posted in: Legal Ethics

E-Mail and the Lawyer

E-mail is dead. Social media and instant messaging (IM) are replacing e-mail. Those are the messages of emerging communications driven by so-called enterprise technology. These tools, designed for companies that fire more employees than legal professionals comprise the entire Ontario bar, can enhance internal firm interaction. But e-mail remains the bread-and-butter tool for solo and small firm lawyers and a primary method for communicating with clients and others.

So why are we not experts at using it?

To be honest, I rarely think about how I use e-mail. My habits run in well-worn ruts. But I was jolted out of . . . [more]

Posted in: Legal Technology

The McGill Guide and Electronic Resources

The eighth edition of the Canadian Guide to Uniform Legal Citation (“McGill Guide”) was published in May. The new edition does not make any changes quite as dramatic as in the previous edition; if you were reading SLAW four years ago, you may remember there was a strong reaction to the removal of periods from citations.

A welcome element in the eighth edition is a greater focus on citing digital resources. The two sections of the McGill Guide that primarily deal with electronic resources are section 1.6 (“Online resources”) and section 6.22 (“Electronic sources”). Other information on citing electronic resources . . . [more]

Posted in: Legal Information

Privatization of Justice: Balancing Efficiency and Access to Justice

As we struggle to fix access to justice, life goes on and people start to use other means to address their need for an efficient dispute resolution system. The rise of private systems of justice raises interesting questions of transparency, legitimacy, accountability and democracy. A recent book by Professor Trevor C.W. Farrow of Osgoode Hall Law School (Civil Justice, Privatization, and Democracy) is a comprehensive treatment of these issues. (An excerpt was published on slaw.ca earlier this year.)

The Rule of Law requires a system of justice that is characterized by openness, knowledge and accessibility. Professor Farrow’s thesis . . . [more]

Posted in: Dispute Resolution

The First Tool: Elements of the Project Charter

In the last two articles I described the idea behind becoming a very highly valued five-tools project manager and supplied an overview of the first tool, the project charter. Now let’s look at the elements of a project charter.

The Business Problem

What does the client need to achieve?

Corporate clients rarely have legal problems; they have business problems. (Yes, occasionally it is a true legal problem, but as doctors say, when you hear hoofbeats, think horses rather than zebras.)

What is blocking or imperiling their business? What business goal are they trying to achieve? The more you share an . . . [more]

Posted in: Practice of Law

Citizenship Act Reforms: Unjust and Insecure

In the wake of the attacks in St-Jean-sur-Richelieu and Ottawa in October, and against the backdrop of the sudden and very terrifying rise of the Islamic State in Syria and northern Iraq this year, there is renewed fear and anxiety about terrorism, at home and abroad.

The Islamic State (varyingly known as IS, ISIS and ISIL) has been responsible for unimaginable acts of cruel violence and widespread human rights abuse against women and girls, followers of other religious sects or faiths, ethnic minorities and western hostages. Amnesty International researchers catalogued the horrors in a number of grim reports in recent . . . [more]

Posted in: Justice Issues