Slaw» Administration of Slaw

Can a Google Search Suggestion Be Defamatory?

John Gregory — Fri, 03 Feb 2012 15:08:29 +0000

The Paris court of appeals has decided that a suggested search query generated by the Google Suggest function defamed the company whose name was first entered into the search box. This feature works by displaying the most popular searches performed by other Google searchers associated with the text typed into the search box. So Google doesn’t decide what is displayed; its machines just count and show.

Turns out that one of the most popular associations with the name of the plaintiff company was ‘escroc’, which in French means crook or swindler.

Is this a kind of ‘crowd-sourced’ defamation? What can Google or any search engine realistically do about it? Can the company program its suggestion feature to avoid any words in any language that may have a defamatory meaning? (I guess defamation by context or innuendo may be harder to demonstrate in this process.)

Would it be defamatory if a search for Company X turned up, as an ‘auto-suggest’, CompanyXSucks.com?

The damages were pretty stiff, it seems to me – 50,000 euros.

So: is there a problem here, in your view? Would Canadian law produce the same result? How would you advise your client, the search engine? What about your client Company X, in my hypothetical?

Slaw Site News – 2012-01-26

Administrator — Thu, 26 Jan 2012 22:13:37 +0000

Site news for those who read Slaw only via RSS or email

1. Comment Watch:

In the last week there were 33 comments. You might be particularly interested in these:

the eight comments on Simon Fodden's "Apple's New iBooks Author" discussing the EULA required by that software
the thoughtful exchange on Jamie Maclaren's column, "A Pay or Play Proposition for Access to Justice."
the enthusiastic comments on Ruth Bird's column, "Professional Associations and Why They Matter"

You can subscribe to the comments on Slaw either as a separate matter (RSS, email) or as part of a subscription combining posts and comments (RSS, email).

2. SlawTips

This week's tips on SlawTips are:

Wednesday: Research: Dig Deep

You’ll find a brief excerpt of this week’s tips on Slaw, but the links above will take you to the full versions, along with 100 more tips. Advice you can use — short and to the point — every Tuesday, Wednesday & Thursday.

You can get to SlawTips at either tips.slaw.ca or slawtips.ca and you can subscribe by RSS or email. You can also follow SlawTips on Twitter: @slawtips

3. Maritime Law Book Selected Summaries

This week's Maritime Law Book case summaries are in precis on Slaw and full at cases.slaw.ca.

Alberta Teachers' Association v. Information and Privacy Commissioner (Alta.) et al. 2011 SCC 61 [Judicial review]
R. v. Spencer (M.D.) 2011 SKCA 144 [Search and seizure]
Reference Re Securities Act 2011 SCC 66 [Double aspect doctrine]
R. v. Rudge (D.) 2011 ONCA 791 [Criminal procedure]
R. v. MacIntosh (E.F.) 2011 NSCA 111 [Delay and due process]
Labatt Brewing Co. et al. v. St. John's (City) 2011 NLCA 75 [Property tax valuation]
Girao v. Zarek Taylor Grossman Hanrahan LLP 2011 FC 1070 [Barristers and solicitors duty of integrity]
R. v. Bambrick (R.) 2011 NLCA 79 [Sentencing]
Anderson et al. v. Canada (Attorney General) 2011 NLCA 82 [Class actions]

Thus far, 195 summaries in total are available on cases.slaw.ca. You can subscribe to MLB-Slaw Selected Case Summaries via RSS or email.

Slaw Site News – 2012-01-19

Administrator — Thu, 19 Jan 2012 19:38:15 +0000

Site news for those who read Slaw only via RSS or email

1. Comment Watch:

In the last week there were 80 comments (possibly a record on Slaw). You might be particularly interested in these:

the 30 comments on the post by Simon Fodden, "Same-Sex Divorce and Conflict of Laws," that thoroughly canvassed the topic.
the 17 comments on Connie Crosby's post, "Should There Be Parttime Law School in Canada?" that form a pretty exhaustive list of the part-time law programs that are in fact available
the very lengthy and detailed comment by John Wood on the older post, "Electronic Seals" by John Gregory.

You can subscribe to the comments on Slaw either as a separate matter (RSS, email) or as part of a subscription combining posts and comments (RSS, email).

2. SlawTips

This week's tips on SlawTips are:

Tuesday: Technology: How Come My iPad Won’t Charge When It Is Plugged Into My Computer?
Wednesday: Research: Orphan Results
Thursday: Practice: Top 10 Financial Errors: #6 Think You Don’t Need a Fee Agreement With Each Client.

You can get to SlawTips at either tips.slaw.ca or slawtips.ca and you can subscribe by RSS or email. You can also follow SlawTips on Twitter: @slawtips

3. Maritime Law Book Selected Summaries

This week's Maritime Law Book case summaries are in precis on Slaw and full at cases.slaw.ca.

Royal Bank of Canada v. Swartout et al.
2011 ABCA 362 [Contra proferentem rule ]
Shoppers Drug Mart Inc. et al. v. Ontario (Minister of Health and Long-Term Care) et al. 2011 ONCA 830 [Delegated legislation]
R. v. Pitre (M.S.) 2011 NBCA 106 [Search warrants]
Mallard v. Saskatchewan Financial Services Commission et al. 2011 SKCA 150 [Stare decisis]
Friends of the Canadian Wheat Board et al. v. Canada (Attorney General) et al. 2011 FC 1432 [Authority of Crown ministers]
Ford Credit Canada Ltd. v. Welcome Ford Sales Ltd. et al. 2010 ABQB 798 [Bankruptcy]
Ewachniuk Estate v. Ewachniuk 2011 BCCA 510 [Stare decisis]
Davis v. Guelph (City) 2011 ONCA 761 [Building inspectors & bias]
Daniels v. Daniels 2011 MBCA 94 [Corollary relief in divorce]
Apotex Inc. v. Merck & Co. et al. 2011 FCA 329 [Food and drug control]

Thus far, 186 summaries in total are available on cases.slaw.ca. You can subscribe to MLB-Slaw Selected Case Summaries via RSS or email.

Slaw Site News – 2012-01-12

Simon Fodden — Thu, 12 Jan 2012 15:35:06 +0000

Site news for those who read Slaw only via RSS or email

1. Comment Watch:

In the last week there were 32 comments. You might be particularly interested in these:

the discussion about using GPS tracking on company vehicles following the post by Yosie Saint-Cyr, "Employer Monitoring Employees With GPS Tracking"
the lengthy exchange—15 comments extending into the prior week—on Shaunna Mireau's post, "Queen's Counsel Appointments."

You can subscribe to the comments on Slaw either as a separate matter (RSS, email) or as part of a subscription combining posts and comments (RSS, email).

2. SlawTips

This week's tips on SlawTips are:

Tuesday: Technology: How Come My Digital Camera Pictures Are Always in a Folder Named DCIM?
Wednesday: Research: Look Far as Well as Near
Thursday: Practice: Top 10 Financial Errors: #5 Don’t Track Your Time

You can get to SlawTips at either tips.slaw.ca or slawtips.ca and you can subscribe by RSS or email. You can also follow SlawTips on Twitter: @slawtips

3. Maritime Law Book Selected Summaries

This week's Maritime Law Book case summaries are in precis on Slaw and full at cases.slaw.ca.

Stemijon Investments Ltd. v. Canada (Attorney General) 2011 FCA 299 [Corporate taxation]
R.P. v. R.C. 2011 SCC 65 [Divorce maintenance]
Quebec (Attorney General) v. Canada (Minister of Human Resources and Social Development) et al. 2011 SCC 60 [Paramountcy doctrine]
Lumba v. United Kingdom (Secretary of State for the Home Department) [2011] UKSC 12 [Duty to promulgate policies and rules]
L.M.P. v. L.S. 2011 SCC 64 [Divorce maintenance]
Copthorne Holdings Ltd. v. Minister of National Revenue 2011 SCC 63 [Income tax on non-residents]
Combined Air Mechanical Services Inc. et al. v. Flesch et al. 2011 ONCA 764 [When summary judgments appropriate]

Thus far, 176 summaries in total are available on cases.slaw.ca. You can subscribe to MLB-Slaw Selected Case Summaries via RSS or email.

Privacy and the Receipt of Personal Information From EU Countries

John Gregory — Mon, 09 Jan 2012 17:42:30 +0000

The EU privacy directive (1995 version – I gather that it is being revised, though I don't know on what timetable) provides that member countries may not release personal information outside the EU unless the recipients are bound by equivalent safeguards for privacy.

While the US has a 'safe harbor' agreement with the EU about criteria for judging when the protections are equivalent, Canada does not. On the other hand, we have a generally applicable privacy law (PIPEDA) and some provincial equivalents, plus personal health information laws in most provinces. Are they enough to permit the personal information to come here, or are there problems?

I think for example of a provision like Article 8 of the Directive, about processing of 'special categories of data', like heath care data. This is not to be released without consent of the individual concerned. However, there is an exception for data released for diagnostic or health care reasons, if the person to whom the PI is released is subject to safeguards under the applicable law. (Arrticle 8(3))

Are the provincial health information protection acts (I think of the Personal Health Information Protection Act in Ontario, but most provinces have them, as noted) considered adequate protection for such disclosure from the EU? If there is no official EU-level pronouncement on the topic, have you or your clients run into any problems in getting information transferred from EU countries that would rely on this legislation for authority? Do the transferors (or their lawyers) distinguish between PIPEDA and the specific obligations of the provincial laws in discussing such transfers?

In short, how is this working in practice, given the variety of EU laws implementing the Directive and the variety of laws that apply to the potential recipients?

Are any of the likely revisions to the Directive going to affect operations on this practical level, or are they just aimed at updating for new technology or practices, like data storage in the cloud?

New Slaw Columnists

Administrator — Mon, 09 Jan 2012 16:56:00 +0000

We are pleased indeed to announce that a number of new columnists are joining Slaw.

Paula Black is a legal business development and branding consultant and coach based in Miami, Florida, and has recently been recognized by Managing Partner Magazine as a leading legal marketing expert. She is also the author of three "Little Black Books" on legal marketing and a blog, In Black and White.

Catherine Sanders Reach has recently become the Director, Law Practice Management and Technology for the Chicago Bar Association. Before that she was the Director at the American Bar Association's Legal Technology Resource Center for over ten years. Catherine has a master's degree in Library and Information Studies and worked in library and information science environments for a number of years. Many Slaw readers will know her from her active life as a panelist on technology at many conferences over the recent years.

Slaw is instituting a new group within the columnists, adding Dispute Resolution to the seven groups that already exist. And we've got four new columnists to staff that group:

Karim Benyekhlef is a professor at the Faculty of Law at the University of Montreal and Scientific Director of the Center for International Studies and Research there. Among his many other roles, Karim is the instigator of the first proposed regulations for online conflict, and he also heads the Laboratory on Cyberjustice.

Kari D. Boyle is the Executive Director of the Vancouver-based Mediate BC Society, which offers viable and affordable dispute resolution options to the citizens of British Columbia. Previously, she practiced corporate commercial litigation in Vancouver for 14 years, worked inhouse for 6 years specializing in legal services management and, most recently, provided support to the Civil Justice Reform Working Group and the initiative to create a new set of Supreme Court Civil Rules in British Columbia.

Michael Erdle is a co-founder of Practical Resolutions Inc. in Toronto aimed at assisting those involved in technology and intellectual property disputes to resolve them through facilitated negotiations, mediation and arbitration. Michael has more than 20 years’ experience as a technology and intellectual property lawyer, is a director of the ADR Institute of Ontario and the Canadian IT Law Association, and has been designated a Chartered Mediator and Arbitrator by the ADR Institute of Canada.

Ian R. Mackenzie has been an adjudicator and mediator for ten years. He was a vice-chair of the Public Service Labour Relations Board until 2011 and is currently a vice-chair with the Human Rights Tribunal of Ontario. He was the English course director for a training program for new federal tribunal members for five years and has made many presentations on administrative justice issues. He is writing a book on the law of decision writing.

A Request to Vote, and Holiday Wishes

Administrator — Tue, 20 Dec 2011 19:43:03 +0000

You'll know from our announcement a couple of weeks ago that Slaw is in the running for best legal blog (legal technology category) in the ABA Journal Blawg 100 event. Seems we're doing well in the voting but could use a last minute flurry to get us to the top. So if you're minded to vote for Slaw but haven't got around to it yet, this would be a good time to nip on over to the ABA site, register to vote, and cast your ballot for us in the Legal Technology category. It only takes a few seconds, and the registration requirement is nothing fearsome: it's there simply to regulate voting. We thank you.

And we at Slaw wish you Happy Hanukkah, Merry Christmas, and a great time over the holidays. Posting's likely to be slow here for the next couple of weeks, but we'll be back in fine form come the new year.

Seasonal Disclaimers – and Copyright?

John Gregory — Mon, 19 Dec 2011 15:51:01 +0000

'Tis the season for law firms (and no doubt others) to send out season's greetings by email, most often accompanied by the usual wordy and sometimes bilingual notices that the content of the email may be confidential, privileged and subject to diverse prohibitions that we are more or less politely admonished to comply with.

Here's a typical, though polite, version (French omitted):

CONFIDENTIALITY NOTICE: The contents of this electronic mail message are confidential and strictly reserved for the sole use of its intended recipients. This message may contain information protected by the solicitor-client privilege. If you receive this message in error, please notify the sender immediately and delete the original message as well as all copies. Any disclosure, copying, distribution or reliance on the contents of the information is strictly prohibited. Thank you.

This year I have seen one that despite its economy of expression has an element that's new to me: a copyright claim. It's in an email whose subject line is "Happy Holidays from Your Friends at [Big Law firm]" and besides the medium-tech 'e-card' to which it links, its only content is this (I omit the French):

"This e-mail message is privileged, confidential and subject to copyright. Any unauthorized use or disclosure is prohibited."

The usual question arises whether it is helpful to claim privilege in something that is clearly not privileged, or whether that undermines one's assertion of privilege when the content really is privileged.

The new question, for me, is why one asserts copyright. Copyright arises automatically in our law, though possibly protecting it internationally would be helped by an assertion – but doesn't the Berne Convention require the use of © to do that, and a date?

Is the idea to prevent recipients from borrowing/pirating/emulating the firm's finely honed expression of its legal work (assuming charitably that it did not insert the copyright claim solely into its holiday greetings)? Given the amount of borrowing from long-standing and widely-distributed precedents in legal drafting, does that really hold water anyway? I suppose emails are not usually drafted using the forms books…

Is it an attempt to prevent people from posting online cease-and-desist notices that law firms send out to people who their clients think have defamed them? It is becoming common for such letters to show up on the recipients' web sites, partly to expose what the recipients perceive as bullying, and partly to laugh at the pomposity of some of the writers. (Drafters of such letters, take note.)

Is there a new problem that this new notice is aimed at resolving, or is it just another cautionary note from a profession that is good at detecting risk and trying to avert it? Or is it a bit of overkill?

Slaw Site News – 2011-12-15

Administrator — Thu, 15 Dec 2011 18:18:34 +0000

Site news for those who read Slaw only via RSS or email

1. Comment Watch:

In the last week there were 44 comments. You might be particularly interested in these:

The exchange between Gary Rodrigues and Simon Chester concerning Geneviève Lay's post, "Language Rights Issues Returning to the Supreme Court?"
the comment by CanLII President, Colin Lachance, expanding a little on what sort of numbers it takes to be a popular case on CanLII.

You can subscribe to the comments on Slaw either as a separate matter (RSS, email) or as part of a subscription combining posts and comments (RSS, email).

2. SlawTips

This week's tips on SlawTips are:

Tuesday: Technology: Dealing With DOCX, XLSX and PPTX Files if You Use an Older Version of Office
Wednesday: Research: New Laws, Compliance, and Alerts
Thursday: Practice: Top 10 Financial Errors: #1 – Cash Flow

You can get to SlawTips at either tips.slaw.ca or slawtips.ca and you can subscribe by RSS or email. You can also follow SlawTips on Twitter: @slawtips

3. Maritime Law Book Selected Summaries

This week's Maritime Law Book case summaries are in precis on Slaw and full at cases.slaw.ca.

R. v. Wheaton (A.) 2011 NLTD(G) 148 [Amending informations]
R. v. Nguyen (T.V.) et al. 2011 BCCA 471 [Forfeiture of offence-related property]
R. v. Losier (S.A.) 2011 NBCA 102 [Right to use language of choice in dealings with police]
Newfoundland and Labrador (Attorney General) v. Information and Privacy Commissioner (Nfld. and Lab.) 2011 NLCA 69 [FOI re crown documents]
Hart v. Roman Catholic Episcopal Corp. of the Diocese of Kingston 2011 ONCA 728 [Internal church government]

Thus far, 166 summaries in total are available on cases.slaw.ca. You can subscribe to MLB-Slaw Selected Case Summaries via RSS or email.

Internet Defamation – Worse Than Other Media?

John Gregory — Mon, 12 Dec 2011 17:59:09 +0000

We read from time to time that Internet defamation is worse than that in other media because of its global reach and persistence over time. Thus the Ontario Court of Appeal in Barrick v Lopehandia 2004 CanLII 12938 issued an injunction against further defamation, in part because of the Internet’s character as “potentially a medium of virtually limitless international defamation” (the Court quoted Matthew Collins, The Law of Defamation and the Internet.) The court (by majority) also increased fivefold the damages awarded at trial, for similar reasons.

Recently the British Columbia Supreme Court granted ex parte injunctions against publication of defamatory material. Nazerali v Mitchell 2011 BCSC 1581 (CanLII) (and against any transfer of domains or material that might facilitate the spread of the libel). See a comment on the case here.

On the other hand, the Ontario Superior Court recently held in Baglow v Smith 2011 ONSC 5131 (CanLII) that comments on a blog should not necessarily give rise to a claim in defamation, when the person alleging defamation has a right of reply in the same blog. The readers are expecting a reply, not a lawsuit, said the Court. It was not appropriate for a participant in a comment thread to go off to court, dropping out of the debate. One can ‘remove the sting’ by responding. The judgment quotes Justice Binnie in the SCC’s WIC Radio decision on fair comment, that public controversy can be a rough trade, and the law needs to accommodate its requirements.

Are the rules about what one can or should say online different from those that apply in print? Should one be compelled to defend oneself online? Are insults less defamatory there (here)?

Slaw Site News – 2011-12-08

Administrator — Thu, 08 Dec 2011 15:13:15 +0000

Site news for those who read Slaw only via RSS or email

1. Comment Watch:

In the last week there were 44 comments. You might be particularly interested in these:

The comments on Bob Berring's post, "Legal Research Training’s End"
The thoughtful comment by Makwaminising_nini on the post "Dunkin’ the Victim: a Note on Legal-Political Background of the Current Attawapiskat Campaign" by Michael Posluns
The 9 comments on Simon Fodden's post "Apple's Siri on iPhone 4s and Legal Privilege

You can subscribe to the comments on Slaw either as a separate matter (RSS, email) or as part of a subscription combining posts and comments (RSS, email).

2. SlawTips

This week's tips on SlawTips are:

Tuesday: Technology: Install or Update Multiple Computer Apps in Minutes With Ninite
Wednesday: Research: Consideration of a Statute
Thursday: Practice: Kick Procrastination to the Curb!

You can get to SlawTips at either tips.slaw.ca or slawtips.ca and you can subscribe by RSS or email. You can also follow SlawTips on Twitter: @slawtips

3. Maritime Law Book Selected Summaries

This week's Maritime Law Book case summaries are in precis on Slaw and full at cases.slaw.ca.

Sierra Club Canada v. Ontario (Minister of National Resources) et al. 2011 ONSC 4655 [Animal species at risk]
Manitoba Association of Health Care Professionals v. Nor-Man Regional Health Authority Inc. 2011 SCC 59 [Labour law]
Hubley v. Hubley Estate 2011 PECA 19 [Nonrecoverable tort damages]
R. v. Earhart (B.A.) 2011 BCCA 490 [Right to remain silent]
Burrell v. Metropolitan Entertainment Group et al. 2011 NSCA 108 [Duty of care to gambling addict]

Thus far, 161 summaries in total are available on cases.slaw.ca. You can subscribe to MLB-Slaw Selected Case Summaries via RSS or email.

Slaw Makes ABA Blawg 100 – Vote for Us

Administrator — Tue, 06 Dec 2011 18:14:14 +0000

We're proud to say that Slaw has been selected as one of the 5th Annual ABA Journal Blawg 100. The kind words describing Slaw run as follows:

"Slaw is to law what Slate is to popular culture,” law blogger Robert Ambrogi writes. “It is an online magazine with a diverse array of writers and perspectives covering a wide array of legal topics. It is always interesting, always smart and always insightful. It represents the best of what a legal blog—strike that—any blog can aspire to be."

To be nominated is a real honour. But there's another stage to things: you're encouraged to go online, register, and vote for your favourite law blog within each of a dozen categories. We'd love it if you voted for Slaw, which finds itself one of ten great candidates in the Legal Technology category. (There doesn't seem to be a "general" category.) We came in 2nd in 2008, when we were last nominated; this time let's see if we can't be #1.

Slaw and Sponsorship

Administrator — Thu, 01 Dec 2011 14:00:14 +0000

After six-and-a-half years of daily publication, it's become time for Slaw to accept sponsorship. As our body of past posts gets ever larger—a shade under 8,000 at the moment—and as the site becomes ever more developed, expenses rise. And because continual development is the watchword on the web, keeping Slaw relevant and responsive will mean financial costs as we work to stay abreast of the changes in technology.

So shortly after this post goes up, you'll see the banners from those businesses who have agreed to help us keep Slaw going—and improving. Click on them to explore the products they offer you.

Thanks to them, we're headed into the next six-and-a-half years of life. Stay with us. We'll make it interesting.

Slaw Site News – 2011-11-24

Administrator — Thu, 24 Nov 2011 16:39:40 +0000

Site news for those who read Slaw only via RSS or email

1. Comment Watch:

In the last week there were 39 comments. You might be particularly interested in these:

the continuing discussion of Gabriel Granatsein's post Mandatory Union Awareness Training at Apple
the informative comment by Carrie Liddy on guest blogger Philippa Lawson's informative post on Bill C-12 and “Lawful Authority” Under PIPEDA
the thoughtful comments on Nelson & Simek's post Ruminations on the Ethics of Law Firm Information Security

You can subscribe to the comments on Slaw either as a separate matter (RSS, email) or as part of a subscription combining posts and comments (RSS, email).

2. SlawTips

This week's tips on SlawTips are:

Tuesday: Technology: 50GB Free Cloud Storage for Life for iPhones and iPads From Box.net
Wednesday: Research: Real Time Searching
Thursday: Practice: Interruptions Are Just a State of Mind

You can get to SlawTips at either tips.slaw.ca or slawtips.ca and you can subscribe by RSS or email. You can also follow SlawTips on Twitter: @slawtips

3. Maritime Law Book Selected Summaries

This week's Maritime Law Book case summaries are in precis on Slaw and full at cases.slaw.ca.

Walker v. British Columbia Securities Commission 2011 BCCA 415 [Fraudulent trading in securities]
Sordi v. Sordi 2011 ONCA 665 [Multiple family law issues]
Kimoto et al. v. Canada (Attorney General) et al. 2011 FCA 291 [Governmental administrative action]
Jeffery et al. v. London Life Insurance Co. et al. 2011 ONCA 683 [Class actions re participating account transactions]
Giesbrecht v. Canada Life Assurance Co. et al. 2011 MBQB 244 [Investment counsellor negligence]
R. v. D.N.C. 2011 ONCA 672 [Admissibility of similar acts]
R. v. Cater (K.) et al. 2011 NSPC 75 [Public interest privilege]

Thus far, 149 summaries in total are available on cases.slaw.ca. You can subscribe to MLB-Slaw Selected Case Summaries via RSS or email.

Colin Lachance, Joan Rataic-Lang

Administrator — Mon, 21 Nov 2011 18:11:32 +0000

We're very pleased indeed to announce that Colin Lachance and Joan Rataic-Lang have joined our roster of columnists.

Colin Lachance is the newly appointed President and CEO of CanLII. A lawyer by training, his career before CanLII was largely focused on communications law and policy. Following a few years in the marketing and government relations ends of the telecommunications industry, Colin started part-time studies towards an LL.M. at the University of Ottawa. As he puts it, to his "surprise and delight," grad school opened him up to very different possibilities and ultimately a career change that brought him to CanLII. He now hopes to complete his LL.M. in 2012 with a new focus on open access to legal information.

Colin joins the group of columnists writing under the rubric Justice Issues.

Joan Rataic-Lang has held the dual role of Executive Director and Library Manager at the Toronto Lawyers Association since July, 2010, meaning that, among her many other duties, she is responsible for the Court House Library at 361 University Ave. Previous to that she was Library Manager at Aird & Berlis, Gowlings and most recently, Osler Hoskin and Harcourt. Immediately upon graduation with her McGill M.L.I.S. Joan worked in library automation and has also spent time in education and executive search.

Joan will write within the Legal Information group of columnists.

Slaw Site News – 2011-11-17

Administrator — Thu, 17 Nov 2011 21:54:23 +0000

Site news for those who read Slaw only via RSS or email

1. Comment Watch:

In the last week there were 56 comments. You might be particularly interested in these:

the 15 comments on Yosie Saint-Cyr's post "Should the Government Make Remembrance Day a Public (Statutory) Holiday?", which surface concerns about militarization and whether the point is to have a holiday.
the extended exchange between David Cheifetz and guest blogger Erik Magraken on his post, "Tort Reform For The Better: Adding Liquidity to Dry Judgements."
the debate following Gabriel Granatstein's post, "Mandatory Union Awareness Training at Apple"

You can subscribe to the comments on Slaw either as a separate matter (RSS, email) or as part of a subscription combining posts and comments (RSS, email).

2. SlawTips

This week's tips on SlawTips are:

Tuesday: Technology: Use Application Groups to Organize Apps on Your Ipad or Iphone
Wednesday: Research: Look for Useful Things
Thursday: Practice: Follow Up…for Results

You can get to SlawTips at either tips.slaw.ca or slawtips.ca and you can subscribe by RSS or email. You can also follow SlawTips on Twitter: @slawtips

3. Maritime Law Book Selected Summaries

This week's Maritime Law Book case summaries are in precis on Slaw and full at cases.slaw.ca.

R. v. Vuradin (F.) 2011 ABCA 280 [Criminal jury charge]
R. v. Sexton (K.M.) 2011 NBCA 97 [Unreasonable search & seizure]
R. v. Sarrazin (R.) et al. 2011 SCC 54 [Criminal appeals]
McQueen v. Echelon General Insurance Co. 2011 ONCA 649 [Contract damages]
Felipa v. Canada (Minister of Citizenship and Immigration) 2011 FCA 272 [Tenure of federal judges]
Beacon Hill Service (2000) Ltd. v. Esso Petroleum Canada et al. 2011 ABQB 138 [Barrister as potential witness]
Thomas v. Aviva Insurance Co. 2011 NBCA 96 [Insurance]

Thus far, 142 summaries in total are available on cases.slaw.ca. You can subscribe to MLB-Slaw Selected Case Summaries via RSS or email.

Slaw Site News – 2011-11-10

Administrator — Thu, 10 Nov 2011 15:54:10 +0000

Site news for those who read Slaw only via RSS or email

1. Comment Watch:

In the last week there were 47 comments. You might be particularly interested in these:

the 14 comments on Dave Billinsky's post "Occupy Vancouver Demands Released";
the exchange on guest blogger Erik Makgren's post "Tort Reform for the Better: Adding Liquidity to Dry Judgements".

You can subscribe to the comments on Slaw either as a separate matter (RSS, email) or as part of a subscription combining posts and comments (RSS, email).

2. SlawTips

This week's tips on SlawTips are:

Tuesday: Technology: Use the Space Bar to Advance in a Browser
Wednesday: Research: Spam or Not
Thursday: Practice: How Am I Doing?

You can get to SlawTips at either tips.slaw.ca or slawtips.ca and you can subscribe by RSS or email. You can also follow SlawTips on Twitter: @slawtips

3. Maritime Law Book Selected Summaries

This week's Maritime Law Book case summaries are in precis on Slaw and full at cases.slaw.ca.

Workers' Compensation Board (B.C.) v. Human Rights Tribunal (B.C.) et al. 2011 SCC 52 [Administrative law]
Wallace v. Canadian Pacific Railway et al. 2011 SKCA 108 [Disqualification of counsel]
Canada (Attorney General) v. Mowat 2011 SCC 53 [Judicial review]
R. v. Madden (K.) 2011 ONCA 656 [Jury charge]
R. v. Le (T.D.) 2011 MBCA 83 [Search and seizure]
Clark v. Werden 2011 ONCA 619 [Champerty]
R. v. Barros (R.) 2011 SCC 51 [Informer privilege]

Thus far, 135 summaries in total are available on cases.slaw.ca. You can subscribe to MLB-Slaw Selected Case Summaries via RSS or email.

Slaw Site News – 2011-11-03

Administrator — Thu, 03 Nov 2011 14:04:39 +0000

Site news for those who read Slaw only via RSS or email

1. Comment Watch:

In the last week there were 55 comments. You might be particularly interested in the thoughtful discussion following Tamir Israel's inaugural post on Crookes v. Newton and intermediary liability.

You can subscribe to the comments on Slaw either as a separate matter (RSS, email) or as part of a subscription combining posts and comments (RSS, email).

2. SlawTips

This week's tips on SlawTips are:

Tuesday: Technology: Four Tips for Easy Navigation of PowerPoint Slide Deck
Wednesday: Research: Budget Your Research
Thursday: Practice: Start a “Thank You” File

You can get to SlawTips at either tips.slaw.ca or slawtips.ca and you can subscribe by RSS or email. You can also follow SlawTips on Twitter: @slawtips

3. Maritime Law Book Selected Summaries

This week's Maritime Law Book case summaries are in precis on Slaw and full at cases.slaw.ca.

Toronto-Dominion Bank v. Stevens 2011 NSSC 343 [Mortgages]
Spence v. Canada Revenue Agency 2011 FC 426 [Income tax interest waiver]
Smith v. Inco Ltd. 2011 ONCA 628 [Private nuisance]
Saanich (District) v. Aviva Insurance Co. of Canada 2011 BCCA 391 [Insurer's duty to defend]
Lonechild v. Federation of Saskatchewan Indian Nations et al. 2011 SKQB 315 [Native rights]
R. v. Jones (R.) 2011 ONCA 632 [Search and seizure of computer]
D.M.M. v. T.B.M. 2011 YKCA 8 [Apprehension of bias]

Thus far, 128 summaries in total are available on cases.slaw.ca. You can subscribe to MLB-Slaw Selected Case Summaries via RSS or email.

Slaw Site News – 2011-10-27

Simon Fodden — Thu, 27 Oct 2011 11:47:47 +0000

Site news for those who read Slaw only via RSS or email

1. Comment Watch:

In the last week there were 52 comments. You might be particularly interested in these:

"Mediation can offer a distinct good that no other process can or is designed to offer, viz., the possibility of re-orienting the parties to each other."

an interesting exchange about John O'Sullivan's post on Quantum Physics and Mediation
"A lawyer can article in a transactional Bay Street practice, and that is considered sufficient and necessary practical experience to conduct a criminal defense practice in Northern Ontario. Why?"
a discussion of Adam Dodek's proposal, Articling and Access to Justice: An Ontario Legal Corps – Why Not?

You can subscribe to the comments on Slaw either as a separate matter (RSS, email) or as part of a subscription combining posts and comments (RSS, email).

2. SlawTips

This week's tips on SlawTips are:

Tuesday: Technology: Google Mapmaker Arrives in Canada
Wednesday: Research: Pay Attention to the Privy Council Office
Thursday: Practice: Create Feedback Loops for Success

You can get to SlawTips at either tips.slaw.ca or slawtips.ca and you can subscribe by RSS or email. You can also follow SlawTips on Twitter: @slawtips

3. Maritime Law Book Selected Summaries

This week's Maritime Law Book case summaries are in precis on Slaw and full at cases.slaw.ca.

United Mexican States v. Cargill Inc. 2011 ONCA 622 [Arbitration of Free Trade agreement]
McCaffrey v. Paleolog 2011 BCCA 378 [Family law]
L.C. et al. v. Alberta et al. 2011 ABQB 12 [Practice rules]
R. v. Kelsy (M.) 2011 ONCA 605 [Warrantless search and seizure]
R. v. Katigbak 2011 SCC 48 [Obscenity defences]
Crookes et al. v. Newton 2011 SCC 47 [Hyperlinking and libel]

Thus far, 119 summaries in total are available on cases.slaw.ca. You can subscribe to MLB-Slaw Selected Case Summaries via RSS or email.

Tamir Israel Joins Slaw

Administrator — Wed, 26 Oct 2011 20:13:00 +0000

I'm pleased to announce that Tamir Israel has joined Slaw as a regular blogger.

Tamir is staff lawyer with the Samuelson-Glushko Canadian Internet Policy & Public Interest Clinic (CIPPIC) at the University of Ottawa Faculty of Law, where he conducts research and advocacy on various digital rights-related topics. The issues that concern him at CIPPIC include online privacy and anonymity, net neutrality, intellectual property, intermediary liability, spam, e-commerce, and consumer protection generally. Tamir also lectures on Internet regulation matters at the University of Ottawa's Faculty of Graduate & Postdoctoral Studies.

Please welcome Tamir to the company of Slawyers.… [more]

Browsewrap "Contract" Upheld in Canada

John Gregory — Fri, 21 Oct 2011 13:36:28 +0000

The British Columbia Supreme Court has recently given judgment for Century 21 Real Estate company against a company (affiliated with Rogers Communications) that scraped real estate listing information from the Century 21 sites and repackaged it on its own site: Century 21 v Rogers Communications 2011 BC 1196 .

The court thoroughly reviewed US and Canadian law on the topic and recited a number of factors that might support a finding that a ‘browsewrap’ contract (i.e. one that did not depend on any active assent to its terms, but that operated by mere use of the web site) would be enforceable. The list is much like that generated by US courts in similar cases, and summarized in a very useful article in The Business Lawyer in 2003.^*

A similar result was given in Quebec on similar facts inCanadian Real Estate Association v Sutton Realty2003 CanLII 22519 (QC CS). (The decision was cited in the BC case.)

It seems to me that the common element of almost all the US cases and all the Canadian cases where a browsewrap ‘contract’ has been upheld is that the defendant was doing something that was obviously illicit, namely taking content from a website in order to use it in competition with the owner of the source website. Courts just don’t take kindly to that, and if they have to invent an agreement to shut it down, they will. It’s what the French courts would call ‘parasitism’, which is an extra-statutory remedy they have devised for activity they don’t like where someone is profiting from somebody else’s efforts in a way not foreseen by the Code of Intellectual Property.

The plaintiff in the BC case also won on a copyright argument. It did not persuade the court, however, that Rogers had committed ‘trespass to chattels’. The court was not prepared to import that notion into BC law, at least not on the facts in the case.

Do you find the result acceptable? The reasoning? Would it be better for courts not to invent contracts in such circumstances and find some kind of unjust enrichment or other equitable remedy for the behaviour to be sanctioned?

(I find it somehow satisfying that Rogers lost this one, given that company’s ‘success’ in arguing (in Kanitz v Rogers Cable Inc 2002 CanLII 49415 (ON SC) also cited in the BC case) that its customers had to live with the way the web worked, and burying a notice of a change in a contract five levels deep on a website was perfectly acceptable commercial dealing. Rogers won that one in an Ontario court, but lost it in the legislature when the type of change they made was banned in the (then) new Consumer Protection Act, 2002.)

___________________________________

* C. Kunz, J, Ottaviani, E. Ziff, J. Moringiello, K. Porter and J. DeBrow, “Browse-Wrap Agreements: Validity of Implied Assent in Electronic Form Agreements”, 59 The Business Lawyer 279 (2003)

[hat tip: Blakes Bulletin]

Slaw Site News – 2011-10-20

Administrator — Thu, 20 Oct 2011 17:06:23 +0000

Site news for those who read Slaw only via RSS or email

1. Comment Watch:

In the last week there were 36 comments. You might be particularly interested in these:

8 informative comments on Connie Crosby's post on the Person's Day case, going deeper and deeper into the legal history of that case.
5 very thoughtful comments on John O'Sullivan's post on Quantum Physics and Mediation

You can subscribe to the comments on Slaw either as a separate matter (RSS, email) or as part of a subscription combining posts and comments (RSS, email).

2. SlawTips

This week's tips on SlawTips are:

Tuesday: Technology: Turning the Tables
Wednesday: Research: Mobile Offline Law
Thursday: Practice: Implement Your Plans to Reach Your Goals

You can get to SlawTips at either tips.slaw.ca or slawtips.ca and you can subscribe by RSS or email. You can also follow SlawTips on Twitter: @slawtips

3. Maritime Law Book Selected Summaries

This week's Maritime Law Book case summaries are in precis on Slaw and full at cases.slaw.ca.

R. v Woodward (T.E.C.) 2011 ONCA 610 [Internet luring]
Thibodeau v. Air Canada 2011 FC 876 [Right to use French or English]
SeaWorld Parks & Entertainment LLC v. Marineland of Canada Inc. 2011 ONCA 616 [Interpretation of contracts]
R. v. Roks (A.) 2011 ONCA 618 [Sentencing]
R. v. J.M.H. 2011 SCC 45 [Criminal appeals]
R. v. Côté (A.) 2011 SCC 46 [Exclusion of evidence]
J.R. Investments Ltd. v. Moncton Flying Club et al. 2011 NBQB 256 [Banking]

Thus far, 113 summaries in total are available on cases.slaw.ca. You can subscribe to MLB-Slaw Selected Case Summaries via RSS or email.

Noted on Slaw

Administrator — Thu, 20 Oct 2011 12:05:36 +0000

When you next visit the website, you'll see a few changes on Slaw. We've spruced up the site a little, mostly around the top banner, and we've made the recent new features on Slaw a bit more prominent by giving them menu icons at the very top. TalkLaw/ParLoi, MLB-Slaw Case Summaries, and SlawTips have already been introduced here — indeed, SlawTips is already venerable by web standards and has a healthy following of its own. But Noted on Slaw is brand new.

When Delicious got sold, it broke the right-column feature called Slaw Linkblog, where a number of us would make very brief posts about things that caught our eye. We've now instituted something similar that also resides in the right column, Noted on Slaw, to capture those items that are of passing interest or that we can't manage to make a full post about.

Though Noted doesn't have a web page all of its own, you can subscribe by RSS or email. And if you follow Slaw on Twitter (@slaw_dot_ca) you'll find that you get announcements of things Noted on Slaw within the regular Twitter stream.

Please let us know if you have any difficulty with any of this — or simply if you like it. We do enjoy hearing from you.

Slaw Site News – 2011-10-13

Administrator — Thu, 13 Oct 2011 20:05:30 +0000

Site news for those who read Slaw only via RSS or email

1. Comment Watch:

In the last week there were 22 comments. You might be particularly interested in the informative comment by John Gregoryupdating his own post, "Electronic Transferable Records," from March of this year.

You can subscribe to the comments on Slaw either as a separate matter (RSS, email) or as part of a subscription combining posts and comments (RSS, email).

2. SlawTips

This week's tips on SlawTips are:

Tuesday: Technology: The Google Doodles Archive
Wednesday: Research: Real-Time Research
Thursday: Practice: Listen In Order to Lead

You can get to SlawTips at either tips.slaw.ca or slawtips.ca and you can subscribe by RSS or email. You can also follow SlawTips on Twitter: @slawtips

3. Maritime Law Book Selected Summaries

This week's Maritime Law Book case summaries are in precis on Slaw and full at cases.slaw.ca.

Sutherland et al. v. Hudson’s Bay Co. et al. 2011 ONCA 606 [Pensions]
R. v. Lawler (C.D.) 2011 MBPC 53 [Breathalyzer]
Hollinger Inc. et al., Re 2011 ONCA 579 [Settlements]
R. v. Deveau (T.M.) 2011 NSCA 85 [Courts]
Bodnar et al. v. Cash Store Inc. et al. 2011 BCCA 384 [Class actions]

Thus far, 106 summaries in total are available on cases.slaw.ca. You can subscribe to SlawTips via RSS or email.

Slaw Site News – 2011-10-05

Simon Fodden — Fri, 07 Oct 2011 13:41:33 +0000

Site news for those who read Slaw only via RSS or email

1. Comment Watch:

In the last week there were 35 comments. You might be particularly interested in:

a long and thoughtful comment by "A Recent Grad" on The Future of Articling in Ontario
the other 8 comments on Omar Ha-Redeye's post on The Future of Articling in Ontario.
the comments to Jason Wilson's provocative column, I Am Now an App.

You can subscribe to the comments on Slaw either as a separate matter (RSS, email) or as part of a subscription combining posts and comments (RSS, email).

2. SlawTips

This week's tips on SlawTips are:

Tuesday: Technology: Google’s Amazing New “Search by Image” Functionality
Wednesday: Research: Follow the Class
Thursday: Practice: Plan for Success

You can get to SlawTips at either tips.slaw.ca or slawtips.ca and you can subscribe by RSS or email.

3. Maritime Law Book Selected Summaries

This week's Maritime Law Book case summaries are in precis on Slaw and full at cases.slaw.ca.

2011 MBCA 77 [Practice]
Carter Brothers Ltd. v. Registrar of Motor Vehicles (N.B.) 2011 NBCA 81 [Delegated legislation]
Ladner v. Wolfson et al. 2011 BCCA 370 [Constructive trust]
Pacific Newspaper Group Inc. v. Communications, Energy and Paperworkers Union of Canada, Local 2000 et al. 2011 BCCA 373 [Administrative law]
R. v. Twitchell (M.A.) 2010 ABQB 693 [Search warrant, laptop]

Thus far, 101 summaries in total are available on cases.slaw.ca. You can subscribe to SlawTips via RSS or email.

Send Us Your Events: TalkLaw/ParLoi on Slaw

Administrator — Wed, 05 Oct 2011 14:06:37 +0000

We tend to get requests at Slaw to publish notices of upcoming events of interest to the legal profession. And often we'll come across such planned events in the course of checking out the news of the day. This use of Slaw for announcements is somewhat haphazard, though — and an entry about an event soon disappears off the main page. So to see if we can improve our reporting of upcoming events, we've launched TalkLaw/ParLoi. (You can get to it via either http://talklaw.slaw.ca or http://talklaw.ca.)

TalkLaw/ParLoi is essentially a cluster of Google calendars for various Canadian cities where events happening in those cities can be posted. You can see a brief version of the combined calendar in Slaw's sidebar on the right and you can get the full version of the calendar on our sister site TalkLaw/ParLoi. You can, of course, simply keep your eye on the calendar as a means of staying in touch, or you can subscribe to the calendar of your choice in your own calendar.

Working with more than a dozen Google calendars can be a bit tricky, so there are bound to be bugs and infelicities. We welcome reports about these from you.

Even more, though, we welcome information from you about upcoming events. Send it to addevent@talklaw.ca. Increasingly events that take place in one city are made available generally via webcasting, so please indicate whether or not the event you're notifying us about will in fact be webcast. A double asterisk (**) at the start of event titles will mark events that are available online in this way.

Adam Dodek

Administrator — Tue, 04 Oct 2011 14:37:43 +0000

We're pleased to announce that Adam Dodek is joining Slaw.

Adam is an Associate Professor in the common law section of the University of Ottawa’s Faculty of Law. He teaches and writes about public law, legal ethics, the legal profession and the Supreme Court of Canada. He is a founding member of the Canadian Association for Legal Ethics (CALE). And at the moment he is writing a book about solicitor-client privilege. You might take a look at his recent work, "Courthouse Cancellations and Challenges to Self-Regulation: Correspondent’s Report from Canada" (Legal Ethics, Vol. 14, No. 1, pp. 125-28, Summer 2011) which:

… addresses the continuing Canadian angst regarding self-regulation of the legal profession and the continuing investigation into allegations of judicial misconduct against Associate Chief Justice Lori Douglas of the Manitoba Court of Queen's Bench, stemming from her actions prior to her appointment to the bench.

Slaw Site News – 2011-09-29

Administrator — Thu, 29 Sep 2011 23:25:45 +0000

Site news for those who read Slaw only via RSS or email

1. Comment Watch:

In the last week there were 29 comments. You might be particularly interested in two lengthy and detailed comments by Don Laird on Is It Possible to Secure Law Firm Data?

You can subscribe to the comments on Slaw either as a separate matter (RSS, email) or as part of a subscription combining posts and comments (RSS, email).

2. SlawTips

This week's tips on SlawTips are:

Tuesday: Technology: Send a Text Message to a Mobile Phone via Email
Wednesday: Research: Leveraging Google Advanced Search
Thursday: Practice: Lead…More So Now Than Ever Before…

You can get to SlawTips at either tips.slaw.ca or slawtips.ca and you can subscribe by RSS or email.

3. Maritime Law Book Selected Summaries

This week's Maritime Law Book case summaries are in precis on Slaw and full at cases.slaw.ca.

R. v. Topp (J.P.) 2011 SCC 43 [Sentencing]
VSL Canada Ltd. v. Workplace Health, Safety and Compensation Commission (N.B.) et al. 2011 NBCA 76 [Workers' compensation]
W.J.Q.M. et al. v. A.M.A. et al. 2011 SKQB 317 [Surrogacy agreements]
R. v. McCowan 2011 ABPC 79 [Charter rights & non-governmental authority]
Girouard v. Druet 2011 NBQB 204 [Sale of land by email contract]

Thus far, 96 summaries in total are available on cases.slaw.ca. You can subscribe to SlawTips via RSS or email.

Slaw Site News – 2011-09-22

Administrator — Thu, 22 Sep 2011 23:33:49 +0000

Site news for those who read Slaw only via RSS or email

1. Comment Watch:

In the last week there were 30 comments. You might be particularly interested in these:

You can subscribe to the comments on Slaw either as a separate matter (RSS, email) or as part of a subscription combining posts and comments (RSS, email).

2. SlawTips

This week's tips on SlawTips are:

Tuesday: Technology: MS Outlook Tip: Drag and Drop Items of One Type to Create Another
Wednesday: Research: Search in Google Plus
Thursday: Practice: Guard Your Castle to Keep Client Confidences Safe

You can get to SlawTips at either tips.slaw.ca or slawtips.ca and you can subscribe by RSS or email.

3. Maritime Law Book Selected Summaries

This week's Maritime Law Book case summaries are in precis on Slaw and full at cases.slaw.ca.

Tippett v. Canada (Minister of Public Safety and Emergency Preparedness) 2011 FC 814 [Prisons]
Alberta Teachers’ Association v. Information and Privacy Commissioner (Alta.) 2011 ABQB 19 [Administrative Law]
Savanna Energy Services Corp. v. CanElson Drilling Inc. et al. 2010 ABQB 645 [Barristers and Solicitors]
Canadian Society of Immigration Consultants v. Canada (Minister of Citizenship and Immigration) 2011 FC 669 [Immigration]
R. v. Hatzel (C.E.) 2011 SKPC 59 [Civil Rights]

Thus far, 91 summaries in total are available on cases.slaw.ca. You can subscribe to SlawTips via RSS or email.

Slaw Site News – 2011-09-15

Administrator — Thu, 15 Sep 2011 15:58:59 +0000

Site news for those who read Slaw only via RSS or email

1. Comment Watch:

In the last week there were (once again, exactly!) 33 comments. You might be particularly interested in these:

(Law) School's in again, so it's not surprising there were some meaty comments on Ted Tjaden's post on "Legal Research and Writing Skills in Law School"

You can subscribe to the comments on Slaw either as a separate matter (RSS, email) or as part of a subscription combining posts and comments (RSS, email).

2. SlawTips

This week's tips on SlawTips are:

Tuesday: Technology: 5 Ways to Make an Easy-to-Remember, Ultra-Secure Password
Wednesday: Research: Be Creative
Thursday: Practice: Spotting the Embezzler…

You can get to SlawTips at either tips.slaw.ca or slawtips.ca and you can subscribe by RSS or email.

3. Maritime Law Book Selected Summaries

This week's Maritime Law Book case summaries are in precis on Slaw and full at cases.slaw.ca.

Regular v. Law Society of Newfoundland and Labrador 2011 NLCA 54 [Barristers and Solicitors]
R. v. R.D. 2010 ONCA 899 [Criminal Law]
Gagliano v. Gomery et al. 2011 FCA 217 [Administrative Law]
Autoweld Systems Ltd. v. CRC-Evans Pipeline International Inc. et al. 2011 ABCA 243 2011 ABCA 243 [Company Law]
Autoweld Systems Ltd. v. CRC-Evans Pipeline International Inc. et al. 2011 ABQB 265 [Company Law]
Attila Dogan Construction and Installation Co. v. AMEC Americas Ltd. et al. 2011 ABQB 175 [Practice]

Thus far, 86 summaries in total are available on cases.slaw.ca. You can subscribe to SlawTips via RSS or email.

Slaw Site News – 2011-09-08

Administrator — Thu, 08 Sep 2011 19:13:14 +0000

Site news for those who read Slaw only via RSS or email

1. Comment Watch:

In the last week there were 33 comments. You might be particularly interested in these:

David Collier-Brown on Hacking Into Bank Accounts – What Is the Bank’s Responsibility?
Omar Ha-Redeye pointing to a recent case relevant to his post The Perils of Social Media – Should You Quit the Internet?
and a small flurry of responses to the post Do You Still Fax?

You can subscribe to the comments on Slaw either as a separate matter (RSS, email) or as part of a subscription combining posts and comments (RSS, email).

2. SlawTips

This week's tips on SlawTips are:

Tuesday: Technology: An Easy Way to Access Multiple Printer Format Settings
Wednesday: Research: Keep Your Skills Sharp
Thursday: Practice: How Do You Set Your Goals?

You can get to SlawTips at either tips.slaw.ca or slawtips.ca and you can subscribe by RSS or email.

3. Maritime Law Book Selected Summaries

This week's Maritime Law Book case summaries are in precis on Slaw and full at cases.slaw.ca.

R. v. Ruffolo (R.A.) 2011 BCCA 359
R. v. Degiorgio (T.) 2011 ONCA 527
Irving (J.D.) Ltd. v. Siemens Canada Ltd. et al. 2011 FC 791
Holowa Estate, Re 2011 ABQB 23
F.R. et al. v. D.T. et al. 2011 SKQB 261
R. v. Agengo (D.) 2011 ABQB 430

Thus far, eighty summaries in total are available on cases.slaw.ca. You can subscribe to SlawTips via RSS or email.

Hacking Into Bank Accounts – What Is the Bank's Responsibility?

John Gregory — Tue, 06 Sep 2011 16:35:31 +0000

A U.S. court has decided that a bank whose client lost money because someone hacked into its account and transferred funds out of it, was not liable to the client because the bank had used ‘commercially reasonable’ security. The case is described on the Goodwin Proctor website. The lengthy decision of the Judge Magistrate in Patco Construction v People’s Bank, later upheld, is available online. .

Is this the right standard of care for negligence? Does it matter that the bank is regulated strictly under the Bank Act? Does it matter that the U.S. bank could rely on Article 4A of the Uniform Commercial Code (on electronic funds transfers), which has no equivalent in Canada?

‘Commercially reasonable’ security clearly does not mean unbreakable security. How else should one draw the line to set a fair allocation of risk between bank and client?

This Week's Slaw Tips

Simon Fodden — Thu, 01 Sep 2011 18:24:42 +0000

Slaw news — for those who read Slaw only via RSS or email.

On Slaw you'll find a brief excerpt of this week's SlawTips posts. The links in the following will take you to the full versions, along with 100 more tips. Advice you can use — short and to the point — every Tuesday, Wednesday & Thursday.

Tuesday: Technology: Privacy Commissioner Launches Handbook to Help Lawyers Apply Privacy Law to Their Practices
Wednesday: Research: Understand the Acronym
Thursday: Practice: A Moment of Time…

You can get to SlawTips at either tips.slaw.ca or slawtips.ca and you can subscribe by RSS or email.

Maritime Law Book Summaries Posted

Simon Fodden — Wed, 31 Aug 2011 15:54:13 +0000

Slaw news — for those who read Slaw only via RSS or email.

On the website now:

This week's Maritime Law Book case summaries are up, precis on Slaw and full at cases.slaw.ca.

York Estate v. York et al. 2011 BCCA 316 Robinson Estate, Re 2011 ONCA 493 McNamee v. McNamee 2011 ONCA 533 Mathusz v. Carew 2011 NLTD(F) 28 R. v. Jones (D.C.) 2011 NSPC 47

Thus far, seventy-five summaries in total are available on cases.slaw.ca. … [more]

This Week's SlawTips

Administrator — Thu, 25 Aug 2011 18:57:19 +0000

Slaw news — for those who read Slaw only via RSS or email.

Tuesday: Technology: Turn Luddites Into Gurus With Lynda.com Wednesday: Research: Make Your Own Office Consolidation Thursday: Practice: Keep Turnover Low

You can subscribe to SlawTips by RSS or email. … [more]

Maritime Law Book Summaries Posted

Administrator — Wed, 24 Aug 2011 11:00:33 +0000

Slaw news — for those who read Slaw only via RSS or email.

On the website now:

This week's Maritime Law Book case summaries are up, precis on Slaw and full at cases.slaw.ca.

Tucows.Com Co. v. Lojas Renner S.A. 2011 ONCA 548 Martinez-Caro v. Canada (Minister of Citizenship and Immigration) 2011 FC 640 Martin v. Interbooks Ltd. et al. SKQB 251 Charter Building Co. v. 1540957 Ontario Inc. et al. 2011 ONCA 487

Thus far, seventy summaries in total are available on cases.slaw.ca. … [more]

John Papadopoulos Joins Slaw

Administrator — Wed, 13 Jul 2011 01:30:27 +0000

We're pleased indeed to tell you that John Papadopoulos has joined Slaw as a regular contributor. As many of you will know, John is Chief Law Librarian of the Bora Laskin Law Library at the University of Toronto Faculty of Law. A law graduate, he teaches legal research methods at both the Faculty of Law and the Faculty of Information at U of T. He is a co-author of The Practical Guide to Canadian Legal Research 3rd ed (Carswell, 2010). Prior to joining the University of Toronto John worked at a number of Toronto law firms as a reference librarian. … [more]

Slaw Turns Six

Simon Fodden — Fri, 08 Jul 2011 11:00:14 +0000

Slaw began on July 8, 2005. In the ensuing six years we've written a lot: more than 7300 posts, which, if you assume 500 words per post, yields 3,650,000 words. Add to that the more than 10,000 comments you've given us, and the Slaw community has produced the equivalent of something like 66 novels.

The posts and columns have been written by nearly 200 people over the years: lawyers, librarians, judges, consultants, scholars, and politicians. And they've been read by thousands of you: we now average just under 50,000 unique visitors each month who pay us 130,000 visits a month, viewing 500,000 pages with 4,000,000 "hits" a month.

And all of this is possible because of the voluntary effort of our regular bloggers and columnists. I'm routinely floored by how much energy and caring has been directed our way — and just as regularly warmed and made glad by the strength of the community that's grown up at Slaw. It's a privilege indeed to work with and for you all.

Please continue to support Slaw in the way you have ever since that summer day in 2005. Let us know what you'd like to see over the next six years and we'll do our best to provide. Because, when all is said and done, it's a pleasure — in fact, most of the time it's fun.

Spread the word.

Authentication of Electronic Records – Some Recent Developments

John Gregory — Wed, 22 Jun 2011 11:00:00 +0000

Canadian and American courts (and others) have been making pronouncements about the reliability of electronic documents for various purposes, not all of them equally persuasive, and the Canadian ones more sceptical than the American courts — perhaps only because of the facts before them.

Comments welcome on any of these cases: were they rightly decided? Do they suggest gaps in legislation?

1. In Waterloo (City) v. Townsend (Ontario Small Claims Court April 26/11), the Deputy Judge, J.Sebastian Winny (i.e. practitioner acting as judge), refused an application to serve documents on a defendant by email. Here is the relevant extract from the reasons:

From a reliability standpoint, email is in an entirely different and inferior category [to regular mail]. Many people have multiple email addresses, which may or may not be checked with any particular regularity, and may be checked only when the individual accesses a specific electronic device. Many people read only email from recognized senders. Most computers have virus and spam protection which may be triggered by attachments or by the mere fact that the sender’s address is not recognized. Incoming emails may be diverted to a junk email folder which may never be read simply by virtue of the volume of junk. Email accounts may be deleted from time to time, or even automatically deleted by reason of inactivity, without notice to potential senders of emails. I could go on.

As for attachments, again these are in a different and inferior category compared to paper documents. Attachments may or may not open, and may or may not open in the same format as was transmitted by the sender or in a legible or intelligible format. These are matters of software and device compatibility.

The affidavit evidence in this case, as in similar motions I have seen, is silent on these issues. That means that on a mechanical level, there is no evidence that if the order requested were granted, the defendant would be able or likely to receive, open and read the emailed document. The moving plaintiff effectively asks the court for leave to press send and hope for the best.

Whether I approach the analysis with or without reference to my own knowledge of email apart from the evidence, the result is the same.

[case noted in the IT.Can newsletter for May 5, 2011 at page 3 and in Laws of .com May 2011]

2. Similarly, the BC Court of Appeal declined to admit email evidence of negotiations between an insurance company and the insured about the time limit of coverage under an employer’s policy. In McGarry v. Co-operators Life Insurance Co., 2011 BCCA 214 (CanLII), the Court held that there was no evidence on the authenticity of the emails tendered, since there was no statutory support in BC for rules of authentication, unlike the case in other provinces,

There is no evidence in the record which is capable of establishing the authenticity of the emails as that issue was not addressed at the summary trial. Therefore, the issue cannot be resolved on appellate review and the admissibility of the email from BBD to Mr. Hewitt (exhibit C) and the email exchange discussing the COLA provision amendment (exhibit G) cannot be determined. (para.77)

The language of the court is a bit odd on the need for authentication. Here is the preceding paragraph:

Authenticity is a concern addressed by the statutes of other provinces when dealing with electronic records and while there is no statutory requirement in this province to consider authenticity, it is a legitimate concern that should be addressed in determining whether an electronic document is sufficiently reliable to be admitted under s. 42.

I would have thought it was very basic evidence law that any document needs to be screened for authentication and hearsay, as well as satisfying the best evidence rule. The Uniform Electronic Evidence Act says how to apply the ‘best evidence’ rule (which normally requires an original document, or a good explanation for the absence of the original) to electronic documents. The Court was right that BC has not adopted it, as have many other jurisdictions. The Court was wrong in saying that the Canada Evidence Act does not touch the subject, though. Section 31.1 of the CEA is almost the same as the Manitoba statute quoted by the Court.

In any event the Court was correct in finding that foundation evidence for authenticity was needed, though if the evidence is not in dispute, then very little evidence is actually needed for the purpose — only evidence on which a trier of fact can find that the document is what it purports to be. Oral evidence under oath by the sender of the email that the printouts submitted as evidence are printouts of emails that were sent to the insurer, or received from the insurer, would be sufficient, unless challenged. Fortunately the case did not turn on the emails one way or the other.

[case also noted in the IT.Can bulletin of May 5/11 at page 1]

3. A Massachusetts court faced a challenge to the authenticity, or at least authorship, of emails in a prosecution for keeping a bawdy house. In Commonwealth v. Purdy, 2011 WL 1421367 (Mass.; Apr. 15, 2011). The defendant admitted that the emails came from his computer but said that someone else might have sent them. The court said this about emails:

While emails and other forms of electronic communication present their own opportunities for false claims of authorship, the basic principles of authentication are the same. Evidence that the defendant's name is written as the author of an email or that the electronic communication originates from an email or a social networking website such as Facebook or MySpace that bears the defendant's name is not sufficient alone to authenticate the electronic communication as having been authored or sent by the defendant. There must be some "confirming circumstances" sufficient for a reasonable jury to find by a preponderance of the evidence that the defendant authored the emails.

The court found that there was enough other evidence in this case for the question to go to the jury. (Emphasis added. Is this the law in Canada?)

[case noted by Venkat in Eric Goldman’s blog on May 21, 2011. h/t Barry Sookman]

4. An Arkansas court had to deal with the basics lately: may electronic communications satisfy a statutory writing requirement? In Barwick v. Government Employee Insurance Co., Inc., 2011 Ark. 128 (March 31, 2011), the court properly held that the state’s version of the Uniform Electronic Transactions Act disposed of the question in the affirmative. The court’s inquiry was probably made easier by the fact that the person who had completed an application for insurance online tried to say that her waiver of extra liability coverage was invalid because not ‘in writing’, while trying to affirm the insurance coverage itself. Not a sympathetic party, in other words. The court did not have to get to the estoppel argument because the ‘not in writing’ argument failed so completely.

[case discussed by John Ottoviani in Eric Goldman’s blog on May 26, 2011. h/t Barry Sookman]

5. Speaking of authenticating social media, and in the light of the current controversy about identifying participants in the Vancouver riots after the Stanley Cup final last week by that means, a Swiss court recently convicted someone of 'insult' through her posts on Facebook. The person had an account in her own name and admitted the posting (for which she apologized, with no effect on her criminal liability.) Others who had been more effusive against the ‘victim’ (who had complained about the noise of parties in which the insulters had participated) had used false identities or had put ‘emoticons’ (the write-up does not say which ones) after their threats and had not been charged. The authorities had not gone to the social media companies to try to find out the identities of the posters who did not self-identify. Apparently calling someone an idiot (or the popular Swiss German equivalent) on Facebook is a crime in Switzerland. (It’s such a polite country.)

[case discussed by the firm Wengner Plattner on the International Law Office IT newsletter on June 21, 2011.

Is the legal world unfolding as it should, to the extent that these cases are evidence?

Is an Auto-Pen Signature a Signature at Law?

John Gregory — Mon, 20 Jun 2011 16:12:11 +0000

A group of US politicians are concerned that the President has not properly signed a law, a step described in the US Constitution, if his signature is applied to the relevant piece of paper by an auto-pen — whether or not the President authorized the application of the pen (being out of the country when the bill came up for signature, and things being rather urgent.)

Do you think this is right? I think it’s ludicrous, myself. My signature can be made by anyone I authorize to make it — or by a machine. Signatures made for me by other people or by machines may present problems of proof but not problems of *being* my signature or of the document being signed *by* me. A signature is just evidence of a link between a person (or some kind of legal entity) and a document. The purpose of the link or its legal effect cannot be determined by the form of the signature, whether handwritten, mechanical, or electronic, but only by the content and context of the signed document, or extrinsic evidence.

I suspect that some of the not-so-learned members of Congress have been in office long enough to have received their pay by mechanically signed cheques (no doubt spelled checks) and they just cashed them, rather than insisting that they be hand-signed.

Perhaps it is just possible that this expression of concern was motivated less by constitutionally founded doubt than by a desire to embarrass the President. That does not change the legal merits of the argument.

The President's action was founded on a legal opinion done under President G.W. Bush in 2005, which in turn goes back to legal opinions from the early 19th century and case law back to Coke.

Would it be any different if the President had signed with the ‘long pen’, which transmits his actual hand motion of signing to a stylus marking a piece of paper at a distance?

[hat tip: Wise Law Blog]

Selected MLB Case Summaries Now on Slaw

Administrator — Wed, 25 May 2011 17:25:50 +0000

We're proud to announce that as of today Slaw will post each week up to ten summaries of recent interesting cases.

The summaries are provided by Maritime Law Book. As you may know, MLB's National Reporter System publishes 14 reporters covering federal decisions and those of every province except Quebec. MLB editors index, classify, and prepare headnotes for all decisions.

Cases are selected for us by MLB editors using the following criteria:

Cases involving modern technology
Cases that extend or restrict the common law
Cases that interpret new or existing statutes
Cases that extend or restrict the existing interpretation of statutes
Cases with facts that result from the complexity of modern society
Cases with novel facts
Most Supreme Court of Canada cases.

Slaw will offer these summaries to you in a number of ways.

First of all, very brief excerpts appear in the right sidebar of this site, with keywords that will give you a clue about content. These are linked to a fuller version on our new sister site, MLB-Slaw Selected Case Summaries (easy to find at cases.slaw.ca). But even here we've done a fair bit of editing down, because MLB summaries are quite complex. So at the end of each summary you'll find a link to a PDF file containing the full MLB summary and classification of the case in question. As well, you'll find a link to the full judgment on the Maritime Law Book site.

Of course, you can subscribe to our selected case summaries by RSS or by email. Links to both these subscription options appear in the sidebar here and on the MLB-Slaw Selected Case Summaries website.

We hope you find this new service useful and look forward to hearing from you about your experiences with it.

10,000 Comments on Slaw

Administrator — Tue, 10 May 2011 22:53:18 +0000

We've reached a new milestone here on Slaw: comment number ten thousand. The lucky commenter turns out to be a good friend of Slaw, Peg Duncan, as you'll see in the image below:

Congratulations, Peg.

And heartfelt thanks to all of the thousands who have given us the benefit of their thoughts in the past (nearly six) years.… [more]

Wireless Security and Crime Prevention

John Gregory — Tue, 03 May 2011 14:26:14 +0000

One of the interesting elements of Google’s StreetView program was that its camera crews picked up and recorded the location of wireless hotspots that were not secured. This information was not, so far as I recall, published by Google, but its collection made some news. It seems to me, however, that one hears less often about ‘war-driving’ and other forms of cruising about looking for unsecured wireless signals in order to piggyback onto the Internet with them. Is that because there are so many public wireless access spots available nowadays, or because broadband access has become so cheap that one doesn’t have to go to the trouble of looking for someone else’s hotspot, or because more people are securing their home signals?

One also hears of these borrowed signals being used for illicit purposes: online gambling, spamming, downloading copyrighted materials, accessing child pornography, etc. (I don’t say ‘stolen’ signals because it’s not clear that there is any theft involved. Consider the issue of exclusory vs non-exclusory taking of an intangible. If I use your broadband signal, I probably don’t deprive you of anything – though if I take so much that you run into your billing cap, the analysis might change. On the other hand maybe the activity is contrary to the Criminal Code’s prohibition on unauthorized access to a computer system, even if the unauthorized user does not look at the contents of the router owner’s computer.)

Would it be a step in the right direction if broadband routers were required to be sold with security enabled, rather than counting on their purchasers to take the time and trouble to set up a secured signal? Would that help prevent illicit use of the signals – and I don’t mean just the use without permission, but the use in actual unlawful communications activity such as mentioned above? Or would that be too much of a technical burden on unsophisticated buyers who would not know how to make their computers talk to their new router or vice versa?

Would that make sense as a free-standing harm-prevention measure or would it be better in a package of Internet security provisions that could require, for example, default security settings on browsers or on hardware as well? Is there other IT security that should be a matter of legal obligation?

I know that privacy law requires personal information to be kept secure, whether or not it’s in electronic form, and as a practical consequence of this duty, privacy commissioners want personal information on mobile devices to be encrypted. Is there something else?

And there’s the usual Canadian question: would such a measure or set of measures be a matter for federal or provincial jurisdiction?

In short: are unsecured wireless routers a problem, and would a ‘sell routers with security turned on’ law help resolve it?

Gabriel Granatstein

Administrator — Mon, 02 May 2011 17:38:07 +0000

We're pleased to announce that Gabriel Granatstein will be joining Slaw.

Gabriel is a lawyer in the Montreal office of Ogilvy Renault, where he practices employment and labour law. He also writes for his blog, Quebec Labour Law.

Prior to joining Ogilvy Renault, he served as an officer in the Canadian Forces, where his duties included assisting in grievance processing, conducting administrative and disciplinary investigations and a period of deployment as a peacekeeper in Bosnia. He continues to serve as a reservist.… [more]

Domain Names – How to Get Them Back

John Gregory — Thu, 28 Apr 2011 16:45:52 +0000

The Ontario Superior Court recently released a judgment about recovering domain names, South Simcoe Railway Heritage Corporation v. Wakeford 2011 ONSC 1234, in this case a .com name rather than .ca domain name.

Someone who had been active in a voluntary organization registered a domain name for the organization and later transferred it into his own name. He also changed all the registration information settings to private so no one, including the organization, could track who was responsible for the site.

The plaintiff organization brought actions in ‘detinue sur trover’ (a new cause of action for me after all these years, though I had heard of each of the components), wrongful conversion, misappropriation of intellectual property rights, and breach of trust. The first three failed because they were out of time. The Court went through what the plaintiff knew when, and thus when it had knowledge of a complete cause of action that started time running.

However, the limitation period applicable to breach of trust was less clear and needed a trial of issues of mixed fact and law.

What other legal means do you use to get back a domain name (recognizing that you would not miss a limitation period…)?

The court finished on a note that is mysterious to me. It refers to the ICANN Uniform Domain-Name Dispute-Resolution Policy that applies to .com names. Apparently the defendant argued that the existence of the UDRP ousted the jurisdiction of the Superior Court. My understanding of the UDRP is that it does not do so. However, the court refers to a statute – maybe the judge thought that the URDP had statutory backing. If this text makes sense to you, perhaps you can explain it [at para. 24]:

Although this was not part of the moving party’s motion, the final point argued by the parties was whether this court has jurisdiction to grant the declaration sought in the claim with respect to ownership of the domain name and the intellectual property rights, as well as a mandatory order directing the defendants to convey the domain name to the plaintiffs. While the plaintiff may be correct that this claim is not within the jurisdiction of the Uniform Domain Name Dispute Resolution Policy prescribed by the Internet Corporation for Assigned Names and Numbers, this court is not convinced that this aspect of the claim should be dismissed for want of jurisdiction pursuant to rule 21.01(3)(a). The actions of the defendants may have to be measured in relation to that statute, to which this court was not referred, that governs the ownership of domain names if such legislation exists. It may be that proprietary rights in a domain name, like copyright and trademark, is a creature of statute as opposed to tort and property law, but the appropriate material was not placed before this court to make a determination of the question at issue.

In particular, it is not true to say, is it, that "proprietary rights in a domain name, like copyright and trademark, is [sic] a creature of statute as opposed to tort and property law"?

[hat tip: Tim Rattenbury]

United Nations Commission on International Trade Law Draft Procedural Rules for Online Dispute Resolution

John Gregory — Thu, 14 Apr 2011 17:15:56 +0000

As mentioned earlier this month on Slaw, the UNCITRAL Secretariat has published WP.107 for its meeting next month, setting out the first draft of a set of rules for procedure in online dispute resolution (ODR). That document is available online. With the same link you will find the report of the first meeting of the Working Group on ODR, from December 2010, to see how the group got to where it is now.

The principle of the draft rules is that they should apply readily to low-cost, high-volume disputes, so they should be simple and accessible and allow for cheap fast resolutions. For this purpose the commentary asks if their application should be limited to certain kinds of dispute (“simple fact-based disputes and basic remedies”), or should have certain kinds of dispute excluded from their scope (e.g. personal injury, intellectual property, taxation, privacy).

While the rules would apply to online transactions, would it be necessary to restrict the dispute resolution processes to those conducted online too? Some basic rules about sending and receiving e-messages may be included in the rules, or those considerations could be left for other law (like UNCITRAL’s Electronic Communications Convention) or left to ODR providers to prescribe for proceedings that they facilitate.

Essentially the rules provide for a negotiation or consultation stage, a mediation stage and a decision-making stage. It is hoped that most disputes would be resolved early. They set out what the notice of dispute is to include, including of course the grounds for the dispute and any suggested resolution, and what the response should have, including any other solutions.

After a time (should there be a time limit?), a neutral facilitator is appointed under the rules. That person represents in accepting appointment that he or she has enough time available to do a good job. The need for speed might have this person serve as arbitrator as well, if the facilitation/mediation did not succeed. Details of procedure, evidence and production of the award are left to the parties or the neutral, though a tight time limit would likely be imposed on the award itself.

The paper raises the possibility of consolidating like claims. That could make for an equivalent to a mediated class action. Is that an attractive prospect?

What do you think? Is this going in a useful direction? Do you have answers to any of the questions here, most of which are from the Secretariat, or to any of the other questions raised in the text of WP.107? It would be helpful to more than one delegation to the Working Group to have your views.

The report notes that the procedural rules will probably not be the only product of the Working Group. A set of “guidelines for ODR providers” will deal in more detail with setting up an ODR platform and making it work. The WG will discuss these guidelines at future meetings, as nothing has yet been drafted.

Note as well that the Secretariat has assembled a number of online (and other) resources about ODR, including existing systems’ rules and principles, and proposals for new systems.

Class Action Against Facebook Dismissed in Quebec

John Gregory — Sat, 09 Apr 2011 00:08:05 +0000

A number of Facebook users in Quebec tried to begin a class action against FB for alleged infringements on their privacy. A Quebec court has now refused certification as a class action and dismissed the case: St Arnaud c. Facebook Inc. 2011 QCCS 1506.

One ground for dismissal was that FB users sign an agreement that all disputes must be adjudicated in Santa Clara County, California.

A more interesting element of the decision was that the 'contract' with FB was not a consumer contract within the meaning of Quebec law, since there was no payment and no obligation on the users, who could quit at any time without financial consequence.

A brief writeup of the case (en français) is here.

Would a court in common-law Canada have any difficulty arriving at the same result? Quebec’s consumer protection laws, and laws protecting the jurisdiction of Quebec courts to hear cases involving local consumers, are as strong as or stronger than any others in the country. If it won’t fly in Quebec, it seems not likely to have wings elsewhere in the country. Do you agree?

Complaints to privacy commissioners have made more mileage, but they don’t allow the complainants to dip their buckets into FB’s deep and wide revenue stream the way a successful class action might …

United Nations Commission on International Trade Law Work on E-Com and Online Dispute Resolution

John Gregory — Fri, 01 Apr 2011 17:18:09 +0000

We have mentioned before the recent work of the United Nations Commission on International Trade Law on online dispute resolution (ODR) and a colloquium held to review the potential future work of UNCITRAL on e-commerce issues.

ODR

The UNCITRAL Secretariat has produced a working paper for the meeting next month of the ODR Working Group. Working Paper 107 is a draft set of procedural rules that might apply to ODR processes. Along with it, you'll find WP.106, the provisional agenda for that meeting.

Will this work? Is it likely to be useful? Or is it too high-level to provide real instruction for businesses or consumers looking to resolve their disputes online across national borders? Is there anything in the draft that would be particularly helpful or harmful to Canadians who want to engage in ODR?

Future work in e-commerce

The colloquium held in New York in February of this year looked at several topics that be dealt with productively at the international level: identity management, mobile e-commerce, transferable electronic records and ‘single window’ systems for border crossing or shipping documents. The Secretariat has now produced a report of the discussions at the colloquium, in two parts: Documents A/CN.9/716 and A/CN.9/716 Add. 1. They are available as documents in preparation for the 2011 annual meeting of the Commission.

Does this report cover the main issues relating to these topics? Does it suggest that one or more of the topics are more ripe for international guidance or lawmaking than the others? What should UNCITRAL’s priority be?

(The documents and slide presentations for the colloquium itself are collected here: http://www.uncitral.org/uncitral/en/commission/colloquia/electronic-commerce-2010.html.)

A Small Encomium to Technology

Simon Fodden — Mon, 14 Mar 2011 17:12:35 +0000

One of the ways that we at Slaw stay in touch with our readers is through search engines' reports on websites that refer to us. The fact that the internet has shrunk the world — or expanded my small part of it, which is the other way to look at it — continues to amaze me, as it did once again when I came across a reference to Slaw in a Bulgarian blog on media law, [Медийно право] [Нели Огнянова]. What caught their attention, I should mention, was the recent post by Dan Pinnington, The 2/3 Rule Will Make You a Happy and Successful Lawyer, or, in other words, Ключът към успешната и удовлетворяваща кариера на юриста се свързва с просто. It's exciting enough to write knowing that strangers will read you, but it gives me a particular frisson to realize that some of those strangers will be in a culture sufficiently different that the effect of your words is really unpredictable.

How do I know the details of what I've just told you? After all, my Bulgarian is utterly absent. Again, technology is the answer: Google Translate, which provides an optional translation bar in the Chrome browser, helpfully informed me that the site I was viewing was written in Bulgarian — and did I want it translated into English? Just think about that. What would only a very few years ago have been an impenetrable barrier to our communication is now lowered, and in some cases swept away, by a freely available technology — and in this case for a language with only about 12 million speakers.

So I salute all helpful technology, our Bulgarian readers — Поздрави от Канада –, and as well our readers in the 177 other countries where, technology informs us, Slaw was visited last month.

EU Launches Public Consulltation on E-Signatures

John Gregory — Fri, 25 Feb 2011 18:51:04 +0000

The European Union has begun a public consultation on online authentication in the context of its review of its Electronic Signature Directive of 1999.

An early assertion in the press release is this: “difficulties in verifying people's identities and signatures are a significant factor holding back the development of the EU's online economy.”

Is this true, in your view or in your experience? How often is identification of the other party to a transaction, or authentication of an identity one already knows, a concern, compared to, for example, the solvency of the party, the quality of the goods offered, the reliability of the services offered, or the availability of a remedy if something goes wrong?

For B2C e-commerce, most of the useful authentication is done through credit cards. The issuers of the cards provide all the authentication needed. In North America, the ability to charge back to the merchant the amounts paid on a failed transaction is a useful consumer remedy. That practice is not widely available elsewhere in the world.

I suspect, but would welcome knowledgeable input, that B2B transactions have means of authenticating that work in practice, but have the issues mentioned above without the credit card remedy.

I had thought that the review of the E-Signature Directive was prompted by a widespread failure to follow it, in that its ‘advanced electronic signature’ was not being much used, because it’s too complicated. It is easier in practice and for legal purposes to prove who one is dealing with (i.e. to authenticate) than it is to prove that one has complied with the technological standards required to qualify as an advanced electronic signature.

An additional problem is that qualifying as an AES only gets you to being the equivalent of a handwritten signature, i.e. there is no presumption of identification or of consent of the party that has created the AES. (By contrast the statute and regulations about Canada’s secure electronic signatures give a presumption of attribution and of admissibility as evidence to the signed document.)

How important is this consultation? Is it more important to make the AES rule more flexible than to worry about large scale authentication?

I can see an argument that communications with the public sector – in either direction – may have more demanding authentication rules. Would you agree with that?