01:03:38 – Jack, what did he say?
01:03:42 – What's the matter?
01:03:49 – There's a gap in the freeway. – What?
01:03:53 – What do you mean? – How big is a gap?
01:03:56 – 50 feet. A couple of miles ahead.

I remember when looking for legislation at my desk was rarely a reasonable option. Today, if I can't browse my way to what I am looking for I feel (quite unreasonably) annoyed.

I should be feeling very lucky. In Alberta, we have the Alberta Law collection at Our Future Our Past: a searchable repository of bills, statutes, pre-Alberta ordinances, the Alberta Hansard and Alberta journals and the Alberta gazette. This collection is part of the Alberta Heritage Digitization Project, a non-profit endeavour that ran from 1999 to 2010. The site covers the early stuff really, really well.

I am also lucky that the Alberta Queen's Printer offers plenty of great material, including the Alberta Gazette from 1995 onward. The QP also has a very reasonably priced subscription site QP Source Professional with annual statute volumes from 1996 on, Orders in Council back to 1967, though many years are a list only and do not include the appendices where regulations are found.

In Alberta, our gap is 1991 to 1995 for annual statute volumes and 1991-1994 for regulations. No quite 50 feet of road, but unlike Sandra Bullock, I don't have access to a gas pedal to clear the gap.

Do you know where your gap is for electronic legislation in your jurisdiction?

The web is littered with movie quotes. This one came from Subzin.

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

Technology

Use Google Docs to Alter PDF Documents
Dan Pinnington

PDF documents are great when you want to make it easy for anyone to view or print a document. But what happens when you need to alter a PDF? You can, of course, do it with Adobe Acrobat or other expensive PDF Editors, but you can also do it for free with Google Docs! It’s easy. First, take the PDF you want to alter and upload it to Google Docs. . . .

Research

Check Out AccessCLE
Shaunna Mireau

Welcome news from David Whelan of the Great Library – Law Society of Upper Canada: "You can now print and download articles older than 18 months free of charge from the Law Society’s CLE collection, powered by the Great Library. The service – AccessCLE – has been 100% pay-per-view since its inception in 2007 and contains over 6,000 PDF articles going back to 2004. . . ."

Practice

Articling Tips for Students-at-Law
David Bilinsky & Garry Wise

As summer arrives, so does a new articling season throughout the nation. The future of articling has been subject of much debate over the last year. With the dust now settled on those deliberations, Canada`s law offices will, over the next few months, begin to welcome their new crops of eager and talented students-at-law. For many students, it will be the best of worlds and the worst of worlds. And since articling rarely comes with a user manual, here are a few SlawTips for Students-at-Law on succeeding and navigating through the many challenges ahead in your new articling gigs: . . .

The Supreme Court of Canada will announce Thursday at 9:45 am whether or not it will hear Magder's appeal in the ongoing Rob Ford case.

In case you have been living under a rock (or outside of Toronto at least), Justice Hackland ordered the Mayor of Toronto out of office last September. The Mayor won his appeal before the Divisional Court in January, and was permitted to remain in office.

With an election scheduled for 2014, the Supreme Court ruling, should the Supreme Court elect to hear the appeal, will likely be largely academic.

Nevertheless, many will be watching intently (myself included) to see if the Supreme Court elects to take the case.

A driving force for the development of the internet was to provide certainty for internet service organizations on the liability exposure they may have for acts of third parties on their internet sites.

Given that many Canadian internet web sites do receive U.S. visitors and many also utilize a DMCA safe harbor provision, understanding the scope of protection that the safe harbor provides can be important to Canadians. The ongoing legal saga in Viacom International Inc., et al. v. YouTube, Inc., YouTube, LLC, and Google, Inc., 07 Civ. 2103 illuminates the scope of the DMCA safe harbor.

The DMCA provides “safe harbor” protection against certain copyright infringement claims in respect of 3^rd party copyright infringing content posted on the internet service organization's web site. The scope and extent of the safe harbour protection was tested in, Viacom International Inc., et al. v. YouTube, Inc., YouTube, LLC, and Google, Inc.,07 Civ. 2103 and 3582, decided June 23, 2010 (D.C. S.D. N.Y.), a case in which the plaintiffs alleged direct and secondary infringement claims, including claims for “inducement” contributory liability. The defendants moved for summary judgment that they are entitled to the protection of the "safe harbor", because they had insufficient notice, under the DMCA, of the particular infringements in suit.

The Court examined the DMCA's "safe harbor" provisions, 17 U.S.C. § 512(c), (m) and (n). The Court found that defendant YouTube operates a website onto which users may upload video files free of charge. Uploaded files are copied and formatted by YouTube’s computer systems, and then made available for viewing on YouTube.

The plaintiffs alleged that the defendants were not only aware of but also welcomed copyright infringing content being posted to their web site and the defendants profited from such activities. The plaintiffs argued that defendants are liable vicarious infringement of their works, and for the direct infringement of those works alleging that the defendants had ‘actual knowledge’ and were ‘aware of facts and circumstances from which infringing activity was apparent,’ but failed to ‘act expeditiously’ to stop it; and that the defendants ‘received a financial benefit directly attributable to the infringing activity’ and ‘had the right and ability to control such activity’.

The Court found that when YouTube's designated agent received a DMCA notice that a specific item infringed a copyright then they swiftly removed it. The key issue for the court was to assess the statutory language in respect of the degree of knowledge YouTube may have had of the specific infringements.

The Court focused on the critical question whether the statutory phrases “actual knowledge that the material or an activity using the material on the system or network is infringing,” and “facts or circumstances from which infringing activity is apparent” in § 512(c)(1)(A)(i) and (ii) mean a general awareness that there are infringements or rather mean actual or constructive knowledge of specific and identifiable infringements of individual items.

The Court conducted a lengthy review of the legislative history behind the DMCA and noted that the phrases “actual knowledge that the material or an activity” is infringing, and “facts or circumstances” indicating infringing activity, describe knowledge of specific and identifiable infringements of particular individual items. The Court noted that mere knowledge of prevalence of such activity in general is not enough. The Court noted that to require an internet service organization discover which of their users’ postings infringe a copyright would contravene the structure and operation of the DMCA.

On appeal, Docket No. 10-3270-cv 2nd Cir. (April 5, 2012), the 2^nd Circuit confirmed that the § 512(c) safe harbour requires knowledge or awareness of specific infringing activity but vacated the order granting summary judgment because they were of the view that a reasonable jury could find that YouTube had actual knowledge or awareness of specific infringing activity on its website. The appeal court further held that the District Court erred by interpreting the “right and ability to control” infringing activity to require “item-specific” knowledge. The 2^nd Circuit sent that case back to the District Court to determine whether, on the current record, YouTube had knowledge or awareness of any specific infringements or willfully blinded itself to specific infringements or had the right and ability to control infringing activity within the meaning of § 512(c)(1)(B).

The US District Court addressed the issues posited by the 2^nd Circuit in 07-cv-02103 (D.C. S.D. N.Y. April 18, 2013). When pressed on the question of demonstrating actual knowledge Viacom admitted that there was no evidence to allow a clip by clip assessment of actual knowledge of YouTube but asserted that it was not Viacom's burden to provide notice. Rather Viacom asserted that YouTube had the burden to show it did not have notice of the infringements.

The District Court reviewed the legislative history of the safe harbor under the DMCA and noted that the legislative requirement is that the owner of the copyright of his agent is required to identify the infringements by giving notice to the service provider. The Court noted that the system was workable and used the example, in 2007, when Viacom gave notice to YouTube of over 100,000 infringements which were taken down by YouTube the next business day.

In the absence of evidence to permit a clip by clip assessment of actual knowledge the Court examined substitute equivalents to actual knowledge such as willful blindness or the right and ability to control infringing activity within the meaning of § 512(c)(1)(B).

In this case the Court found no willful blindness in this case. The Court noted that the DMCA does not require YouTube to search for infringements.

The Court noted that the right and ability to control infringing activity within the meaning of § 512(c)(1)(B) requires something more than merely the ability to remove or block material posted on its website. The Court noted that where a service provider so influences or participates in infringing activity, while gaining a financial benefit from it, may lose the safe harbor. This requires a high level of control or purposeful conduct.

As a result, the Court summarized the governing principle that knowledge of the prevalence of infringing activity, and welcoming it, does not itself forfeit the safe harbor. To lose the safe harbor the service provider must influence or participate in the infringement.

The evidence showed that YouTube placed the burden on Viacom to search YouTube for infringing clips but the Court noted that that was where the burden is placed under the DMCA safe harbor.

The Court found YouTube was not required to monitor infringing clips proactively nor to permit others to have access to YouTube's proprietary search mechanisms. The Court found that YouTube's influence on its users consisted of: exercising its right not to monitor the service for infringements, enforcing basic rules regarding content (such as limits on violence, hate or sexual material), facilitating access to user stored materials regardless (and without actual or constructive knowledge) of whether it was infringing, and monitoring its site for some infringing materials and assisting some content owners in their efforts to also do so. The Court found no evidence YouTube induced its users to submit infringing videos or provided users with detailed instructions about what content to upload or edited their content or prescreen submissions for quality or steered users to infringing videos or interacted with infringing users to a point where it could be said that YouTube also participated in such user's infringing activity.

In these circumstances the Court found that YouTube did not have the right and ability to control infringing activity within the meaning of § 512(c)(1)(B).

The Court lastly considered YouTube's syndication agreements under which Apple, Sony, Panasonic, TiVo and AT&T users were able to obtain YouTube content on their mobile devices. The Court found that such content was merely making available to users user stored videos and that such arrangements were protected by the § 512(c) safe harbor.

The YouTube case provides some comfort for web site operators who operate on the notice and take down model and seek to shelter under the DMCA safe harbour. Clear messages from the Court are that the safe harbor does not require proactive investigation but also that it is critical that the web site operator properly enable the DMCA safe harbor by satisfying applicable conditions, have meaningful procedures in place to quickly and carefully operate in response to applicable infringement notices and otherwise not operate the web site solely to provide the site and facilities for copyright infringement.

It is reported that the latest decision is again to be appealed. On appeal we may see further details of the DMCA safe harbor illuminated.

In his article “The legal status of virtual goods” in the May 31 edition of the Lawyers Weekly, Jonathan Mesiano-Crookston described several examples of the creation of virtual assets – some worth millions – by online gaming participants. While most clients will not claim such exotic revenue streams, they may well accumulate points, credits, or other valuable interests and rights through online activity. Even clients who engage in no commercial activity on the internet often use social media, creating accounts, profiles, and original content. There is no question that these activities create value, even if that value cannot readily be quantified in dollar terms.

The value of online activity and content has been taken into account in corporate and commercial transactions for many years now. However, making arrangements for the management of personal online content (sometimes called the “virtual estate”) after a client’s death, via a will or otherwise, is still an emerging practice. In a matte story created by LAWPRO for distribution this spring, we’ve encouraged clients to begin thinking about their virtual estates, and to raise the issue with an estates lawyer.

If you are one of the many lawyers who has not yet had occasion to address a virtual estate in a will, we’d like to suggest that the time has come to begin considering the issue of virtual estates, and to begin speaking with clients.

In many cases, the easiest approach, for clients, is to make arrangements for the transfer of control over online accounts and property outside of the will. For example, a client may, when naming an attorney for property, give that person a list of logins and passwords for online bank accounts and points-collection programs (for example, airline “miles” programs). Spouses may also share this information with each other, to permit seamless access to property that is intended to pass to the surviving spouse.

With respect to social media accounts and other non-commercial activities, it is often useful to advise a client to provide a list of access credentials to a trusted relative or friend so that that friend can close or modify the accounts after the user’s death. There are also commercial services available for the posthumous management of online accounts; however, these generally require that the user provide confidential information to the service, which may not appeal to some.

Ultimately, the most important action to take, for now, with respect to virtual estates is to begin raising the issue with clients. Many wills clients may not have given the issue much thought, and may be grateful for the prompt to begin considering what they’d like to have happen with this aspect of their legacy.

This article is by Nora Rock, corporate writer & policy analyst at LAWPRO.

Google, where people are paid to brainstorm and pursue ideas that are often "wacky," has initiated a project to place a chain of balloons into "orbit" around the globe and to use them as a way of providing internet connectivity for people who would otherwise not be able to access the internet.

Of course, being balloons, these relay stations won't actually be in orbit. They will be in the stratosphere, however, at the 20 kilometer region, well above commercial flights and where bands of winds move in a somewhat predictable pattern. The project has begun in New Zealand and hopes to expand in other countries in the latitudes around 40-45 degrees south. This video will give you a decent overview of what's happening.

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

This week the randomly selected blogs are 1. Environmental Law and Litigation  2. SOQUIJ Blogue  3. Legal Feeds Blog  4. Legal Post  5. Thoughtful Legal Management

Environmental Law and Litigation
Oil Sands tailings pond management not meeting environmental targets
The Alberta Energy Resources Conservation Board has released its 2012 Tailings Management Assessment Report, Oil Sands Mining Industry. It concludes: "Industry performance over the 2010/2012 reporting period has not met the original expectations of Directive 074. However, the ERCB notes that all operators have committed significant resources towards managing their tailings in accordance with the objectives of Directive 074, made material progress in developing and implementing fines capture technologies as part of their tailings management plans . . .

SOQUIJ Blogue
Le syndic de l’Ordre des opticiens d’ordonnances du Québec peut porter plainte contre des optométristes
En février 2012, le Conseil de discipline de l’Ordre des optométristes du Québec, saisi de plaintes disciplinaires à l’encontre de quatre optométristes — Brisson, Coulombe, Hardy et Chassé —, a été appelé à décider si le syndic de l’Ordre des opticiens d’ordonnances du Québec, en tant que plaignant privé, avait un intérêt suffisant pour porter plainte contre des optométristes. Dans ses décisions portant sur une requête pour réouverture d’enquête, il a répondu par la négative et a rejeté les plaintes disciplinaires. . . .

Legal Feeds Blog
Appeal court upholds racial discrimination ruling against Peel law librarian
Two black lawyers and an articling student who were asked to show their IDs in a Brampton, Ont., court several years ago were discriminated against based on their race, the Ontario Court of Appeal ruled Thursday. The finding sets aside a 2011 Divisional Court’s decision to the contrary. In May 2008, Selwyn Pieters, Brian Noble, and their articling student were sitting with several other lawyers in the lawyers’ lounge in a Brampton court when a court librarian asked just the three men, two of whom wore their hair in dreadlocks, if she could see their IDs to verify they were lawyers. According to the Peel Law Association’s policy, only lawyers and law students are allowed to sit in the lawyers’ lounge. On Thursday, the appeal court said the Divisional Court erred on several grounds, including its application of “stricter test of discrimination.” . . .

Legal Post
Air Canada’s top lawyer makes the investment grade
David Shapiro, top in-house lawyer at Air Canada, last month closed a financing deal that was 17 years in the making. Air Canada raised $714.5-million through an offering of “enhanced equipment trust certificates” — a special type of debt financing vehicle that has only been made possible through an international agreement called the Cape Town Convention. There is immediate importance to the financing. It will help the airline purchase five new 777-300ER aircraft from Boeing in time for delivery between June 2013 to February 2014. But there is also a longer game at play. . . .

Thoughtful Legal Management
10 Step Process for Instituting Lasting Change
This is another great guest post from Beth Flynn of the Ohio State University Leadership Center. Today Beth is providing us with a 10 step process for instituting lasting change:

1. Build trust
2. Create a unified spearhead team
3. Establish a pressing need for the change to be implemented
4. Formulate a clear unifying vision
5. Build and implement a specific strategy . . .

_________________________

*Randomness here is created by Random.org and its list randomizing function.

More back-seat drivers for the major legal publishers.

Robert Mackay's recent post about how publishing is becoming an academic discipline highlights yet another source of analysis and commentary on the strategies being pursued with varying degrees of success by the legal publishers. To the growing list of blogs such as House of Butter and the Justitia Blawg, to name but two, has been now added the academic community.

This point was brought home to me by one of Robert's students who recently completed an MA dissertation on corporate branding in the publishing industry. Her research included a survey of present and former publishers, regarding our experience with corporate branding. I was happy to participate.

My only reservation was that a more valuable survey would be one of the members of the legal research community who have lived through a frenzy of frequently meaningless branding changes that have occurred in recent years. Nonetheless, a survey of publishers is a very good start for the first of what I expect will be many surveys of corporate branding in the publishing industry.

Survey on Corporate Branding

I have set out below the questions, my answers, and some further reflections on the answers I provided. Her questions were good questions and I have no doubt that her conclusions and the conclusions of those who will follow in her footsteps will challenge the conventional wisdom of the "professional business development strategists" who populate publishing houses today.

In my experience, corporate surveys are frequently constructed to reach a foreordained conclusion, be it the personal view of the CEO or the professional business strategist, who all too frequently has little or know knowledge of the industry in which he or she is employed. The benefit of an independent survey, by someone without a vested interest in the outcome of the study, is that it should provide a fresh perspective on the issue being studied.

My answers were based on my personal experience in the legal publishing industry. They do not reflect any particular "corporate" point of view and undoubtedly include some politically incorrect views that are not shared by many marketing professionals. So be it.

Question 1: Would you agree or disagree that strategic exploitation of brands is a method of making a product or service stand out over the competition?

Answer 1: I disagree with the proposition that strategic exploitation of corporate brands is a method of making a product or service stand out over the competition in so far as legal publishing is concerned. The major corporate brands with which I was associated are perceived as entities that exist to acquire businesses rather than act as product innovators. As well, the major legal publishers are seen by many consumers of legal information as being out of sync with their customers needs and expectations, especially regarding pricing and servicing.

As you can see, my view is that the strategic exploitation of corporate brands would not be an effective marketing tool. While the use of a corporate brand would not detract from the value of a product, I don't believe that it would make a product or service stand out from the competition. In my experience, "corporate brands" are just that – "corporate". Corporate branding exists primarily for the purpose of enhancing shareholder value in the corporation. Logos, signage, the design and placement of advertising material, are geared to the idea of creating and enhancing the image of the corporation per se and only incidentally, if at all, to encourage the sales of specific legal information products.

That was not always the case. Early in my career in legal publishing, the corporate brand was the key product differentiator for launching new products. A case in point was the publication of Carswell's topical law reports series. The series were an immediate commercial success. While meeting a real market need at the time, their speedy acceptance by the market was made possible by The Carswell Company brand name that appeared on each publication. Despite being new and different from anything else in the market at the time, it was the corporate name that gave the customer the belief that the law report series would live up to expectation. Assumptions were made about the quality of the product based on faith in the Carswell brand.

Unfortunately, most of the old brands recognized for quality by the legal research community have been discontinued – Carswell itself is one of the exceptions having survived as after several attempts to link the name to The Thomson Corporation. Today we have perhaps the best possible outcome in the name Carswell – A Thomson Reuters Company. Unlike many other acquisitions, the core brand name survived. The brand for Richard de Boo, a company that was merged with The Carswell Company Limited, did not fare as well – it was simply dropped, although its turkey feather (quill pen?) logo was retained for a few years longer, linked to the name Carswell.

There was a reason to drop many of the old brands. The legal and regulatory businesses of the major legal publishers were created by acquiring dozens of small, medium and large legal publishing companies and merging their operations. Dozens of publishing companies meant that there were dozens of established corporate brands within the same multinational company. The creation of a new global brand was a necessary step in creating a single new corporate culture from many diverse and sometimes competing businesses. At the same time, however, something important was lost – the very real link that existed between the customer and the product through the brands of the merged businesses.

As the multinationals acquired their first legal publishing companies, branding confusion was the norm. There was uncertainty as to which brands to drop and which brands to save. Decisions made in one year and were reversed the next. The classic example was the merger of Butterworths and Lexis Nexis in Canada. For almost a year, the name Butterworths was changed to Butterworths Lexis Nexis. Then it was changed to Lexis Nexis Butterworths. Was that really necessary? In year two, I could scarcely remember which came first. For that matter, neither could the customers. Fortunately it did not seem to matter all that much, apart from being made the butt of occasional jokes. Now, of course, it has become LexisNexis Canada Inc, with Lexis Nexis as a single word. In Canada, at least, the Butterworths brand was thought to be expendable.

The most recent example of the demise of an established brand is CCH. When customers purchased a CCH publication, the customers felt as if they knew and understood the content and format of the publication sight unseen. Nonetheless, a shift to a new corporate brand is now underway. See the recent announcement that CCH is changing its corporate brand name to Wolters Kluwer, a brand virtually unknown in legal publishing circles, at least in Canada if not elsewhere (see Appendix A below). This decision appears to reflect the generally held view of the market position of CCH, i.e. that it doesn't matter what Wolters Kluwer does, the market position of CCH will not improve. So why not change the brand?

The professional business strategists who make these decisions are probably right. The time may have come to drop many of the old brands. The shift to the corporate brand of the multinational may simply reflect the fact that the old corporate brands no longer matter in an era in which the legal publishers now purport to offer "solutions" instead of mere "publications" or "legal information". The corporate view is that it is the corporate brand that matters most, and this idea is reflected in the change from CCH to Wolters Kluwer. For the CCH brand, it would appear that the time has come to go big, or go home.

Question 2: In an age of seemingly infinite consumer choice, will branding play a more important or a less important role in selling content?

Answer 2: The brands with which I am familiar do stand for reliability in the minds of the Canadian consumers of legal information, but also for inflated pricing and customer alienation. Consequently, it is difficult to see how the corporate brand could be used effectively in selling new content.

Product branding as opposed to corporate branding continues to play an important role in selling content. In legal publishing, it is the norm for competing titles to be published by the same company. Examples of this include (1) Martin's Criminal Code and Tremeears Criminal Code, and (2) Chitty's Ontario Civil Practice and Watson and McGowan's Ontario Civil Procedure. These publications offer essentially the same content with relatively minor variations in style. In such cases, the purchasing decision is clearly based on other factors. In the mind of the consumer of legal information, a preference for the brand name and what it represents to the customer personally, be it Martin's, Tremeears, Chittys and Watson & McGowan, is the basis of decision making. It could be safely said that dropping the name Martin's or Tremeears and the like would be fatal to the publication.

By way of contrast with the products mentioned above, just think about the blowback that would come from any decision by a multinational legal publisher to launch a new print publication in a looseleaf format. The decision to publish Halsburys Laws of Canada in bound volumes was necessary to give the customer some assurance that they would not be updated to death with releases that would provide little or no added value to the base work.

As for a sense of how customers feel about the corporate brands of multinational legal publishers, one need only attend the annual meetings of the Canadian Association of Law Libraries to get a sense of the disconnect that exists in the market between the providers and consumers of legal information on issues relating to updating and pricing in particular. It is not a pretty picture.

Question 3:Which is the first publishing brand that comes to your mind (aside from the company at which you are currently employed or have been employed, if they publish any content)?

Answer 3: Thomson Reuters.

In answer to this question, both Thomson Reuters and LexisNexis both come instantly to mind, with CCH a distant third. Although a major player globally, Wolters Kluwer is a virtual unknown in the Canadian market for legal information. If asked in a casual conversation. I would have said Carswell and LexisNexis. I doubt that very many Canadian consumers of legal information would recognize the nameWolters Kluwer. The change is a belated and somewhat desperate attempt to copy its competitors in an attempt to enhance shareholder value in the global market. In Canada, at least, the change is not expected to have any positive effect on the business of CCH.

Question 4: Do you regard branding as a critical factor in the publishing sector, at present and in the future?

Answer 4: Respect for the corporate brand declined among consumers as the companies grew by acquiring their competitors. While the corporate brand came to mean less to consumers, the importance of the product brand – usually an author or an editor's name – grew. Halsburys and Juris Classeur are examples of product brands that have held their value in the minds of the consumers of legal information. Within recent memory I launched Canadian legal information products using these names instead of Lexis Nexis as the product brand.

Branding remains a critical factor in legal publishing, but I would suggest that the product brand matters more than the corporate brand. The big titles in legal publishing generally incorporate the name of an author or an editor in the title. The examples are almost too numerous to mention. In the United Kingdom, Halsburys is the biggest money maker for Butterworths, while in France, the name of the Juris Classeur encyclopedias became the name of the company itself.

The Halsburys Laws of Canada and Juris Classeur Quebec Encyclopedias are the two most recent large scale product launches in Canada. The brands chosen reflect a product concept rather than a corporate brand. Without the connection to the Halsburys and Juris Classeur names, it would have been impossible to generate author interest in creating these scholarly works, let alone interest by the legal researchers in buying and using the products. As for online services, consumers are more interested in the product brands included in composite digital products than they are in the brand of the multinational that produced the digital product, or the simple (minded) title given them, be they called a Source, or Essentials, or a Partner. Such attempts at branding are even less meaningful than the corporate brand.

Question 5: As published content changes format (from print to digital formats, games, apps, etc.), could publishers use or try to use strategic brand exploitation to make what they publish stand out among others (self-publications, other publishing houses)?

Answer 5: The major corporate brands have been diminished in value in the eyes of consumers but this reality seems to have escaped corporate executives who continue to tout the corporate brand at all costs. In legal publishing, the corporate brand is of limited appeal at this point in time and needs to be used with caution.

To make the point that business strategists need to proceed with caution in dealing with brand names, I have used hyperbole in answering this question. The corporate brands of legal publishers are reputable and the products of good quality, but the corporate brands by themselves do not influence decision making as they once did. The consumers of legal information are generally more information savvy than in the past and rarely if ever make decisions based on a corporate brand name.

Question 6: “Cross-media publishing: a combination of content, distribution and technology”. Would you say this title is a peek into the future or a vain hope? It has been said that the strategic exploitation of a brand could make it possible. Would you agree or disagree? How?

Answer 6: Cross media publishing defined as a combination of content distribution and technology is what the major publishers of legal information have been doing for most of the last decade. It is not a new idea, but rather an old idea that has been exhausted. The strategy has failed to deliver growth expectations. It is a peek into the recent past, and not the future. It was a vain hope.

Legal publishers have been at the cutting edge of cross media publishing. As I noted above, cross-media publishing has been the driving force behind the transformation of the legal publishing industry over the past two decades. Vision of fortunes to be made by transitioning print content to an array of digital formats, led to the consolidation of an industry that characterized by scores of smallish family owned businesses, to one dominated by three or four multinationals with high profile corporate brands. At this point, cross media publishing is the norm. It was the financial resources of the multinationals combined with a receptive market, that made it possible, not the corporate brand.

Academics may become future sources of new ideas and new thinking

Branding is the first of many issues affecting publishing where new thinking will be brought to bear on the issues of the day. The questions in this survey were provocative and a sign of things to come as more academics question the fundamentals of the publishing industry at a time of massive change. Insight into critical trends will be enhanced as the number and scope of surveys increases. This is a good thing. Publishers will have a new source of intelligence to use as they see fit.

Some suggested topics for future dissertations that I would like to see include a study of looseleaf publications – could their decline into disrepute have been avoided or delayed if the publishers had not decided to increase the number of looseleaf releases to compensate for declining subscription lists? Should the publishers have reduced their revenue expectations rather than sought to maintain them as they transitioned content from looseleaf to digital formats? Would they have larger subscription lists and more revenue today as a result of more moderate pricing decisions regarding updates in recent years.

Another intriguing question worthy of study relates to print law reports – who is it that continues to buy them and why? What is the profile of the last person expected to maintain a print subscription to a law report series, i.e the last man (or woman) standing? Consumers of legal information undoubtedly have many other topics regarding both past practices and future expectations to suggest to academics.

To some publishing executives, the future contributions of academics will be welcomed as well as a new source of ideas, and the academics themselves as a hiring pool for tomorrow's business strategists. To others, the work of academics will be seen as an unwelcome challenge to the established order, i.e. still more back seat drivers, some without first hand publishing experience, engaged in second guessing the decision makers in an industry that is being overwhelmed by the forces of change. Either way, we will all have to learn to live with a steady stream of dissertations on publishing, telling us what should have happened, as well as what might happen next. Embrace it.

Appendix A

May 17, 2013 9:12:51 AM EDT Subject: Letter to Customers re: Move to Wolters Kluwer master brand

Over the next year, CCH Canadian Limited is going to have a new look and feel. Gradually, you will notice that our email addresses, logos on invoices, business cards, stationery, and promotional materials will feature the brand of our parent company, Wolters Kluwer.

Wolters Kluwer is a leading global information services and solutions company that purchased CCH in 1996. The company provides information, software, and services that help legal, tax, finance, and healthcare professionals make their most critical decisions effectively and with confidence. Customers worldwide depend on Wolters Kluwer services and solutions to successfully move through the complex layers of data and regulation that define modern business and government. We are proud to be part of the Wolters Kluwer family.

While our move to adopt the Wolters Kluwer brand will better align CCH Canadian with our parent company and its subsidiaries around the world, I want to assure you that there will be no changes made at CCH Canadian. We are simply moving to the Wolters Kluwer brand with no impact to our customers.

Please drop us a line at cservice@cch.ca if you have any questions about this change. We welcome feedback from valued customers like you.

Thank you for your continued support of CCH Canadian.

Best regards,

Steve Monk Vice President,
Wolters Kluwer Law & Business

The move only came though after a suspension by the Canadian Soccer Association (CSA) on June 10, and a statement by on Friday by the Fédération Internationale de Football Association (FIFA) that it allowed soccer players to wear the religious headgear. Sikhs in Quebec were dismayed over being excluded from the sport, and Canadians outside of Quebec questioned the approach of the organization.

The incident served as a flash point over the issues of integration, accommodation and even federalism. Premier Pauline Marois of the Parti Quebecois opposed the move by the CSA and was quoted as saying,

I believe the Quebec federation has the right to make its own rules, it's autonomous, it's not bound by the Canadian federation. In this regard, I support it in its orientations.

The FSQ though claimed its only interest was in ensuring safety. FSQ executive-director Brigitte Frot stated,

Our goal was always to have confirmation that the wearing of a turban was allowed by FIFA.

However, Frot has acknowledged that there has not been any data suggesting that the turban posed any safety risks to either those who wear them or others on the field. Frot was also quoted as saying,

They can play in their backyard. But not with official referees, not in the official rules of soccer. They have no choice.

Frot later claimed this quote was a mistranslation.

The incident may have highlighted tensions that many minorities in Quebec claimed they have faced for years. André Pratte of La Presse wrote in the National Post:

Many Quebecers sincerely believe that the best way to encourage harmonious relationships between different cultural and religious groups is to have identical rules for everyone. If you want to play soccer, you must abide by the rules of soccer, including not wearing things that might be dangerous, such as a necklace (even if it features a cross). So it should be for the turban.

What some in Quebec quickly forget is that the Canadian constitution was built on the principle of exceptionalism, creating different rights and obligations for the French language and culture in light of an English and Protestant majority. That same principle often fails to be extended towards other minorities existing within that minority population.

Many of these conflicts will unfortunately find themselves in the court room. Prior to the ban being lifted several Sikh organizations were preparing legal challenges. Requiring, or rather imposing, the same rules for everyone, regardless of circumstances, is certain to foster further tensions in Quebec in the years to come, unless the province finds better leadership, and soon. 

Would such an order be made in favour of private parties here? Would the private bodies first have to begin a legal proceeding against the pseudonymous tweeters – a civil action? a private prosecution? a human rights tribunal proceeding? Would they have to bring Twitter in as a party, whether or not claiming direct relief against Twitter?

Would a Canadian court (or other tribunal) make a direct order against Twitter, or would it seek letters rogatory or use some such evidence-gathering procedure to get information from Twitter in California? Has either process been done in Canada? What has Twitter done in response?

I take it to be relatively well established in Internet law these days that the laws of a place where Internet content is accessible will apply to that content, whether or not the content is legally acceptable or protected where it originated. This is true of expression as of other kinds of content (like commercial offers). I don't claim that everyone is comfortable with that result, but the law has found a number of principled justifications for the result.

The enforcement of foreign judgments based on the results of that application of law may be a separate question.

Other views?

Summaries of selected recent cases are provided each week to Slaw by Maritime Law Book. Every Sunday we present a precis of the latest summaries, a fuller version of which can be found on MLB-Slaw Selected Case Summaries at cases.slaw.ca.

This week's summaries concern:
Medical malpractice / Employment and discrimination / Building contracts and sureties:

Manary v. Strban et al. 2013 ONCA 319
Medicine - Liability of practitioners – Negligence – Team leader (incl. Most Responsible Practitioner/Physician)
A pregnant woman was admitted to hospital with chest pains. On the day she was to leave the hospital she died of a ruptured aorta/aneurism. Her baby was delivered by an emergency Caesarian section. The woman’s family brought a medical negligence suit against an obstetrician, who pursuant to hospital policy was the Most Responsible Practitioner/Physician for the woman’s care, a radiologist and the respirologist. The Ontario Superior . . .

Canadian National Railway v. Seeley et al. 2013 FC 117
Civil Rights - Discrimination – Employment – What constitutes discrimination
Seeley complained that her employer, the Canadian National Railway (CN), discriminated against her based on family status by failing to accommodate her parental childcare obligations and by terminating her employment. The Canadian Human Rights Tribunal allowed the complaint. CN applied for judicial review. The Federal Court dismissed the application.

APM Construction Services Inc. et al. v. Caribou Island Electric Ltd. et al. 2013 NSCA 62
Building Contracts - Labour and material payment bonds – Liability of surety – Extent of surety’s obligation
The Province of Nova Scotia retained APM Construction Services to act as the general contractor for renovations to one of its buildings. APM took out a payment bond with Travelers Guarantee Company of Canada. APM retained Caribou Island Electric Inc. to supply material and services on the project. Caribou retained a company carrying on business as Advance Cabling Systems (ACS) to supply material and . . .

On the second Sunday in each month we bring you a summary from Supreme Advocacy LLP of recent decisions at the Supreme Court of Canada. Supreme Advocacy LLP offers a weekly electronic newsletter, SupremeAdvocacyLett@r, to which you may subscribe.

Summary of all appeals and leaves to appeal granted (so you know what the S.C.C. will soon be dealing with). For leaves, both the date the S.C.C. granted leave and the date of the C.A. judgment below are added in, in case you want to track and check out the C.A. judgment. (May 8 – June 12, 2013).

APPEALS

Aboriginal Law: Duty to Consult; Abuse of Process
Behn v. Moulton Contracting Ltd. (B.C.C.A., July 06, 2011) (34404) May 9, 2013
The duty to consult exists to protect the collective, not individual, rights of Aboriginal peoples. The doctrine of abuse of process is characterized by its flexibility, and abuse occurred here.

Criminal Law: Defences; Parties; Abandonment
R. v. Gauthier (Que. C.A., July 26, 2011) (34444) June 7, 2013
Any defence with an air of reality should go to the jury, and meets that test if there is (1) evidence (2) upon which a properly instructed jury acting reasonably could acquit if it believed the evidence to be true. Abandonment should be put to the jury only if there is evidence capable of supporting finding a person who was initially a party to the carrying out an unlawful purpose subsequently took reasonable steps in the circumstances either to neutralize the effects of his or her participation or to prevent the commission of the offence.

Criminal Law: Provocation
R. v. Buzizi (Que. C.A., May 15, 2012) (34889) May 10, 2013
The trial judge here was obliged to put the defence of provocation to the jury.

Criminal Law: Baby Concealment
R. v. A.D.H. (Sask. C.A., Jan. 12, 2011)(34132) May 17, 2013
The trial judge and the majority judges of the Court of Appeal were correct to require subjective fault.

Tax: Reforestation Costs
Daishowa-Marubeni International Ltd. v. Canada (Fed. C.A., Sept. 23, 2011) (34534) May 23, 2013
Forest seller doesn’t include reforestation costs in sale proceeds.

Torts: Medmal; Judges' Reasons
Cojocaru v. B.C. Women’s Hospital and Health Centre (B.C.C.A., Apr. 14, 2011) (34304) May 24, 2013
While desirable that judges express their conclusions in their own words, incorporating substantial amounts of material from submissions or other legal sources into reasons for judgment by itself is OK. If incorporation is that such a reasonable person would conclude the judge did not put their mind to the issues and decide them independently and impartially, the judgment can be set aside.

Criminal Law: Impaired "Straddle" Evidence
R. v. Ibanescu (Que. C.A., Feb. 14, 2012) (34653) May 30, 2013
Straddle evidence is admissible to rebut the statutory presumption the blood alcohol level exceeds the legal limit. A statement of a legal principle accepted by a majority of the S.C.C. constitutes the opinion of the Court with respect to that legal principle, even if some members of the Court endorsing that legal principle dissent from the majority’s disposition of the appeal.

LEAVES TO APPEAL GRANTED

Civil Procedure in Quebec: Admissibility of Wiretaps
Can federal wiretaps in a federal Competition Act investigation of gas price fixing be admitted in a provincial class actions case.
Imperial Oil v. Simon Jacques, et al. (Que. C.A., Dec. 17, 2012) (35226) (See also 35231) June 6, 2013

Civil Procedure in Quebec: Admissibility of Wiretaps
Similar summary to that immediately above.
Couche-Tard Inc., Alimentation Couche-Tard Inc., Dépan-Escompte Couche-Tard Inc., et al. v. Simon Jacques, et al. (Que. C.A., Dec. 17, 2012) (35231) (See also 35226) June 6, 2013

Criminal Law: Arrest; Right to Counsel
Did the trial judge err by admitting and considering irrelevant and inadmissible evidence.
Mohammad Hassan Mian v. HMTQ (Alta. C.A., Oct 18, 2012) (35132) May 16, 2013

By all accounts, privacy is dead, the question is do people care? Personally, I do; but I cannot deny that if you go online then you must accept that you are leaving a trail, but that does not mean that we have to exchange our love of the interwebs and mobile computing in exchange for our privacy.

I observed this comment by a friend of mine and I feel it needs to be spread more widely: "The surveillance state did not invade the Internet; the surveillance state is the Internet".

Sadly, I am coming to believe that the above statement is true; it also gives me apprehension as to where the notion of privacy and the internet may be going.

Rowden, E., Wallace, A., Tait, D., Hanson, M. & Jones, D. (2013), "Gateways to Justice: design and operational guidelines for remote participation in court proceedings" (University of Western Sydney: Sydney), accessed from: http://www.uws.edu.au/justice/justice/publications

This topic is very timely across all Canadian jurisdictions. The Canadian Centre for Court Technology – Centre canadien de technologie judiciaire ("CCCT") chose remote appearances as a topic for its White Paper in 2012 (published in January 2013 and available here), and this week, the CCCT is offering a series of sessions on the same topic in a virtual environment provided by Forum 2012 Sponsor Avaya Government Solution – here is a pic of what it looks like (yes that's my avatar in the picture):

Patrick Cormier, CEO CCCT, lecturing on electronic signatures and remote appearances in Avaya's virtual environment (10-15 June 2013)

In this post, I share my impressions on the "Gateways to Justice" report.

I'm a big fan of well written, well presented and easy to understand papers. This report fits that description. I recommend it to anyone interested in deploying or enhancing court remote appearances.

The report details the findings and recommendations of a three-year Australian research team. The report had four aims:

1. Describe how social, technological and built environments of remote witness facilities affect the experience of justice participants;
2. Identify factors that produce a greater sense of presence;
3. Measure the impact of selected changes; and
4. Develop best practices guidelines.

In the foreword by Justice Richard Refshauge, it is readily apparent that the research underlying the report was conducted with the appropriate context:

"Courts and justice departments have a duty of care to court users; they should ensure that people are treated courteously and their needs for information and safety are met. One group of users who require special attention are vulnerable witnesses, especially child witnesses and adult victims of sexual assault. Another such group are witnesses, defendants or accused persons who live substantial distances from the court.

Yet a further issue is caused by the increasing reliance of courts on testimony from experts, who may be based interstate or overseas. […]

There are also concerns about implications for cost, safety and security associated with transporting defendants to and from courts for preliminary hearings or bail applications."

The report tackles remote appearance strategies, issues and recommendations along the following useful categorization:

• 2 facets: process and design. The impact of implementing an "enhanced process", "enhanced design" or both was separately assessed and measured in order to find out what changes had the most positive impact. "Enhanced process" includes, for example, testing and modifying the link with the remote participant prior to their scheduled appearance, whereas "enhanced design" would include, for example, to provide capacity to display documents and exhibits and for a remote participant self-view;
• 4 stages: prior, threshold, the encounter and afterwards. "Threshold" is a bit less intuitive than the other stages – it seeks to describe transitions, for example, the period when a witness is about to remotely appear in court.

One can get a quick feel for the flavour and nature of recommendations by reading the "summary of key strategies for improving the remote encounter" at pp. 13-16 of the report.

The report contains a useful literature review and related findings, which can save a lot of reading, something most of us will appreciate (see p. 7 of the report).

The remote space as being “two rooms in one”
(© 2011, Emma Rowden)

I also enjoy learning new ways to tackle the topic. One example is how the report characterizes the space of the remote location and then goes on to address related issues.

As it can be seen from "the remote space" diagram on the right, room A is what the remote participant sees. Room B is what in-court attendees see. An interesting recommendation is to plan for and offer to the judicial officer a separate video feed of the entire room, thereby enabling the judicial officer to exert real control over the remote location. Without this feed, there could be sources of distractions in room A that the judicial officer would have no way of seeing.

This separation of rooms A and B also allows for more precise recommendations with regards to room setup, decorum and layout.

On the plus side, I especially liked:

• how the report is categorized (process v. design and the 4 stages);
• the recognition of decorum and behaviour as an important part of a well-designed remote appearance solution;
• independently testing design v. process factors to measure their respective impact; and
• the inclusion of separate video feeds in the overall remote appearance experience: (a) remote room view for the judicial officer; and (b) to present documents or presentations for the remote participant.

I would have liked a discussion on proportionality. There is considerable research and information available on high-end remote appearance design and solutions, however, little is published on using low-end solutions. I understand the focus of the authors were vulnerable witnesses or expert witnesses in serious matters and that top quality communication is advocated in this report. I also understand that the study of low-end solutions was not within the scope of the report. Nevertheless, the trend in Canada is to adjust substantive and procedural safeguards to match the issues at stake in judicial proceedings. The obvious objective of this adjustment is for the Justice system to offer cost-effective litigation on a timely basis, otherwise litigants could shift to using alternative dispute resolution platforms and desert traditional courts and tribunals. Add the increasing budget cutting pressure in governments, query if low-end / high-volume litigation (e.g. small claims, landlord/tenant disputes) would be better served by allowing self-represented litigants to remotely appear in court using their own computer and camera? Admittedly, this raises a whole series of concerns, for example, whether simultaneous audio connection via phone would be better than computer audio, however, based on proportionality, I think the lower-end remote appearance avenue deserves further exploration.

I would also have liked a discussion of simultaneous remote appearances. How can one plan effectively for several remote appearances (design & process; 4 stages)? As remote appearances pick up in popularity, this issue is bound to be of increasing importance. It is not clear to me how can simultaneous remote appearances be optimally implemented and what would be a realisitic "cap" on the number of simultaneous remote appearances. I am also interested on how to implement "remote hot tubbing" of expert witnesses and if it can be done effectively (which I am not presuming).

Overall, I think this report deserves to be read first by anyone seeking to implement or improve remote appearances in adversarial settings. Next, if you are in Canada and are looking for information on the Canadian context, the CCCT White Paper 2012 on Court Remote Appearances (also available in French here) should be your next stop. Both papers read together will provide you with an excellent foundation to move forward.

I hope I don't disappoint you when I tell you that demonyms have nothing to do with demons. (For that I'd recommend The Dictionary of Demons by Belanger.) Rather, the demo is demos, a Greek word for the people and, more significantly for the fillip, the name for a certain type of municipality in Greece. Thus a demonym is a name given to describe a person from a particular place.

Eighty-two point seven percent of the time figuring out what to call someone from somewhere is no big deal. You throw -er or -al or -ian or -ite on to the end of the place name or its root and you've got it. (There was even a guy, George Stewart, who, back in the 30s, published seven laws for compiling demonyms. But this is Friday and we turn away from such regulation with just a trifle of scorn.)

Of course, a bunch of the time — seventeen point three percent, I'd estimate — it ain't so easy. Imagine the concern of the first Englishman to learn that people from France weren't Francers and that if from Paris they weren't Parisites. Chances are, however, that said Englishman was himself a Mancunian and, living in Manchester as he would be, could get by without serious contact with Francers, thus avoiding the problem of what to call them.

The thing for much of Britain is the Romans, who ran the place for the best part of four hundred years and left behind a lot of their sort of place names (taking with them when they left, alas, the secrets of hot water, indoor plumbing, and much of civilization). Thus, today's Manchester was once Mancunium, hence Mancunian. Mind you, poncy Latin doesn't always thrill the Brit, and so though people from Newcastle (on Tyne) are properly Novocastrians, they'll actually be Geordies.

I'm apparently entitled to style myself a Leodensian (though I'm an Aries), would probably get a better reception as a Loiner, and tend to call myself simply someone from Leeds. Not too far from there — nothing in Britain is far from anywhere — are Glaswegians, Brummies (Birmingham), Liverpudlians (Liverpool wins my award ✬ for the best demonym ever) and, in imitation, Hartlepudlians. But the fun continues around the world. Here are some nifty global demonyms for your delectation, in no particular order:

• Vallisoletano (Vallodolid)
• Paulistanos (São Paulo)
• Madrileño (Madrid)
• Muscovite (Moscow)
• Varsovian (Warsaw)
• Torontonian (Center of the universe)
• Galwegians (Galway)
• Mumbaikar (Mumbai)
• Carioca (Rio de Janeiro)
• Salemander (Salem)

That last one sounds contrived to me. Now, if you're going to make 'em up as you go along, there's a huge potential for fun — well, insult might be a better term. Thus, I'm told that people from Tasmania are sometimes disparagingly referred to as Tawegians by people to the north of that state, which is a sort of double whammy when you think about it. Baltimore cries out for Baltimorons; and any burgh the name of which ends in -ham (e.g. Bellingham) lends itself quite readily to -hamster. (Bellingham, by the way, always makes me think of Balham, and Peter Sellers' magnificent piece of satire, "Balham, gateway to the south." But I'm a digresser.)

Last but not least: Canada. We have an official demonym website. Yes we do. On the Language Portal of Canada. Most of what you'll find there is of the rather dull -er and -ian variety; some of it is of English origin, like Haligonian; but here and there you'll find home-made novelty. So those who live in:

• Rivière-du-Loup are Louperivois,
• Barkmere are Bark Lakers,
• Waterloo are Waterluvian,
• Moose Jaw are Moose Javian,
• Notre-Dame-de-Grâce are NDGers [pronounced how?],
• Saint John are Saint Johners,
• St. John's are St. John'sans or St. John'sers
• Trois Rivière are Trifluvians (Trifluviens)

Let me leave you with an issue that's a sort of demonym problem, if you consider Slaw a place — it certainly is a site, after all. So someone who "lives" here should be called what? I often use Slawyer. But John Gregory brought more thought to the issue, recognizing the parallel of Slaw and Shaw (as in GBS). This would result in Slavian to parallel Shavian. (You might well have a Moose Javian Shavian.) But Slavian is . . . less than lovely, perhaps, hence his choice of Slawian instead. Are there choices we've missed?

The lack of uptake for citation management software programs, such as Zotero, EndNote, and RefWorks, by even tech savvy legal practitioners and scholars has puzzled me for some time. The absence of these programs or similar solutions is particularly surprising when one considers the large number of vendor supplied and internally customized labour saving solutions law firms implement in the interest of repeatedly saving small amounts of time and the institution wide licences many universities have implemented to encourage their use. As I started exploring the reasons for this absence, I found that there are many issues surrounding it, and that they combine to create a wicked problem – one that is not easily solved and continues to become more complex the more detail is known about it.

Citation management software programs generally provide the ability to import citation and sometimes full text data in an appropriate format downloaded from research tools, with some research tools having the ability to insert information directly without the steps of exporting from the originating research tools and importing into the citation software. This set of citations can then be used in conjunction with a word processing program to automatically insert and format citations in documents. These databases can be treated as document, topic, or matter specific; or for someone with ongoing specific interests, one collection of resources can be developed over time.

By automating citation management and formatting, these software packages save considerable time in research and composition, but there are many issues surrounding their adoption by the legal community. The first issue is the fact that few people know of its existence and the amount of time it saves. In a prior position where I managed large numbers of citations on a regular basis, I estimated that I saved so much time that the software paid for itself every time I used it.

However, in looking to implement the software, I found that the main research services in law, including CanLII, Westlaw Canada, QuickLaw, and others, do not provide materials in a format that would readily allow for importing citation information into the databases, and that they would require manual data entry or copying and pasting each citation element separately. Legal information is generally presented in a semi-structured format, which means that there are generally labelled fields signifying relevant dates, docket numbers, judges, court, etc., but they are not tagged consistently. This format facilitates human access in improved readability, but limits the use of automated access to the data because the relevant fields are not presented in a consistent format the programs can recognize. To make the use of citation management software feasible, data will need to be presented in a machine readable format, such as RIS, and ideally be available for download with documents from multiple sources within a research platform in a single file, rather than requiring each document or set of search results to be downloaded individually. At this time each of the research platforms provides some aspects of these requirements, but none of them make all of the elements for importing machine readable documents available.

The lack of a suitable document export format would not be a complete limit to someone determined to use this software, as it is possible to take files exported from many of the services and convert them into a suitable format using a programming software such as Sublime Text and regular expressions, but this is a rather difficult process unless someone is quite comfortable with computer coding.

The next problem with using citation management software is the fact that the Canadian Guide to Uniform Legal Citation prescribes a level of detail for citations that is not supported by any extant software package I am aware of. Not only are the software packages not able to address the nuances of legal materials, but there are types of legal materials, such as looseleafs, which were not considered by the developers of the standards for data format and citation type. This level of customization means that there is not a citation management software product on the market that would be a workable solution. Either a software company will need to develop a custom product for law or a sufficient number of dedicated volunteers will need to develop from scratch or customize an open source alternative, such as Zotero. It seems unlikely that the legal market in Canada is sufficiently large to make the development of a custom citation management software package viable for a software company, as they are not generally very expensive.

There are multiple possible starting points to resolve this issue, including rationalizing legal citation style, improving output formats and functionality for legal research tools, and exploring options for software development. I believe the most logical place to start is for publishers to develop output styles for their electronic services that are compatible with the software, as a citation style file that will handle the majority of Canadian primary and secondary legal materials can be created, and this would only require manual editing of those materials that fall outside the style. This is a problem that should be solved: it is in the interests of all members of the legal community who write regularly to have access to these time saving software packages, as this is a place where immediate efficiency improvements could be made with little expense or change in work style.

Beverly Spencer posted a superb summary of the debate in the CBA National Magazine's Legal Insights & Practice Trends: Should there be a national "justice care" system in Canada?, and it is worth a read to get a flavour of the issues and arguments on either side of the question.

"Be it resolved that there should be a national justice care system in Canada" debate about to begin at #equaljustice

— Noel Semple (@NoelSemple) April 26, 2013

Dr. Alex Himelfarb provocatively argued "for" the resolution. Dr. Himelfarb is Director of the Glendon School of Public and International Affairs and is also a former Clerk of the Privy Council and Secretary to the Cabinet. Opposing the proposition was Sharon Matthews, Q.C., partner at Camp Fiorante Matthews Mogerman. Ms. Matthews is also Past President of the CBA's BC Branch.

This roundup of commentary on the debate offers a flavour of the points made and of the provocative tone of the discussion. From my take, Dr. Himelfarb's position centred on the idea of a national justice care system as the right thing to do in a just society. He acknowledged an "age of austerity," and suggested we refute and tackle this outlook. He suggested, rather, we focus on sparking the political imagination to make a national justice care system happen—as important to society as national health care. Yes, we'd see tax increases in this pursuit, but real and measurable benefits to society will result.

I heard Ms. Matthews to note that efforts toward a national justice care system would divert crucial attention and resources from current efforts. While a national justice system might seem a laudable goal, investment in a national justice care system can dilute the progress currently made and truly foreseeable in present access to justice initiatives. She cautioned against losing vulnerable access to justice accomplishments in the pursuit of what she dubbed, tongue-in-cheek, "Conradcare" – state support whether or not an individual needs it.

Great debate on #equaljustice: should there be a national legal care system? Inevitable or impractical?

— Canadian Bar Assoc. (@CBA_News) April 26, 2013

Back in 1996 he sold West for $3.4 billion. According to Wikipedia, in 2002, Forbes 400 ranked Opperman as the 239th richest person in the United States – and I'm willing to wager that no-one else (before or since) has made quite as much out of legal publishing. He started out as the son of a railroad worker, whose first job after law school was a simple editor, grappling with the key numbering system in the old West Building on Kellogg Boulevard. He was an innovative CEO who said yes to developing Westlaw, Natural Language Searching, etc., when more cautious souls would have continued with the tried and true. And he led the transition to Eagan.

For the best piece on what it was like in West Publishing before the sale, a piece from the American Lawyer by a reporter who is now the executive editor of The New York Times, see Jill Abramson's West Publishing: The Empire's New Clothes in Student Lawyer, Vol. 12, Issue 5 (January 1984), pp. 17-41 – it's on Hein Online.

He died in California after a short illness.

He had quite a sense of humour, which you can gauge by this wonderfully gossipy interview about the judges and politicians he knew. Scroll down for Justice Blackmun having to explain to Justice Thurgood Marshall exactly what was happening on a contentious movie the Supreme Court had to consider.

Chief Justice Roberts commented on the changes Opperman led in a 2009 lecture:

When the Court building opened, the Court's opinions were transmitted to the press office via pneumatic tubes. Western Union ticker- tape machines kept us up to date on the news. Technological changes from those days mean that we need a great deal more wiring behind our marble-paneled walls than we did in 1935. We are also installing wireless technology throughout the building, but still need more space-and reconfigured space-to do that. Dwight Opperman knows what I am talking about. He led West Publishing during the revolutionary development of electronic databases and computer-assisted research.

Lawyers and law students who effortlessly employ those tools today might not realize what a dramatic transformation they enabled in the legal research and information-gathering process. Thinking about that change led me to think about other ways in which information resources have affected our legal profession throughout the years.

It's the end of an era

And he made new law on the extent to which litigants can badger a non-party in depositions: see 197 F.3d 922 (1999) MISCELLANEOUS DOCKET MATTER # 1, Appellees, v. MISCELLANEOUS DOCKET MATTER # 2, Appellants. United States Court of Appeals, Eighth Circuit, Filed: December 10, 1999. The plaintiffs in a class action against West Publishing Company currently pending in the Middle District of Florida issued a subpoena in the District of Minnesota seeking the deposition of Dwight Opperman, West’s former president and CEO. After the district court quashed the subpoena, plaintiffs appealed. The 8th Circuit was first confronted with the issue of its jurisdiction to review the order quashing the subpoena. Relying on decisions from the 9th and 10th circuits, the 8th Circuit held that because the proceeding involved a nonparty and the main action was pending in another district, the district court’s order was immediately reviewable under the collateral order doctrine. Turning to the merits, the 8th Circuit held that the district court had not abused its discretion in quashing the subpoena.

Dwight won that one as well

When I help people with research or do a training session, I like to remind them that law reform bodies often deal with important public policy issues that are not on the government agenda but may nevertheless require critical analysis and potential reform. And judges who often need to address difficult or novel legal issues do refer to law reform publications in their judgments [a simple caselaw search in CanLII for the expression "law reform commission" produces close to 1700 results]. There are similarly high numbers for the caselaw in other common law jurisdictions.

In particular, I like the fact that many law commission reports conduct widespread consultation with stakeholders, compare how other jurisdictions deal with the same problem and frequently dig into the history of an issue. I once found a New Zealand Law Reform Commission project on the reform of the law of trusts that began with an introductory paper that included an analysis of the the origins of the concept of trust, all the way back to an old English statute in 1264, up through the Middle Ages, the reign of Henry VIII and into the modern era.

The past few weeks have a very busy time for law reform commissions. A sampling of reports:

• Law Reform Commission of Ireland Report on Mandatory Sentences
  From the press release: "The Commission’s Report discusses in detail: (1) the specific aims of criminal sanctions, which include deterrence, punishment, reform and rehabilitation, reparation, and incapacitation; and (2) the key principles in sentencing of consistency and proportionality. The Report contains a detailed analysis of sentencing guidance given by Irish courts in recent years, which have included: (a) the points of departure in the sentencing of certain serious offences, such as manslaughter, rape and robbery; (b) sentencing ranges for serious offences; and (c) factors that aggravate and mitigate the gravity of an offence and severity of a sentence. These key principles of sentencing law form the basis for the Commission’s responses to the Attorney General’s request. The Commission notes that the only completely mandatory sentence in Ireland is the life sentence for murder – judges have no discretion here and must impose a life sentence. They do not even have the power to suggest any specific minimum sentence, unlike the position in other jurisdictions… The Commission also examined other 'presumptive' mandatory sentences, such as those introduced in 1999 for certain drugs offences and in 2006 for certain firearms offences. The drugs offence law states that 10 years should be imposed where the 'street value' is over €13,000, but also allows for a lesser sentence in exceptional and specific circumstances. The Commission also examined other mandatory sentences law which require judges to impose higher or consecutive sentences where the convicted person is, for example, a repeat offender." The report examines the situation in other jurisdictions, including the use of mandatory minimum sentences in Canada, the United Kingdom, the United States, Scotland, Australia and New Zealand.
• Law Reform Commission of Saskatchewan Final Report on Waiver of Legal Fees for the Needy
  "As the costs of litigation and other legal services rise, concern about financial barriers to access to justice is increasing. Under The Queen’s Bench Rules , a potential litigant may, in some circumstances, obtain a waiver of court fees by obtaining a Needy Person Certificate. Needy Person Certificates are useful, but challenges exist respecting their scope and availability under the QB Rules . A further challenge is that Certificates are only available to litigants in the Court of Queen’s Bench and Court of Appeal. Individual rights are also adjudicated in the Small Claims Court and by boards and tribunals, which have varying policies regarding fee waivers. Responses to the Consultation Paper generally affirm that Needy Person Certificates and fee waivers in Saskatchewan need to be updated and expanded. This Final Report sets out the Commission’s proposals on improving access to justice for the less advantage d members of our community through fee waivers." The report looked at fee waivers in Ontario and British Columbia.
• Law Reform Commission of Ireland Report on Jury Service
  From the press release: "The Report forms part of the Commission’s Third Programme of Law Reform and examines a number of topics concerning jury service including: whether qualification for jury service should be extended beyond Irish citizens; the categories of persons who are ineligible for jury service; persons who are excusable as of right from jury service; deferral of jury service; disqualification from jury service arising from criminal convictions; jury tampering; juror misconduct, including independent investigations such as internet searches; juror expenses; lengthy and complex jury trials; and empirical research on the jury process (…) Other concerns include the extent to which the availability of wireless technology might allow jurors in the jury room to search online for information about an accused rather than limit their decision to the evidence presented. There is also concern that the general right to inspect jury panel lists runs the risk that jury members are open to intimidation or jury tampering. The Report also examines reforms that might be required to deal with lengthy or complex criminal trials." The Commission looked at the situation in many other jurisdictions, including England and Wales, Scotland, Northern Ireland, Australia, New Zealand, and the United States.
• Law Commission of England Consultation on Patents, Trade Marks and Design Rights: Groundless Threats
  "Intellectual property rights are a vital foundation of economic growth. Patents, trade marks and design rights ensure that innovation is rewarded and encouraged. If misused, however, they can stifle new ideas and inventions. Infringement litigation can be disruptive and expensive. The law provides a remedy in the shape of the threats provisions. Where a threat is made without a genuine intention to litigate; where there has been no infringement or where the right is invalid the threat is said to be groundless (or unjustified). Any person aggrieved by a groundless threat may apply to court for an injunction, declaration or damages. There are problems with the current law. The provisions do not distinguish well between the trade source of the infringement and others with a lesser connection, such as customers. Groundless threats actions can also be used tactically to drive a wedge between legal advisers and their clients or to drive cases to court rather than encourage negotiations over settlement."
• Australian Law Reform Commission Discussion Paper on Copyright Reform
  Under the Terms of Reference for its study of copyright reform, the ALRC is to consider whether exceptions and statutory licences in the Copyright Act 1968 are adequate and appropriate in the digital environment and whether further exceptions should be recommended. The ALRC is seeking feedback on the proposals from stakeholders. According to the press release: “The reforms proposed include the introduction of a broad, flexible exception for fair use of copyright material and the consequent repeal of many of the current exceptions in the Copyright Act, so that the copyright regime becomes more flexible and adaptable. An alternative model, should fair use not be enacted, suggests the addition of new fair dealing exceptions, recognising fairness factors. Other reform proposals relate to the replacement of certain statutory licences with voluntary licensing more suited to the digital environment; the use of orphan works; provisions relating to preservation of copyright material by cultural institutions; and contracting out of the operation of copyright exceptions. Two alternative proposals relating to the scheme for the retransmission of free-to-air broadcasts are set out for comment from stakeholders, in addition to other proposals relating to broadcasting.”

There is always a chance that a law commission has looked at a legal issue you may be working on. Slaw.ca collaborator Ted Tjaden has a section on how to find law reform commission reports on his legal research writing website.

Canadian Lawyer Magazine has reported on the ongoing proceedings between LSUC and Joseph Groia. As you are aware, Joseph Groia was found guilty of misconduct by a LSUC disciplinary panel last summer and he is appealing that decision.

The panel that will hear the appeal is comprised of 5 benchers – one of which is Peter Wardle.

Groia is seeking to have Wardle recused from that panel because as Canadian Lawyer reports, “‘There is a reasonable apprehension of bias arising from the fact that partners and associates at Mr. Wardle’s firm, Wardle Daley Bernstein LLP, regularly represent the Ontario Securities Commission as prosecutors and are closely involved in proceedings at the OSC and that Wardle LLP also regularly represents the Law Society of Upper Canada as prosecutors in discipline proceedings,’ wrote Groia’s counsel, Earl Cherniak, in a June 5 notice of motion…..Wardle has refused to recuse himself, the notice of motion notes.”

I emailed Peter Wardle for comment. He responded as follows: “Mitch, I can’t comment on this except to say that no decision has been made and that the Panel is convening to hear the motion in early July.”

I don’t know Joe Groia and I barely know Peter Wardle.

I also have no comment on the disciplinary decision against Joe Groia.

My concern is a very simple one that echoes past blog posts: LSUC has a tendency to make bad decisions which waste membership money.

Mr Wardle is a very bright guy who would add value to the appeals panel. However, he is not the only bencher in Convocation. Mr. Wardle was not elected as a bencher for sole purpose of sitting on appeals panels and he could have just as easily not been elected as a bencher– in other words, his status as a bencher is not based on his skills, but on the whims of lawyers in this province.

In other words, why is it so vital that Mr. Wardle sit on this appeals panel?

Why is LSUC wasting time and money fighting over a recusal that is quite frankly irrelevant given that there are numerous other benchers for this panel?

It appears that the Groia matter has now become personal to LSUC and it will not be told who can, and cannot, sit on the appeals panel.

The former CEO of LSUC and the current Treasurer have both cited complex prosecutions as a reason why LSUC burns through mountains of membership fees each year. Given the failure of LSUC to recognize a potential conflict on the Groia appeal panel and remove Mr. Wardle (thereby saving time and money), one has to wonder how many other very bad decisions have been made on past prosecutions that caused needless hearings and wasted money.

LSUC has to be far more strategic and sensible in these matters – the membership should not have its fees wasted because LSUC wants to puff out its chest in silly personality fights.

Remove Mr. Wardle from the panel and let’s get on with the appeal.

Once upon a time, but not so long ago, Canadian tort law contained a test for proof of factual causation in tort known as the material contribution (to injury) test. For those who might have forgotten, or never knew, that test seemed to have been affirmed, in Canadian tort law, by the Supreme Court in Athey v. Leonati [1996] 3 SCR 458, 1996 CanLII 183. A unanimous 7-member panel (Lamer C.J. and La Forest, Sopinka, Cory, McLachlin, Iacobucci and Major JJ.) in reasons written by Major J., stated at para. 15.

[15] The “but for” test is unworkable in some circumstances, so the courts have recognized that causation is established where the defendant’s negligence “materially contributed” to the occurrence of the injury: Myers v. Peel County Board of Education [1981] 2 S.C.R. 21;  Bonnington Castings, Ltd. v. Wardlaw, [1956] 1 All E.R. 615 (H.L.); McGhee v. National Coal Board, supra [[1972] 3 All E.R. 1008 (H.L.)]. A contributing factor is material if it falls outside the de minimis range: Bonnington Castings, Ltd. v. Wardlaw, supra; see also R. v. Pinske (1988), 30 B.C.L.R. (2d) 114 (B.C.C.A.), aff’d [1989] 2 S.C.R. 979.

The provincial and territorial trial and appellate judges of Canada, and many commentators, adopted this alternative approach to proof of factual causation with some relish (of many varieties), describing this approach as the Athey material contribution test. After Athey, for about a decade, the phrases "materially contributed" and "material contribution" became synonymous in the provincial trial and appellate courts. I’ve written too many words elsewhere about that issue. I won’t rehash it.

The Supreme Court, however, didn’t return to the material contribution test issue for about a decade. Walker Estate v. York Finch General Hospital, [2001] 1 SCR 647, 2001 SCC 23. The Walker Estate version of a material contribution test, whatever it meant or now means, was never the Athey version, whatever some trial or appellate judges might have thought or claimed. That ought to have been clear enough from the text of Walker Estate, itself.

When the Supreme Court finally returned to Athey material contribution in 2007 in Resurfice Corp. v. Hanke, [2007] 1 SCR 333, 2007 SCC 7 - after having rejected a decade of leave applications which asked the Court to explain this aspect of Athey – a unanimous 9-member Court (McLachlin C.J., Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.) in reasons written by McLachlin CJ seemingly rejected, killed, and buried the Athey meaning of material contribution or materially contributed as a test for proof of factual causation on the balance of probability. Resurfice seemingly declared an entirely different meaning for material contribution or materially contributed which eliminated the need, under that that test, to prove factual causation on the balance of probability and, in so doing, removed the concept of “material contribution” or “materially contributes” from the but-for lexicon.

However, some judges of one appellate court, and in lockstep the subordinate trial judges, seemingly didn’t think so. They posited a distinction between "material contribution" in the material contribution test and the phrase "materially contributed", with the latter but not the former being defined by Athey's "[a] contributing factor is material if it falls outside the de minimis range". Hence, a panel of Farrant v. Laktin, 2011 BCCA 336 wrote:

[10] In Resurfice Corp. v. Hanke, 2007 SCC 7, 1 S.C.R. 333, the Supreme Court affirmed the “but for” test remains the basic test for determining causation, but developed the concept of “material contribution” in a different manner than that used in Athey, formulating a “material contribution” test as an exception to the “but for” test, a matter that is not relevant to this appeal. The Court replaced the Athey definition of “material contribution” to the plaintiff’s injury with the concept of “a substantial connection” between the injury and the defendant’s conduct. These developments were usefully summarized by Mr. Justice Smith, writing for the majority, in Sam v. Wilson, 2007 BCCA 622 at para. 109:

 “Material contribution”, as that phrase was used in Athey v. Leonati, is synonymous with “substantial connection”, as that phrase was used by McLachlin C.J.C. above in Resurfice Corp. v. Hanke. This causal yardstick should not be confused with the “material contribution test”. …

 [11] Thus, in applying the “but for” test, the trial judge was required to consider not just whether the defendant’s conduct was the sole cause of the plaintiff’s disabling pain, but also whether the plaintiff had established a substantial connection between the accident and that pain, beyond the de minimus level.

The passage in Resurfice that Farrant refers to is para. 23:

[23] The “but for” test recognizes that compensation for negligent conduct should only be made “where a substantial connection between the injury and the defendant’s conduct” is present. It ensures that a defendant will not be held liable for the plaintiff’s injuries where they “may very well be due to factors unconnected to the defendant and not the fault of anyone”: Snell v. Farrell, at p. 327, per Sopinka J.

As one might expect (remember stare decisis?), the Farrant passage was quoted by British Columbia Supreme Court judges, after Resurfice, as the meaning of the but-for test.

Then, in 2012, in Clements v. Clements, [2012] 2 SCR 181, 2012 SCC 32, a unanimous 9-member Supreme Court (McLachlin C.J., Deschamps, Fish, Abella, Cromwell, Moldaver and Karakatsanis JJ.), in reasons again written by McLachlin C.J., explained the meaning of but-for and reiterated the change in the meaning of material contribution. Whatever else Clements means, it unquestionably holds that the but-for test is a test based on “necessity”, not merely "substantial connection" beyond de minimus, and that “material contribution” is not a reference to some method of establishing factual causation on the balance of probability. In case anybody needs a reminder of what the Court wrote:

 [8] The test for showing causation is the “but for” test. The plaintiff must show on a balance of probabilities that “but for” the defendant’s negligent act, the injury would not have occurred. Inherent in the phrase “but for” is the requirement that the defendant’s negligence was necessary to bring about the injury ― in other words that the injury would not have occurred without the defendant’s negligence. This is a factual inquiry. If the plaintiff does not establish this on a balance of probabilities, having regard to all the evidence, her action against the defendant fails.

. . . . .

 [14] “But for” causation and liability on the basis of material contribution to risk are two different beasts. “But for” causation is a factual inquiry into what likely happened. The material contribution to risk test removes the requirement of “but for” causation and substitutes proof of material contribution to risk. …

[15] While the cases and scholars have sometimes spoken of “material contribution to the injury” instead of “material contribution to risk”, the latter is the more accurate formulation. As will become clearer when we discuss the cases, “material contribution” as a substitute for the usual requirement of “but for” causation only applies where it is impossible to say that a particular defendant’s negligent act in fact caused the injury. It imposes liability not because the evidence establishes that the defendant’s act caused the injury, but because the act contributed to the risk that injury would occur. Thus, this Court in Snell and Resurfice Corp. v. Hanke, 2007 SCC 7, [2007] 1 S.C.R. 333, raised the possibility of a material contribution to risk approach.
[Emphasis in original.]

Clements also referred to Snell’s use of “substantial connection”.

[21] Sopinka J. went on to underline the importance of establishing a substantial connection between the injury and the defendant’s negligence. The usual requirement of proof of “but for” causation should not be relaxed where the result would be to permit plaintiffs to recover in the absence of evidence connecting the defendant’s fault to the plaintiff’s injury. Thus, Sopinka J. stated that if the injury likely was brought about by “neutral” factors, that is, it would have occurred absent any negligence, the plaintiff cannot succeed. To allow recovery where the injury was the result of neutral factors would neither further the goals of compensation, fairness and deterrence, nor comport with the theory of corrective justice that underlies the law of negligence.

[Emphasis in original].

One might suppose that that Clements would have fixed the stake in Athey material contribution’s heart; that is, material contribution, by any name or any version such as “materially contributes”, as a method of proof of factual causation on the balance of probability where the meaning is anything less than “necessity”.

That supposition would be wrong. Farrant – that is, Athey's material contributing to injury in the guise of but-for as a “substantial connection” – still lives in British Columbia, even after Clements. The most recent appearance – there other others – is Andrusko v. Alexander, 2013 BCSC 985 where the trial judge wrote:

 [95] The plaintiff must establish on a balance of probabilities that the defendant’s negligence caused or materially contributed to an injury. The defendant’s negligence need not be the sole cause of the injury so long as it is part of the cause beyond the de minimis range. Causation need not be determined by scientific precision: Athey v. Leonati, [1996] 3 S.C.R. 458 at paras. 13-17.

[96] The primary test for causation asks: but for the defendant’s negligence, would the plaintiff have suffered the injury? The “but for” test recognizes that an award of compensation for negligent conduct should be made only where a substantial connection between the injury and the defendant’s conduct is present: Resurfice Corp. v. Hanke, 2007 SCC 7 at paras. 21-23. …

The claim that the existence of a but-for cause requires that there be a “substantial connection” between negligence and injury has been asserted by the courts (trial or appellate) of some of the other Canadian common law jurisdictions: Alberta, Saskatchewan, Manitoba, Ontario and Nova Scotia), although (seemingly) without equating “substantial connection” to “material contribution” or "materially contributes". The screen shot below provides the CanLII search that will take you to the cases. There are some more in 2007.

(Click on image to enlarge)

Not surprisingly, none of the cases that equate but-for with substantial connection mention the Clements definition of but-for in paragraph 8 (some, after Clements, still don’t cite Clements, but just Resurfice) nor this statement in Athey, at para. 41.2: “Even if the accidents played a minor role, the defendant would be fully liable because the accidents were still a necessary contributing cause.” [Emphasis in original.]

Older hands might find that surprising (or not) because the Athey passage was commonly cited before Resurfice by judges looking to explain why the seemingly minor negligence of defendant (usually with sufficient assets, though that point isn’t mentioned) was held to be a factual cause of a plaintiff’s serious injury.

Of course, it's possible that all that all of the judges in the "substantial connection" stream were trying to say is something about the quality of the evidence that must be adduced by the party with the onus before the courts will hold that but-for connection has been established (but that's stretching their language) or that an actual but-for cause isn't a legal but-for cause unless it's also a substantial necessary connection (but that's remoteness, not factual connection so stretching the judicial language even more).

In any event, why is the title of this piece what it is?

A Master of the Alberta Queen’s Bench once wrote that stare decisis creates a judicial pecking order in which judges lower on the pecking order are not entitled to ignore the decisions of their pecking order superiors.

[51] Any legal system which has a judicial appeals process inherently creates a pecking order for the judiciary regarding where judicial decisions stand on the legal ladder.

[52] I am bound by decisions of Queen’s Bench judges, by decisions of the Alberta Court of Appeal and by decisions of the Supreme Court of Canada. Very simply, Masters in Chambers of a superior trial court occupy the bottom rung of the superior courts judicial ladder.

[53] I do not overrule decisions of a judge of this court. The judicial pecking order does not permit little peckers to overrule big peckers. It is the other way around.

That statement is literally accurate. However, there is a qualification, in practice, that all lawyers and judges know. In most cases, an appeal doesn’t get to the Supreme Court of Canada without leave of that Court. The mere fact the underlying decision is wrong is not supposed to be a sufficient basis for the Court to grant leave. So, in practice, the judges of the lower courts are free to assert what they believe to be the meaning of a Supreme Court decision, even if that meaning seems at odd with the meaning of that decision, until the Supreme Court says otherwise.

That means, in practice, that trial judges have to pay close(r) attention to what their own appellate courts say Supreme Court of Canada decisions mean, until the Supreme Court says otherwise. For example, many provincial trial judges and appellate judges across Canada (and some commentators) before the Supreme Court of Canada’s decision in Resurfice certainly believed that the Alberta Court of Appeal’s explanation of the meaning of Athey material contribution, in the ABCA’s Resurfice decision, 2005 ABCA 383 at para. 14 – Where there is more than one potential cause, the “material contribution” test should be used: Walker Estate v. York Finch General Hospital [2001] 1 S.C.R. 647 at 679-680 – was exactly what the Supreme Court had meant in Athey. The Supreme Court disagreed in Resurfice, at para. 19:

[19] The Court of Appeal erred in suggesting that, where there is more than one potential cause of an injury, the “material contribution” test must be used. To accept this conclusion is to do away with the “but for” test altogether, given that there is more than one potential cause in virtually all litigated cases of negligence. If the Court of Appeal’s reasons in this regard are endorsed, the only conclusion that could be drawn is that the default test for cause-in-fact is now the material contribution test. This is inconsistent with this Court’s judgments in Snell v. Farrell, , [1990] 2 S.C.R. 311; Athey v. Leonati, at para. 14; Walker Estate v. York Finch General Hospital, [2001] 1 S.C.R. 647, 2001 SCC 23, at paras. 87-88, andBlackwater v. Plint, [2005] 3 S.C.R. 3, 2005 SCC 58, at para. 78.

In any event, once upon a time, even longer ago, a judge of the Ontario Superior Court (who later became a judge of the Ontario Court of Appeal) made the pointed and poignant observation that it “ignores reality” to expect that a trial judge will use technical principles of stare decisis to avoid applying what seems to be his or her own Court of Appeal’s current thinking on some issue. See Krever J., as he then was, in Woloszczuk v. Onyszczak (1977), 14 O.R. (2d) 732 at 739, 74 D.L.R. (3d) 554 (H.C.J.).

In speculative literature, zombies and vampires are corpses of humans and other creatures that were killed but then revived by some outside force. Zombies and vampires are part of the speculative fiction “undead”. If one takes Farrant and the "but-for as substantial connection" cases at their word, Athey material contributing to injury is not dead. It’s simply resurfaced in different clothes. (It’s the Emperor’s new raiment, as it happens. Fitting.)

Calling Dr. Van Helsing or Blade.

There’s a folk tale ( See http://www.phrases.org.uk/meanings/305250.html) that Shakespeare’s line in Romeo and Juliet that a rose would still smell the same even if known by another name had a second meaning that patrons of the English theatre at the time would have understood: not the sweet smell of the rose but the rank smell from the Rose Theatre’s not quite state of the art lavatory facilities.

Plus ça change.

The so-called “Senate scandal” is about the delinquency of three or four senators[i] (out of 105 senatorial seats and with three current vacancies) who have been found to have been billing for reimbursements to which they are not entitled. One does not have to favour deceit, or to fail to condemn those who take more than their share to recognize that the wrong doing of these few has become a thinly veiled excuse for a general attack on the Senate as an institution both by Stephen Harper and by Tom Mulcair. Various journalists, Margaret Wente has become a leading example, have also rushed in to insist on their right to an opinion on a subject about which they are uniquely unqualified.

It is my belief – on several grounds – that if (a) the Senate were less disliked, particularly by journalists and (b) Canadians were less ignorant about the Senate and the work that it actually does, it would be harder for political leaders and journalists to engage in the bad mouthing of the institution as a whole over the misconduct. It is not necessary to loathe the institution – which I, among others, actually much admire – to think that it has room for improvement. Of course, what has kept it so largely in its original form is the difficulty agreeing on just what reforms are most desirable to the greatest number of provinces.

The connection between Harper’s original position and Mulcair’s is that both proposed to carry on as though the Senate provisions in the Constitution Act, 1867 did not exist: Harper refused, when he first took office to make appointments with the result that he could not get his legislation passed. Harper, like everyone else, is entitled to his own opinion, but if we recall the term “the machinery of government,” following the present provisions for filling Senate vacancies, a frequent favourite of PCO staff, is akin to using whatever kind of gear stick (or other essential features) with which the car you are driving is equipped. Likewise, Mulcair’s proposal to de-fund the Senate, would, of course, make it impossible for the Senate to function. But, as the Supreme Court observed in the previous Senate reference decision, the Senate is one of three vital parts of Parliament as it is now constituted. Indeed, there is something quite dangerous about political leaders who think that, by dint of their own will, or their caucus’s resolutions, they can over-ride the Constitution.

Wente described the reports of Senate committees as “useless”. I would not think that any study that reviews the historical and current fact situation in a given policy arena and then makes recommendations that are two or three steps ahead of the government, but not too many more, is actually invaluable. I have seen two articles by people who have frequently appeared as witnesses before both Senate and Commons Committees that set out their writer’s reasons for favouring the Senate committees: (1) Senators come to committee much better prepared; (2) the discourse is much less partisan, and (3) they listen. The late Justice Abraham Lieff, a friend of my father for many years, told me once that he began his legal career doing parliamentary relations (a field in which I have worked for many years). Looking back to those long ago days, after many years on the bench, Justice Lieff asked about my experience with committees, “Did they listen?” Neither group of parliamentarians is perfect on this question but, if one were scoring committees, the Senate committees would score far higher than the Commons committees.

The Senate does do a serious job of reviewing legislation – not as often as some people, myself included, would wish, but more often than is generally acknowledged. Reporters and academics in a hurry flip through the Senate Hansard index for votes defeating bills. But, in keeping with their non-elected status, senators often find creative alternatives rather than defeating a bill outright. A bill on humane trapping led to a coalition of Aboriginal senators and senators on the Legal and Constitutional Affairs Committee agreeing that the bill jeopardized s. 35(1) Aboriginal and treaty rights. The Committee split the bill, recommended passage of the portions not affecting those rights and produced amendments to the other bill that protected the previously imperiled s.35(1) rights. I can think of a series of other examples of a Senate committee finding creative ways to improve a bill by correcting its worst defects rather than defeating it.

The Senate Committee on Aboriginal Peoples has become a safe haven for quite sensible studies of successive Governments’ failures to fulfill their s.35 (1) obligations. Considering the Government’s hostility to these rights and the increasingly politicized style of the Aboriginal Affairs Committee of the Commons this is a great and important service.

When I have reviewed the bills that were either defeated or substantially amended against the government's wishes I notice that in each and every instance one or both of two arguments have been made: first, that the bill violates one or another fundamental right; and, secondly, that the Commons passed the bill without much scrutiny. I think this weighs strongly against the Harper argument about the Senate being undemocratic.

If the majority of senators can be convinced that a bill violates the Charter (and possibly other sources of rights) then, clearly, those senators have a duty to oppose the bill. Prof. Brian Slattery argues that the Court is actually the third line of defence against Charter violations: the drafters have an obligation to work within the framework of the Constitution and parliamentarians, in both Houses, have a duty to pass only legislation that is plausibly constitutional.

The only tie vote in the Senate arose from a report of the Legal and Constitutional Affairs Committee recommending against the adoption of Kim Campbell's anti-abortion bill. Prof. Lorraine Weinrib told the Committee that that bill was more unconstitutional than the one that the Court had already struck down. The Liberal women senators managed to bring enough Conservative women senators over to opposing the bill that it was defeated in the Senate, following the report of the Committee, on a tie vote.

If the Commons is going to pass such bills, then I, for one, am grateful that we have a Senate that does intervene from time to time. One recent article criticized the Liberals for holding up the Conservative resolution to invite the Auditor General to review Senatorial expenses. But the Government Leader, Sen. Marjorie LeBreton, has taken to distributing resolutions after the Senate has started to meet on the day she wants them passed. The rules provide for 48 hours for Senators to read resolutions, motions and bills before being asked to vote on them.

When Evan Solomon, the host of the C.B.C. program The House was interviewing Katie O’Malley about the Senate Committee on Internal Economy holding open door meetings, Ms O’Malley repeatedly pointed out that getting the doors of the internal economy committee of the Senate to stay open was far more likely than the doors of the Commons Board of Internal Economy. Solomon kept ignoring her “on the ground” report. He also kept confusing the name of the Senate Committee on Internal Economy with the name of the Commons Board on Internal Economy. A small point perhaps; but one that is symptomatic of a disinclination to get close enough to the Senate to learn the names of its various parts.

I won't begin to get into reforms that I would favour. I'm concerned here, simply to establish that those who embark on tirades against the Senate because of the misconduct of three or four senators, tend to speak and act out of highly ideological and largely ahistorical thinking; and, that the radical disconnect between the malfeasance of a few senators and the actual strengths and weaknesses of the Senate simply confounds the issues.

Each Thursday we present a significant excerpt, usually from a recently published book or journal article. In every case the proper permissions have been obtained. If you are a publisher who would like to participate in this feature, please let us know via the site's contact form.

Commercial Debt Collection in Canada: A Legal Handbook
David Franklin
Toronto: Canada Law Book, 2012

Preface

Familiarize yourself with all books of law and, for as long as you are a merchant, familiarize yourself with the Birka code. If you are familiar with the law, you will not be the victim of injustice when dealing with your equals, and you will know how to answer all matters in a lawful manner. *

The above quotation was referred to in David Franklin’s book on International Commercial Debt Collection (2007) and his book on International Commercial Secured Transaction (2010), both with Thomson Reuters.

Whereas the first two books deal with creditors rights in an international perspective, this book deals solely with Canada. Nevertheless, the above quotation also applies. There are ten provinces in Canada and three territories, each with separate rules of procedure. There are two distinct legal regimes, namely the common law and the civil law of Quebec. Furthermore, the non-Canadian reader is presumably not familiar with Canadian law, so the quotation is particularly apt.

As the focus of this present book is on decreasing trade risk by understanding the procedures available for trade creditors, this overview of the Canadian jurisdictions provides a timely and practical guide to enforcing creditor rights.

The analysis by commercial lawyers of various topics and provincial jurisdictions is practical not only for exporters involved in cross border and inter-provincial commerce, but also for attorneys, export insurers and financial institutions, and collections agencies whose clients conduct business in Canada.

In the previous Books on international debt collection, there was the caveat that needs to be repeated, namely that this handbook is intended as merely a guide and a brief non-comprehensive summary of various legal jurisdictions, and all readers are invited to communicate with the various contributors to the book for more detailed information

* Excerpts from the King’s Mirror, The Vikings’ Guide to Good Business. Translated from the original 13^th century text by Bernard Scudder. Published by Gudrun 1997. The Birka code is basically a legal code, being the oldest civil law in Scandinavia dealing with trade.

. . . .

Debt Collection & Criminal Law in Canada

Restitution

General

Victims of crime who suffer a financial loss as a result of criminal conduct have the right to seek financial compensation in the form of court ordered restitution from an offender. Restitution in criminal law is available to victims of crime under sections 738-741.2 of the criminal code.

Restitution occurs when an individual (corporate or otherwise), convicted or discharged of an offence, compensates the victim for the financial damages that they may have incurred. It must be noted that restitution, unlike in the civil system, is a sentence after a finding of guilt.

Types of restitution orders

There are three manners in which restitution may be ordered in Canada:

1. Stand-alone orders imposed in addition to another sentence (section 738 of the Criminal Code);
2. Ordered as a condition of a probation order (section 732.1(3.1)a) of the Criminal Code); and
3. As a condition of a conditional sentence of imprisonment (section 742.3(2)f) of the Criminal Code).

In Canadian criminal law, the courts will only consider restitution in appropriate cases, taking into consideration the fundamental principles of sentencing and the individual facts of a case. Restitution is often considered a right that victims may have in the sentencing process. It may be ordered with respect to:

1. The destruction or damage to property. An offender can be ordered to pay to persons whose property was either lost or destroyed the replacement value of the property, provided that the damage, loss or destruction of the property was the result of the commission of the offence or of police intervention while responding to the offence. The amount to be reimbursed to the victim cannot exceed the replacement value of the property at the time the order is made.
2. An offender may be ordered to pay monetary damages, including loss of income and support, to a victim who has suffered bodily harm as a result of the commission of a criminal offence or police intervention.
3. Monetary damages associated with moving out of a household shared with an offender in cases of bodily harm or its threat. The order would necessarily compensate expenses incurred by a spouse, child or other individual who is a member of the offender’s household, for temporary housing, food, childcare and transportation.
4. Ascertainable pecuniary damages as a result of psychological harm caused by an offence.
5. Compensation to third parties acting in good faith that incur a loss as a result of criminal conduct (section 739 of the Criminal Code). This section permits the court to order restitution to an individual who has purchased property in good faith and without notice that said property was obtained by the commission of an offence (usually fraud or theft), and where the property has been returned to its lawful owner. This section also gives the court jurisdiction to render a similar order to an individual that has loaned money to an offender on the security of the impugned property provided that the person was acting in good faith and without notice.

Inquiry as to loss

It is important to note that the criminal courts will only intervene and order restitution if the quantum of the loss is readily ascertainable. In R. v. Zelensky, [1978] 2 S.C.R. 940, the Supreme Court of Canada made it clear that restitution orders fall under jurisdiction of the criminal courts because they are part of the sentencing process. The Court noted that such orders are only appropriate when the amount of the loss is easily quantifiable. The Supreme Court addressed this issue in R. v. Zelensky when it stated the following at page 963:

Section 653 does not spell out any procedure for resolving a dispute as to quantum; its process is, ex facie, summary but I do not think that it precludes an inquiry by the trial judge to establish the amount of compensation, so long as this can be done expeditiously and without turning the sentencing proceedings into the equivalent of a civil trial or into a reference in a civil proceeding.

The Crown has the onus of demonstrating that the amount claimed relates to the offences for which the accused has been convicted or discharged. With regards to reimbursement for the loss or destruction of property, restitution of any loss is limited to an amount not exceeding the replacement value of the impugned property. Accordingly, the Crown has the evidentiary burden of establishing the actual loss as well as the replacement value. If such evidence is not provided to the court, there is no basis to a restitution order. There seems to be conflicting jurisprudence vis-à-vis the recovery of incidental damages such as legal fees and disbursements.

Standing

In the earlier versions of the Criminal Code provisions governing restitution, the person having suffered the loss made the application for a restitution order. However, pursuant to the current provisions of the Criminal Code, an application for restitution is invoked by either the Crown or the by the court on its own motion. Accordingly, the victim has no standing to petition the court to render an order for restitution.

Enforcing a restitution order

Although an order for restitution is made by a criminal court as part of an offender’s sentence, it does have certain similarities to an order made in a civil court. The Criminal Code provides relief under section 741 for creditors of restitution orders that are not complied with. If an offender does not comply with the terms of a restitution order, the victim can file the order in a court of civil jurisdiction and use the enforcement methods available in civil law to collect the monies owed by the offender. For example, bank accounts may be seized, wages may be garnished and liens may be placed on property.

Restitution and civil remedies

In R. v. Zelensky, the Supreme Court emphasized that the restitution provisions in the Criminal Code should not be used as a substitute to civil proceedings under provincial legislation. The Court stated the following at page 962:

I wish to dwell further on the course of proceedings in this case in order to provide some guidance to trial judges on the proper application of s. 653 and in order to make clear that s. 653 is not to be used in terrorem as a substitute for or a reinforcement for civil proceedings. Its validity is based, as I have already said, on its association with the sentencing process, and its administration in par­ticular cases must be limited by that consideration.

The Court left open the question of whether an application for an order of restitution constituted an election against civil proceedings, specifically if a victim is only partially compensated. Parliament seems to have clarified this question by enacting section 742.1, which states that:

A civil remedy for an act or omission is not affected by reason only that an order for restitution under section 738 or 739 has been made in respect of that act or omission.

Accordingly, a restitution order does not operate as res judicata to the institution of civil proceedings for incurred damages. Conversely, a civil judgment awarding damages to a victim does not prohibit a court of criminal jurisdiction to order restitution when sentencing an offender. However the courts should be mindful that double recovery ought to be avoided.

Conclusion

Restitution can be used to accomplish many of the objectives of sentencing in Canada. From a debt collection perspective, its importance rests in the courts ability to compensate victims of crime for the financial losses they have suffered. While civil proceedings can be lengthy and expensive, the cost of redressing financial loss as a result of a criminal offence (in a criminal court) is not borne by the victim. While one should not use the criminal courts as a substitute for civil proceedings it may be wise, in appropriate circumstances, for one to consider criminal proceedings as a means of redressing ones loss through issuance of a restitution order.

[1] The appellant Johnny Bouchard appeals from the order of the Superior Court of Justice dated April 5, 2012, dismissing the appellant’s claim for custody of the parties’ two children, Tyler (age 10) and Nicholas (age 8). The application judge ordered that the custody and access arrangements in existence at the time of trial pursuant to the earlier order of Judge MacKenzie of the Ontario Court of Justice should continue and that a review of the orders in respect of custody and child support should take place after December 31, 2012. He subsequently conducted that review and again declined to alter the arrangements as ordered by the Ontario Court of Justice.

[2] The appellant contends that the order under appeal in effect varied the order of the Ontario Court of Justice made under s. 29 of the Children’s Law Reform Act, and that the Superior Court of Justice had no jurisdiction to make the order.

[3] We accept this submission. The respondent should have brought a motion to change the Order of Judge MacKenzie of the Ontario Court of Justice and a separate application regarding her claims for equitable relief in the Superior Court of Justice. She ought to have then requested a consolidation and transfer of the lower court proceeding to the Superior Court.

[4] The Children’s Lawyer counters this analysis with the assertion that this court has jurisdiction, and should exercise it, to permit the consolidation and transfer of the proceeding to the Superior Court of Justice pursuant to ss. 110(1) and 134(1) of the Courts of Justice Act :

110(1) Where a proceeding is brought or taken before the wrong court… it may be transferred … to the proper court….

134(1) Unless otherwise provided, a court to which an appeal is taken may,
…
(c) make any other order or decision that is considered just.

[5] We do not accept this submission. The wrong court in this case is the Superior Court of Justice because of the existing proceeding and Order in the Ontario Court of Justice. Section 110(1) would permit this court to transfer the proceeding back to the Ontario Court of Justice. However, this does not accomplish the goal sought by the Children’s Lawyer, namely, a disposition on the merits of the appeal from the decision of the Superior Court of Justice. In oral argument, counsel for the children candidly admitted that, in order to be successful in achieving this objective, s. 110(1) would have to be interpreted to permit a double transfer, first from the Superior Court to the Ontario Court and then from the Ontario Court back to the Superior Court. In our view, the straightforward language of s. 110(1) does not support such a convoluted result.

[6] Having said that, we observe that after Judge MacKenzie’s order was made in the Ontario Court of Justice, both parties mistakenly initiated proceedings in the Superior Court of Justice relating to the custody of Tyler and Nicholas. This ultimately led to the application judge’s comprehensive reasons dealing with this issue. As the matter was fully argued before us, we have decided to provide comments on the substantive issues raised by the appeal for the potential benefit of these parties and other parties and judges involved in similar proceedings.

[7] In addition to the jurisdictional issue, the appellant challenged the trial judge’s decision on two grounds. . . .

Imagine trying to explain this in some detail to your neighbour. When the fate of children is bound up with legalistic wayfinding as tangled as this, a game of snakes and ladders in effect, something has gone profoundly wrong.

One of the fears we often hear from business people and lawyers who are reluctant to put “final and binding” arbitration clauses in contracts is: “What if the arbitrator gets it wrong?”

The recent decision of the British Columbia Court of Appeal in Creston Moly Corp. v. Sattva Capital Corp., 2012 BCCA 329 (CanLII) offers an object lesson in how the courts may still be too eager to review arbitration decisions and may even get the result “wrong” in situations where the arbitrator actually “got it right”.

The case involved a dispute over the payment of a finder’s fee in a mining deal. In 2006, Sattva brought Creston (formerly called Georgia Ventures) a potential acquisition of a mine in Mexico. They agreed that Sattva would get a finder’s fee if the acquisition closed. The amount of the fee was subject to approval of the TSX Venture Exchange (VE) and was payable in shares. Under the TSX VE rules, the amount of the finder’s fee was $1.5 million, based on the value of the deal. There was no dispute about that. However there was a dispute about the value of the shares, which was submitted to arbitration.

When the companies signed the finder’s fee agreement, and before the acquisition deal was signed, GVI had issued a number of shares at $0.15. Trading in GVI shares was halted pending announcement of the deal. Soon after it was announced, GVI raised more money at $0.70 a share.

Sattva claimed payment of its finder’s fee in shares at $0.15 a share. Georgia offered to pay either in cash or in $0.70 shares. In seeking approval of the finder’s fee from the TSX VE and its own shareholders, Georgia apparently only sought approval of the payment of $1.5 million in cash. It did not disclose Sattva’s claim for shares at $0.15.

The Court of Appeal summarized the relevant portions of the arbitrator’s award as follows:

[14] The arbitrator addressed the import of the Agreement at paragraph 23 of the Award:

In summary, then, as of March 27, 2007 it was clear and beyond argument that under the Agreement:

(a) Sattva was entitled to a fee equal to the maximum amount payable pursuant to the rules and policies of the TSX Venture Exchange – section [3.3]. It is common ground that the quantum of this fee is US$1,500,000.

(b) The fee was payable in shares based on the Market Price, as defined in the Agreement, unless Sattva elected to take it in cash or a combination of cash and shares.

(c) The Market Price, as defined in the Agreement, was $0.15.

[15] He decided Georgia breached the Agreement by failing to act in good faith and honour the “best efforts” obligation the Agreement required. He found Georgia’s conduct in unilaterally obtaining TSXV approval of a finder's fee payable in cash, without trying to obtain approval for payment in shares valued at $0.15, as Sattva demanded, had rendered it less likely the TSXV would have approved payment by the latter method. He observed the TSXV had discretion in applying its policies, and concluded that if Georgia had properly conducted the approval process there was an 85% probability the TSXV would have approved payment of the finder's fee in $0.15 shares.

[16] The arbitrator calculated Sattva’s damages by converting the $1.5 million US finder’s fee to Canadian funds, and dividing that figure by $0.15, resulting in 11,459,853 shares. He found Sattva could have sold those shares in an orderly manner by the end of 2007 for gross proceeds of $0.40 to $0.44 a share, resulting in a loss of between $4,583,914 and $5,156,934. He assessed damages at 85% of the average of those amounts, producing an Award of $4,140,000.

[17] Georgia has made a cash payment of $1.5 million US (or the equivalent in Canadian dollars) to Sattva on account of the arbitrator’s award. The balance of the damage award is held in the trust account of Sattva’s solicitors pending determination of these proceedings.

Those funds were destined to sit in the trust account for four years.

Georgia sought leave to appeal the arbitrator’s award to the B.C. Supreme Court under the B.C. Commercial Arbitration Act. That Act, provides for appeals on questions of law, with leave from the court, if:

(a) the importance of the result of the arbitration to the parties justifies the intervention of the court and the determination of the point of law may prevent a miscarriage of justice,

(b) the point of law is of importance to some class or body of persons of which the applicant is a member, or

(c) the point of law is of general or public importance.

The Court found that the issue was not a question of law, but a question of fact or mixed fact and law. Even if it was purely a question of law, the court would have exercised its discretion not to grant leave, on account of Georgia’s conduct in misrepresenting the finder’s fee agreement to the TSX VE and in misrepresenting the TSX VE’s position to Sattva, when it said the exchange wouldn’t approve anything other than a cash payment (paragraph 39 of the decision).

The judge made a further observation, which is interesting in the context of the ultimate decision in the case.

[41] I would further deny leave to appeal on the principle that one of the objectives of the Act is to foster and preserve the integrity of the arbitration system. This is one of the factors mandated to be considered by a judge in exercising discretion on a leave application…

The judge went on to cite earlier decisions of the B.C. Courts, which commented that:

“Arbitration is intended to provide a speedy and final resolution of the issues. No party may appeal any aspect of an arbitration award as of right. The court retains a certain discretion … to grant or refuse leave after weighing the importance of the result of the arbitration and the point of law invoked. … After most arbitrations, one party or the other, perhaps both, will be unhappy with the result. The substantial constraints on the granting of leave to appeal play an important role in preserving the integrity of the arbitration system. If leave were granted too readily, one of the beneficial and distinguishing features of arbitration (its finality) would be lost. Elk Valley Coal Partnership v. Westshore Terminals Ltd., 2008 BCCA 154 (CanLII), quoting from Ed Bulley Ventures Ltd. v. Eton-West Construction Inc., 2002 BCSC 826 (CanLII), at para 5.

In this case, however, the Court of Appeal did not see it that way. The decision was reversed, leave to appeal was granted and the matter was sent back to the B.C. Supreme Court for consideration of the arbitration award.

Once again the B.C. Supreme Court (a different judge from the first leave application) saw no reason to change the arbitrator’s decision. Once again, the B.C. Court of Appeal disagreed.

After reviewing the facts and the arbitrator’s award in some detail, the Court of Appeal noted that: “the interpretation of the Agreement is a question of law alone, reviewable on a standard of correctness.” The Court of Appeal concluded that neither the arbitrator nor the court below had given adequate attention to the “tension” in the contract between the maximum fee allowable under the TSX VE rules and the agreement to pay the fee in shares. It concluded that the maximum value of the finder’s fee was $1.5 million, regardless of whether it was paid in cash or shares. Therefore, there was no breach of contract.

In the end, one is left with the question: “Who got it wrong, the arbitrator or the courts?”

If the goal is to give effect to the original agreement of the parties, then it seems clear that the arbitrator actually got it right. The parties agreed that the fee would be $1.5 million, payable in shares at the market value immediately before the acquisition was announced. The arbitrator found that the parties must have anticipated that the value of the shares would go up after the acquisition. Why do it, otherwise. As noted by both the arbitrator and the court, Satva was also taking the risk that the shares could go down in value. The commercial intent of the agreement could not have been simpler – or clearer.

The B. C. Supreme Court clearly understood this: finding no reviewable question of law in the first instance; then upholding the award in the second go-round.

Of course, another arbitrator faced with the same facts could have come to a different decision.

For example, one might argue that the arbitrator should not have discounted the award by 15%. He determined that this was the risk that the TSX VE would not have approved the payment, if given all the relevant information. However, having determined on a balance of probabilities that the exchange would have approved payment in lower-priced shares, perhaps he should have awarded Sattva the full value of those shares.

On the other hand, the arbitrator could have concluded that the contract was impossible of performance, as written. If the TSX VE rules would not have allowed the payment in shares at the lower price, then the arbitrator could simply have awarded payment of the finder’s fee in cash.

This is what the Court of Appeal ultimately did. But they had to take a long, winding path to get there. Because the court could not reject the arbitrator’s findings of fact, they had to come up with a question of law (contract interpretation) and completely ignore the original intent of the parties.

In the process, the parties lost all of speed and cost benefits of arbitration.

The contract was made early in 2007. The arbitration award was rendered in 2008. After two trips to the B.C. Supreme Court and Court of Appeal, the decision reversing the award was released in 2012. (Surprisingly speedy, as litigation goes, but still five years after the fact.)

And the legal costs must have eaten up much of the amount in dispute. Both parties were awarded costs at various stages along the way. Nevertheless, each of them must have borne significant unrecoverable costs.

When all is said and done, it is difficult to see what important question of law or miscarriage of justice required the courts to intervene in this case. The facts of this case are interesting and unusual, but the contract terms in dispute may never arise again.

So those who worry about the final and binding nature of arbitration awards should be careful what they wish for. They may be far worse off going to court.

For those interested in following the full saga of Creston Moly Corp. v. Sattva Capital Corp, here are links to all of the B.C. court decisions.

Round 1 – Leave to Appeal Application

British Columbia Supreme Court

British Columbia Court of Appeal

Round 2 – Appeal of Arbitration Award

British Columbia Supreme Court

British Columbia Court of Appeal

The amendments will come into force on proclamation. The government has been talking and will continue to talk with stakeholders about measures that might be useful to ensure that the change does not increase the risks of real estate fraud. (If you have suggestions about such measures, feel free to mention them here.)

The Ontario Real Estate Association was enthusiastic about the change.

It is safe to assume that the private member's bill that did the same thing, along with other changes, will not proceed.

In preparing for that presentation, I’m on the lookout for comments from courts across the country on what is expected of the self-representing litigant and conversely, what won’t be tolerated from a self-representing litigant. For example, in the recent decision in Delichte v Rogers, 2013 MBQB 93 (CanLII), the Court plainly and strongly criticized the conduct of a self-representing litigant:

[29] The attitude and behaviour that the mother brings to this litigation is troubling as it only increases the intensity of the conflict and creates an environment in which any kind of settlement discussions are impossible.

[30] It must be obvious to the mother, even as an unrepresented litigant, that the time deadlines imposed at the case management meetings for the filing of affidavits and briefs and concluding cross examinations are significant and cannot be casually disregarded on a whim. The mother must have known, or ought to have known, that the father would have already incurred significant legal costs in compliance with those deadlines when she attempted to cancel the March 1, 2013 Hearing on less than five business days notice.

[31] Somehow the mother is also oblivious to the obvious fact that by running up the father’s legal bills she is also depriving her children of potential financial resources.

[32] Moreover the mother somehow expects the court to ignore the fact that her last minute demand for an adjournment would not only have a significant financial impact on the father and the children but also on the court’s time and resources. A half day was reserved for the hearing that she demanded and that time slot was denied to other litigants and made an already backlogged list even longer.

[33] The court has a duty to administer its scarce resources wisely and cannot allow litigants to run roughshod over its own process by ignoring deadlines, the rules of court and capriciously failing to show up at scheduled hearings….

[36] Accordingly, I will not make an award of solicitor/client costs in these circumstances. I am however prepared to make an award of costs significantly higher than the tariff to send a strong message to the mother that her disregard for the rules of court and the meticulous timelines set out at the case management conferences and her unilateral decision to fail to appear at the March 1, 2013 Hearing are totally unacceptable. This kind of behaviour is simply intolerable and must be sanctioned by the court to protect the integrity of the court process and as a warning to the mother and other litigants that this kind of behaviour will have significant consequences.

What other comments about the conduct of self-represented litigants have you noted in recent Canadian decisions?

At the heart of the decision are questions of constitutionality, specifically whether these three Criminal Code provisions violate section 2 and 7 of the Charter. Both the Government of Ontario and the Government of Canada maintain that sex work is an inherently dangerous activity and that they don’t have an obligation to ensure safer laws for sex workers. The applicants, Terri Jean Bedford, Valerie Scott and Amy Lebovitch, are sex workers and former workers, arguing that the laws around sex work actively make their work more dangerous and put their lives at risk.

Our clients were sex worker advocacy groups, Prostitutes from Ottawa Gatineau Work Educate and Resist, and Maggie’s: Toronto Sex Workers Action Project, organizations that were among 8 intervener groups at the Ontario Court of Appeal. Intervener groups that ranged from Christian women lobby groups to HIV Advocacy organizations. This week the Supreme Court will hear from an even greater number of interveners including a group of purported “feminist” women’s organizations that argue that female sex workers have a false sense of consciousness and are too exploited to make their own choices.

Much as been argued, on the internet and otherwise, about these issues. We could reiterate our previous writings and post a detailed explanation of why these laws are paternalistic and redundant, how they harm sex workers and further unnecessarily criminalize members of Charter protected marginalized communities. But sex workers organizations like POWER, Maggies and Stella all say it better than we ever could.

Our fellow Slaw readers and lawyerly colleagues have probably already come to their own conclusions about the constitutionality of the Criminal Code provisions in question. But what we would like to draw attention to is the importance of a truly feminist and queer perspective when making these fundamental moral judgments about the sexuality of others. One of the key struggles of feminism is to validate women’s experiences and voices. As feminist practitioners we let my clients tell me how the law affects them and I believe them when they do. In terms of the constitutional challenge before the Supreme Court tomorrow sex workers have always been very clear: the laws don't protect them, don't deter them, and the enforcement of this provisions put their lives in danger. It is not ok for non-sex workers, including government lawyers, to advocate otherwise. Although the Supreme Court has never claimed to be a feminist institution, we hope out of all the advocates making submissions tomorrow, that the bench listens to the voices representing sex workers, and ultimately decides in favor of their knowledge and expertise.

Some people defend or trivialize it by saying that actual phone conversations and emails are not being monitored – just metadata. Metadata simply means data about data – it doesn't mean that it is innocuous or public. The phone "just metadata" being tracked is equivalent to looking at one's phone bill – numbers called, duration, etc. That definitely contains personal information which raises serious privacy issues. Reminds me of the "it's just allergies" allergy medication ads.

Another comment that is supposed to make it better is that US citizens are not being targeted by the NSA. Who is targeted doesn't change the fact that personal information on citizens is being collected and retained. And why is it somehow acceptable to spy on and violate the privacy of people in other countries?

Some ask why it is okay for Google to use knowledge it gains from searching your e-mails to sell advertising, but not okay for Google to pass it on to the government. There is a huge difference. Google serves up those ads without knowing or retaining the identity of the recipient. Privacy principles apply to contextual or behavioural advertising and contextual information (such as Google Now), and we can opt out of receiving it. Privacy obligations limit how long personal information is retained, who it can be disclosed to, and how it can be used. None of those concepts apply to NSA monitoring, and opting out is not an option. The devil is in the details when it comes to privacy, security and surveillance.

Edward Snowden, the person who leaked the information that started this, is apparently hiding in Hong Kong, and US authorities are eager to get him back to the US and charge him criminally. If he had done the same thing in certain countries in the Middle East or Asia, people in the US would be praise him as a hero and chastise the government for its retaliation against him. If those countries were doing the same surveillance as the NSA is, those in the US would demonize the state for its unacceptable assault on civil liberties and privacy.

I do not welcome the surveillance state.

Trends and Issues puts data and insight from original research commissioned by the CBA into a single document meant to provide an overview of major challenges facing the profession. The report – and the questions it raises – form a starting point for discussions and further consultations with stakeholders in the legal services industry.

We’ve been showing you bits of those papers here, and on the interim Futures website, for the last seven weeks. If you’ve been following along, the major themes should be familiar by now: globalization of business, along with a weak economy, rapidly evolving technology, empowered clients with new expectations, and competition from legal service providers both inside and outside of the industry are combining to create a huge pressure on the too-often conservative legal profession to change the way it operates.

Some members of the profession are standing their ground; some are streamlining their activities, finding internal efficiencies to meet what expert Richard Susskind calls the more-for-less challenge; and still others are seeking ways to turn the profession on its head, looking for disruptive answers that will please both clients and legal professionals.

If the research has shown anything, it’s that there is no single solution. And that could be the main reason why the profession as a whole – which in Canada is also geographically fragmented – has been slow to respond to the challenge: there are so many directions to choose from it’s hard to say which one to take. Is it declaring an end to the billable hour? Or is it allowing non-legal ownership of law firms? How about making far better use of paralegals and other non-legal professionals to do some work, while lawyers take care of the complex matters for which they’re uniquely trained?

And speaking of training – we must also turn the spotlight on the question of what lawyers of today and tomorrow need to learn, and then ask who is best placed to teach it. Law firm clients are less and less willing to shoulder the cost of training new calls, and yet lawyers young and not-so-young need to learn not only black-letter law but a number of other skills to meet evolving client expectations. How can and should that change?

And then there’s the whole question of access to justice. Access isn’t always about money, but that is an undeniably large part of the problem for many Canadians, as the CBA’s own Envisioning Equal Justice project, launched last summer at the same time as Futures, has discovered. Some of the means suggested to increase access – de-lawyering; unbundling of legal services; alternate fee arrangements; online dispute resolution; risk avoidance, etc. – are the same as those offered up as answers to Susskind’s more-for-less challenge, thereby bringing the discussion full-circle.

The answer is out there – or maybe more properly stated, the answers are out there. The Futures Initiative’s goal is to create a framework for ideas, approaches and tools to help the profession identify, understand and manage change so that Canadians are served by a relevant, vibrant and confident profession.

One of the ways we hope to achieve our goal is through the input of lawyers, legal- and non-legal professionals, clients and other stakeholders – the people living and working through the changes that are already happening. We want to facilitate a discussion about which paths to take in order to best serve the public while at the same time preserving the integrity of the profession. We want to hear about what legal professionals need – and need to do – in order to flourish in the next decade and beyond.

Our new website (www.cbafutures.org) will feature information, blogs and areas for comments. We hope anyone concerned with the future of the legal profession will stop by regularly to take part, and also engage with us on Twitter at #cbafutures.

Each Wednesday we tell you which three English-language cases and which French-language case have been the most viewed on CanLII and we give you a small sense of what the cases are about.

For the week of November 28 to December 4th:

1. Blackshear v. Canada 2013 FC 590
   

   [1] Her Majesty the Queen in right of Alberta, the Minister of Justice and Solicitor General of Alberta and the Deputy Minister of Justice of Alberta (hereinafter referred to as the Alberta Crown) seek an order to strike the Second Amended Statement of Claim under Rule 221(1) of the Federal Courts Rules (FCR), on the grounds that the pleading does not disclose a reasonable cause of action (Rule 221(1)(a)), and is scandalous, frivolous or vexatious (Rule 221(1)(c)).

2. R. v. Brumble 2013 ONCJ 308
   

   [2] In early August, 2012 a friend of Mr. Brumble’s offered, in a series of text messages, to hook Mr. Brumble up with a pretty girl with a long nose and six teeth for $1,800. She was a bit old for him, 38, but his friend said she rotated around men. It was the beginning of Mr. Brumble’s misfortune that his private communications were the object of police interception and it didn’t improve things that his code, like most codes used by gun and drug dealers, was rather transparent. The long-nosed girl with dental challenges was easily recognizable to the police as a deal for Mr. Brumble’s friend, Abadir Jimale to sell Mr. Brumble a .38 calibre revolver with six rounds of ammunition. Thus, it was not by sheer coincidence that Mr. Brumble found himself admiring his new girlfriend in the front seat of a van minutes after meeting her only to have the police crash the date and instantaneously place him in custody, where he has remained ever since.

3. Meads v. Meads 2012 ABQB 571
   

   [1] This Court has developed a new awareness and understanding of a category of vexatious litigant. As we shall see, while there is often a lack of homogeneity, and some individuals or groups have no name or special identity, they (by their own admission or by descriptions given by others) often fall into the following descriptions: Detaxers; Freemen or Freemen-on-the-Land . . .

The most-consulted French-language decision was Delisle c. R. 2013 QCCA 952

[1] Jacques Delisle se pourvoit contre un verdict de culpabilité du meurtre au premier degré de son épouse, Nicole Rainville, prononcé le 14 juin 2012 par un jury de la Cour supérieure, district de Québec, à l'issue d'un procès présidé par l'honorable Claude C. Gagnon.

Low interest rates are great if you are borrowing money, but not so great for an insurance company trying to make a profit. That might also be bad for you because it leads to higher rates. To understand why lower interest rates are bad for insurers, you need to know how these companies make a profit.

If you own a typical permanent life insurance policy (lifetime coverage) and did a straight present value calculation of the premiums you can expect to pay during your lifetime, the total will be less than the death benefit. If the insurer is not collecting enough premiums to equal your death benefit, how do they make a profit?

Part of what determines the appropriate premium amount to charge a customer is based on the insurer’s assumed rate of return on its long-term investments. Insurers are extremely careful investors and on average, approximately three quarters of their investments are in government bonds. In addition, the federal government monitors these investments to make certain that they are low risk. The problem for insurers is that these types of investments are offering extremely low rates of return when compared to recent the past.

When investment returns reduce, the premium inputs need to be increased. A permanent life insurance policy that was purchased years ago may have needed $800 per year of premium based on the interest rates at that time. Today, that same policy might need $1,200 per year. With rate guarantees preventing insurers from increasing the rates of existing policy holders, many Canadian insurers have been forced to increase the cost of new permanent life insurance purchases by up to 50%, and more increases are likely.

Another important factor in determining your insurance premium is the insurer’s assumption of how much revenue will be generated by customers that lapse their policy before a claim is paid. It’s normal for a significant percentage of policies to lapse as customers leave due to changing needs, or in favor of less expensive alternatives. However, with the cost for new purchases of permanent life insurance products rapidly increasing, fewer customers will be interested in cancelling their existing policy in favor of alternatives. The result is less lapsed policy revenue to offset claims and this leads to increased rates.

In addition to insurance rate increases, here are a few other ways you could be negatively impacted by lower interest rates:

Universal Life (UL)

A typical UL policy is a permanent life contract that gives the customer control over how part of the premiums are invested. The benefit of owning this type of policy is that you can grow the investment portion and use it to pay future premiums or to enhance the death benefit.

If you were looking at a UL policy purchase today, it’s likely that you would make very conservative assumptions about the investment returns. However, many people bought UL policies when much higher rates of return were considered realistic. For these people, today’s low rates of return are having a dramatic impact on their original assumptions. If you have an older UL policy, you’d be wise to dust it off and talk to your broker about your original assumptions.

Insurance proceeds to be used as an income for a surviving spouse

Life insurance is often used to maintain a family’s income in the event of the breadwinner’s death. This strategy typically assumes that the insurance proceeds will be invested and that most, or all of the returns will provide the insured’s survivors with an adequate income source for as long as needed.

If you bought life insurance as a way of providing an income for your family, you really need to revisit your coverage amount. Even if the policy is only a few years old, the face amount may be woefully inadequate given today’s investment realities. Know if, and how much, the current interest rate environment has affected your policy and plan accordingly.

Thinking about buying permanent life insurance?

If you’ve been thinking about buying permanent life insurance coverage, it’s time to act. There may be a few insurers that have been slower to react to the impact of lower interest rates, but that window is closing fast. The longer you wait, the more you will pay.

If you are a lawyer, you also owe it to yourself to look at the Canadian Bar Insurance Association (CBIA) Permanent Life insurance plan. I know it sounds like a plug for my employer, but this product is an incredible bargain when compared to the cost of similar policies. Although low interest rates may force a price increase in the future, existing clients are guaranteed against cancellation or future rate increases.

Like all other CBIA products, Permanent Life is available to all Canadian lawyers, their spouses and adult children as well as law firm staff. Visit barinsurance.com for more details or call 1-800-267-2242 (CBIA).

During the official recruitment period the supply of jobs will inevitably be much smaller than the demand. While firms can safely decide not to participate in the recruitment period, how many students do you know who had the courage to take that risk? As taxing as articling week is on students, it’s also onerous for firms. As such, a lot of firms opt out of recruitment week and instead plan to hire on their own schedule and on their own terms – even large and midsize firms are opting out. Many other firms don’t know what their staffing needs will be a year from now and won’t be in a position to advertise until closer to the position’s actual start date. While it can be discouraging that your job search isn’t over yet, there’s still a good supply of good positions out there. From here on applications, interviews and offers can also proceed at a far less hectic pace.

Not having an articling position also means you still have time to think about what kind of lawyer you want to be. If you went to law school with the goal of making a difference in society, how will you reflect that goal as you move forward in your job search? If you went to law school because you thought a law degree would get you a better job, what does “better” look like to you now that you’re two thirds through your degree? If you went to law school to keep your options open while you decided what to do when you grow up, what type of practice will allow you the opportunity to learn while you make up your mind?

As your search continues, keep in mind that mobility is the new reality. For many of you, finding an articling position will not be your first law job. It’s also very unlikely that it will be your last. While an articling position often comes with the prospect of longer term employment, it is still just a one year term at the outset. Looking for a job for a 12 month term rather than aiming to lock in the rest of your life might help to keep things in perspective.

The Spectator

This is not strictly a law-related matter, of course; but general research sources are worth noting and bookmarking for a possible future legal use when they are of this historical depth. And from a brief trial run I can say that it seems that the magazine has done the archiving very well indeed, with text items digitized and also made available in the original format. As well, search results can be filtered by date, key word and subject facets. Or, if you feel more like a read, you can browse the magazine by issue. The brief introduction to the archive is available here.

Every year at the Head Start program in Edmonton, we highlight the Suggested Textbooks portion of the site. With the recent redesign, I hope that we will also discuss the portion of the site called Making Good Choices: Canadian Electronic Research Sources.

I appreciate the time an effort that Catherine has put into sharing the evaluation criteria for research tools, discussing the search interfaces, comparing the case law and legislation content, and the citators. I also appreciate the search syntax comparisons:

Search syntax for Quicklaw, Westlaw and CanLII
Search syntax for Hein Online, Irwin eBrary and Folio View Infobases
Search syntax for court websites
Search syntax for BAILII and AUSTLII

The syntax charts are a nice expansion on The Joy of Wildcards posted by Susannah Tredwell in 2011.

I look forward to sharing the Best Guide to Canadian Legal Research with my new students.

The full program can be downloaded here. From that document:

Registration is available online (of course).

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

Technology

Go for a Fresh Start With a Device Reboot
Dan Pinnington

Smartphones, tablets, laptops and computers are more reliable and stable than ever before. Most of us take this for granted and we leave our devices turned on 24/7. However, that . . .

Research

New Articling Students – Legal Reseach Methods Cafe
Shaunna Mireau

Most law firms have an orientation program for articling students. I am certain that ‘legal research’ is part of the program – if not, my tip is to add it! A look back at the conference site for last weekend’s Law and Society Association conference showed a Methods Cafe as part of the program. . . .

Practice

Realizing Realization
David Bilinsky & Garry Wise

There are at least two types of realization that comes to play in the financial management of a law firm. In this context we are speaking of Billing Realization and Collection Realization. Both of these represent potential ‘leaks’ in the financial boat of the firm if the firm is not properly attentive to these numbers. . . .

Law firms have a tendency to measure effectiveness of a marketing activity by whether “we got a file from it”. This is an inaccurate measure for several reasons, the most obvious of which is that few firms record how a file came to them.

If you’re going to invest time and resources in marketing initiatives, they should enhance at least one of the four Rs—reputation, revenue, referrals, and retention. Clients choose lawyers by their reputation, so reputation enhances revenue. Clients also choose lawyers on the recommendation of another advisor, so referrals enhance revenue and reputation enhances referrals. Clients leave lawyers if the relationship doesn’t work for some reason, so fostering the relationship helps to retain them as clients.

Can you do one thing that enhances all of the four Rs at once? You can, but few law firms do.

Even the latest market research shows that few law firms are surveying their clients. At a recent LMA seminar, Elizabeth Duffy of Acritas presented the findings of their 2013 Brand Survey, noting the importance of client surveys in long-term planning. However, she added: “Some firms are yet to put any formal client feedback program in place. As a result, they continue to miss out on valuable information about clients’ future requirements and are putting themselves at an unnecessary disadvantage during difficult market conditions.”

Law firm marketing directors know that ‘client survey’ is the line item most frequently cut from budgets and meeting agendas. Lawyers tend to run for the hills if asked for the names of clients who could be surveyed. Do they think they’ll hear something bad about their handling of a client’s matter? Maybe, but that’s better than hearing nothing from the client—ever again.

A colleague told me of her firm’s first venture into client surveys. As the survey reports came in, she thought she would take a look at one or two, to get a sense of how things were going. The first report she looked at contained such detailed complaints that she took them to the responsible lawyer, who was completely floored. The marketing director insisted that they both go and see the client. They not only solved the problem, but also ended up getting additional work from the client for another of the firm’s practice areas. Had the survey not asked for her opinion, the client would simply have walked away. Had the lawyer and marketing director not informed her of the firm’s other areas of expertise, she would have taken the other work to another firm. Most importantly, had they not acted on her complaints, they would have lost all credibility with the client.

In fact, the only reason not to do surveys is if you know you won’t do anything with the findings!

So what is a client survey?

It’s an intentional seeking out of clients’ feedback for marketing purposes. It differs from the annual ‘How are we doing?’ review with a specific client base, or the routine end-of-matter survey largely by intent rather than content. A lawyer seeking feedback from a client is usually looking for ways to deepen that specific client relationship. A marketing survey looks for trends and generalizable opinions to help guide marketing decisions.

What client surveys aren’t is all about you, the law firm. They’re about the client. They help you discover client preferences, changes, and industry challenges. Properly constructed, they give you early warning of changing trends. Ask the right questions and windows of opportunity open up.

I just completed a survey for a law firm prior to revamping their website. Our specific purpose was to gauge awareness of the firm in the marketplace and characterize what attracted clients to the firm. This would guide the design and content of the website. However, we found out way more than that.

We discovered that certain of their referral sources were underutilized—a business development opportunity. We found that no one refers to the firm by its initials, which is how the firm refers to itself—time for a logo redesign. We found that clients know little to nothing about other services the firm provides—a cross-selling opportunity. And of course, all of these findings will sharpen the focus of the website and its search engine optimization.

Who, when, and why do you survey?

If conventional wisdom holds true and 80% of your business comes from 20% of your clients, survey that 20% first. When do you survey? Before making a major change or investment. Why do you survey? So that you have something more than your own assumptions to guide your decision, to take the pulse of the marketplace, and to learn more about your clients.

How do you survey?

Unquestionably, face-to-face interviews reveal the most. They aren’t easy to get with busy people, so a telephone interview ends up being the next choice. Emailed surveys are effective if the group being sampled uses email in that way (CEOs don’t) and the questions are multiple-choice. Snail-mailed surveys usually require follow-up, so you will likely end up doing a telephone survey anyhow.

Who should do the survey?

Most research professionals advocate using a neutral third party so that you get complete candour. If you have a marketing director—and you let that person have contact with clients (don’t get me started, that’s for another column)—the marketing director can do a very creditable job. However, he/she may have difficulty conveying any negative opinions back to the lawyers. A combination of marketing director and managing partner would solve that, but let’s get real: the amount of time required would mean they’d survey very few clients.

Just about the only person who shouldn’t do the survey is the lawyer who does the work. It’s too difficult for both parties to overcome reluctance to deal with sensitive areas and remain objective.

What questions do you ask?

Ah, now that’s the question! It’s tempting to pull a survey template off the internet and go from there. While this is an OK starting point, that’s all it is. If you don’t customize the questions, you will A. reduce participation in your survey and B. get very generic answers that won’t help you much. Time spent crafting the right questions will lead to much more informative answers.

I’ll end on a happy note: I’ve heard more good than bad about lawyers from surveying their clients. Some of your clients will be unhappy, but others may be happier than you think—for reasons that you’d never guess! Once you know what’s important to your client, you can act on it. One client told me that he only has time for phone calls before 8:00 am or after 7:00 pm. He’s ecstatically happy with his lawyer because they have their strategy sessions by phone at 7:00 am (or before) and then he’s good to go. He commented: “I’ll never take my business anywhere else.”

Oh, and when you hear stuff like that—get permission to use it in a testimonial.

There are no liability risks on the individual "medical detectives" (not required to be physicians) who submit diagnostic suggestions: they are anonymous and submissions are pooled and combined into diagnostic suggestions to be discussed with the patient's physician.

A quick internet search did not reveal anything similar for law. Let me try drawing on the collective wisdom of SLAW readers – are there parallels here for the legal profession?

Broadly speaking, there are two ways to go: we can, as some have urged — half provocatively, I think — learn to live in a post-privacy world. Human beings have done it before, as anyone who has lived in a village can tell you. Privacy as a legal concept is, after all, something of a late comer to the party.

Or we can learn to encrypt. This is something that lawyers, who are forbidden from village gossip, must now — as a matter of professional responsibility, I'd say — treat with all seriousness.

I know far too little about encryption to be able to say whether there's any hope of ever shielding information so securely that only an agreed-upon recipient can learn its true content. But I believe that there are techniques available to us that can make it onerous indeed for a spy to decrypt our messages. I would say that we will see a great deal of Internet attention paid to encryption in the near future.

It's started already. Slate has a piece on "How to Shield Your Calls, Chats, and Internet Browsing From Government Surveillance," mentioning among other things PGP (or "pretty good privacy") as a way to encrypt emails and Cloudfogger as a tool to encrypt files on Dropbox. I've learned that a South African company called Seecrypt offers to enable "military grade" encryption of your mobile phone calls and texts.

If you're interested in following the PRISM revelations and responses, you might look at Gigaom's tracking of the story. (Hat tip here to the Law Librarian Blog.)

LAWPRO claims experience makes it clear that lawyers don’t always accurately identify conflicts… or that sometimes they decide to be wilfully blind. Consider the following a brief primer on how to tune-up your conflict of interest avoidance systems.

There are three typical scenarios that lead to conflicts claims: failure to screen for conflicts; failure to recognize conflicts despite screening; and fooling oneself into acting, despite a conflict, due to greed or to a belief that it “won’t matter”. All three scenarios have the same potential to lead to a claim against the lawyer.

Want to steer clear? Follow these simple steps:

• When speaking with a new or potential client, record the names of all parties (both individuals and corporate parties) correctly.
• Take a moment to reflect on who, exactly, is your client. Is an individual giving you instructions on behalf of a corporation? On behalf of corporate directors? On behalf of a shareholder or shareholders of the corporation, rather than the corporation itself? Is the owner of a shared family business hiring you on her own behalf only, or on behalf of all the owners? If a couple is giving you instructions together, are you certain that their interests do not diverge? Pay attention to your instincts. Do not act until you are clear who the client is, and that there is no conflict.
• Once you fully understand who is retaining you, follow the conflict-checking procedures in place at your firm.
• If your instincts (or your systems) suggest that there may be a problem, review the situation with a trusted colleague. You may not be able to objectively assess your own conflicts.
• If a conflict emerges or comes to light after you have begun working on a matter, immediately disclose the conflict and take steps to resolve it. If you need to remove yourself from a matter, do so promptly to avoid any prejudice to the client’s interests.

Finally, be alert to activities, on the part of potential clients, that may be designed to create “tactical” conflicts. For example, some clients, particularly in communities with a limited number of lawyers, have been known to contact multiple lawyers in an attempt to make it difficult for opponents to find counsel who are free of conflicts. One way to avoid being the target of these tactics is to instruct anyone who answers the phone to use a screening form designed to collect sufficient information to identify existing conflicts, while avoiding the collection of confidential information that would create a new conflict. Where a potential client does not retain the lawyer after making this kind of contact, it can be useful to send a non-retainer letter to make it clear that no solicitor-client relationship was created.

This article is by Nora Rock, corporate writer & policy analyst at LAWPRO

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

This week the randomly selected blogs are 1. David Doorey's Law of Work  2. Youth and Work  3. Ontario Condo Law Blog  4. Slater Vecchio Connected  5. Wise Law Blog

David Doorey's Law of Work
Why Do Workers Support Policies To Weaken Labour Rights?
My colleague here at the School of HRM at York, Tony Fang, found a while back that the union wage premium in Canada is about 7.7% (see page 13), meaning that unionized workers earn that much more on average than nonunion workers. Unionized workers also receive significantly better benefits and pension plans. Since polls suggest people are very concerned about growing income inequality, it might seem logical that they would also support policies and practices that put more money into the hands of working folks. Thus, if you are a nonunion worker earning less than what a unionized worker earns, a rational response would be to say, “Why am I doing the same work for less pay, less job security, and fewer benefits? I should join a union too.” . . .

Youth and Work
Short Bus: Why is the Wynne Government Attacking Young Teachers?
[Update: here are the details of the Wynne Government's plans. I note that the plan calls for a 50% reduction in the number of B.Ed students in Ontario. I'm supportive of this aspect of the plan as the Wynne Government is stealing adopting a measure that I previously called for.] I am able to confirm that later this morning the Wynne Government will be announcing a radical shift in how teachers are trained at Ontario's universities. The announcement will centre around increasing the length of Bachelor of Education programs from one year to two years starting in 2015. Simply put, this is a terribly regressive policy lacking in any sensible public policy rationale. I've been following this issue for the better part of three years and the approach of Ontario's Government simply baffles me. Below I work through some of the underlying structural issues and expose how this announcement will be another massive blunder. . . .

Ontario Condo Law Blog
GMA Condo Alert! (Spring 2013 edition)
The spring edition of our quarterly newsletter was distributed to over 500 attendees of the bi-annual Condo Conference and Tradeshow held April 27 in Hamilton. Hats off to the Golden Horsehoe Chapter of the Canadian Condominium Institute for another great conference, jam-packed with seminars, friendly exhibitors and the latest updates on the Condo Act Review process still underway. The newsletter is now available for download (here) . . .

Slater Vecchio Connected
Hands-Free Devices Unsafe
Now that cellphone bans while driving have spread across the country, carmakers and cell-phone providers are cashing in on hands-free technology.
But a growing body of research says that talking ‘hands-free’ is not solving the problem of distracted driving on our roads. “It’s not that your hands aren’t on the wheel, it’s that your mind is not on the road,” says David Strayer, a leading researcher from the University of Utah’s Applied Cognition Laboratory.
In a recent Canadian study, researchers from the University of Alberta found that talking on a hands-free device increases the quantity and severity of driver error.

Wise Law Blog
140 Law – Legal Headlines for Friday, June 7, 2012
- Defendant said he shot lawyer to death ‘because he made our lives a misery,’ prosecutor tells jury
- US Marijuana arrest figures show ‘staggering racial bias,’ ACLU report says
- Severe rusting of ill-fated Elliot Lake mall didn't alarm engineer
- Conflicts tune-up: 5 steps to avoiding conflict of interest claims
- Group names McCarthy best Canadian law firm for women . . .
_________________________

*Randomness here is created by Random.org and its list randomizing function.

In Wright v. Wright [2013] EWCA Civ 234, the English Court of Appeal suggested that it may be time to review the rule articulated nearly a decade ago in Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576 to the effect that a court cannot order unwilling parties to participate in mediation.

The dispute in Wright involved two unrepresented businessmen who had a falling out after years of successful collaboration. The litigation had been hard-fought and protracted. The court observed that the case involved “a breakdown of trust and friendship” and observed that “mediation is the obvious way in which to explore these matters and allow the parties to move on before they cripple themselves with more debt.” The court also noted that the Ministry of Justice has rationalized recent reductions to civil legal aid on the basis that “mediation is a proper alternative which should be tried and exhausted before finally resorting to a trial of the issues.”

In fact, the parties had become “resolute litigators” and had repeatedly resisted suggestions from the trial judge that they attempt mediation. Sir Alan Ward observed for the Court of Appeal that the case typifies the difficulties now being encountered by the judiciary in dealing with self represented litigants.[1] The case demonstrates how challenging it can be “… to bring order to the chaos which litigants in person invariably – and wholly understandably – manage to create in putting forward their claims and defences…” and it also shows how very difficult it is “…to shift intransigent parties off the trial track onto the parallel track of mediation.”

The current rule was expressed in Halsey v Milton Keynes General NMS Trust as follows: “It seems to us that to oblige truly unwilling parties to refer their disputes to mediation would be to impose an unacceptable obstruction on their right of access to the court.” The Court of the Appeal suggests that in the context of the current difficulties presented by the “emasculation of legal aid” and an influx of unrepresented litigants that “perhaps some bold judge will accede to an invitation to rule on these questions so that the court can have another look at Halsey in the light of the past 10 years of developments in this field.”

Meanwhile, closer to home, on February 12, 2013 the Alberta Court of Queen’s Bench announced that it will cease enforcing mandatory dispute resolution rules “…until such time as the judicial complement of the Court and other resources permit reinstatement.” Since November 2010, litigants in Alberta’s QB have been obliged to participate in a dispute resolution process – such as mediation or judicial dispute resolution (JDR) – before their matter could be set for trial. The enormous popularity of the JDR option, which has been developing for some time in Alberta (as well as in Québec and elsewhere) has resulted in delays while litigants wait for JDR dates, with corresponding heavy demands on judicial resources. Whether this development results in more litigants opting for mediation, shifts the pressure onto the trial list or results in more resources, remains to be seen.

These developments illustrate a fundamental issue that most common law jurisdictions will need to address as they turn, increasingly, to consensual dispute resolution (“CDR”) processes like mediation and JDR in an effort to enhance access to justice in an environment of fiscal restraint. Aspects of this issue include the following considerations:

• If the justice system wishes to encourage CDR it is logical to suggest that CDR be appropriately subsidized. The courtroom is heavily subsidized by the state and meaningful support for CDR implies that it too warrants meaningful financial support;
• Where will such support come from in the current fiscal environment? The only options are an influx of new money or a reallocation of existing money from adversarial to non-adversarial processes.
• Also, which cases, notwithstanding efficiencies, should be decided by the open court process?

We suggest that while an increased investment in civil justice is doubtless overdue in most jurisdictions, it would be unwise to rely on new funding as the answer – or at least the complete answer – to this problem. In order to respond adequately to the demands of reasonable access, civil justice systems are going to have to reallocate funding to CDR. This will inevitably also involve thinking about ways of dealing with problems early on in the life of a dispute, before the conflict escalates and is in need of the more heavy hand of the “emergency room” court system. Also, it is likely time not only to think about reallocating funds from adversarial civil processes but also from the criminal courts, which – while of course important – touch the lives of fewer Canadians than do civil and family processes.

Prof. M. Jerry McHale, QC (UVIC)
Prof. Trevor Farrow (Osgoode)

____

The police used a taser on Dziekanski within seconds of their arrival, resulting in his death. The incident was captured on video by others in the airport, and raised questions nationwide over the use of police force. This lead to the Braidwood Inquiry, which concluded that tasers can cause death in people with heart irregularities.

The officers claimed that Dziekanski had acted violently, requiring the use of the taser. They stated he was swinging a stapler in an attempt to hit them, and came at the police screaming.

But the video of the incident demonstrated an entirely different type of confrontation, with Dziekanski being provided minimal time to respond to police instruction at all. An e-mail discovered in 2011 also suggested that the officers had planned to taser Dziekanski before even arriving on the scene.

Charges for perjury were laid in 2011. A media statement by the Criminal Justice Branch on May 12, 2011 said,

After a comprehensive review of the officers’ testimony, and taking into account all of the other independent evidence, he concluded that there is sufficient evidence to support a charge of perjury
against each of the Four Officers.

The perjury trial for the first officer begins tomorrow, with the other officers facing separate trials some time next year.

Summaries of selected recent cases are provided each week to Slaw by Maritime Law Book. Every Sunday we present a precis of the latest summaries, a fuller version of which can be found on MLB-Slaw Selected Case Summaries at cases.slaw.ca.

This week's summaries concern:
Sentencing and mental illness / Automobile insurance / Judges' reasons for decision / Exemplary damages for breach of contract / Insurance contract and limitation of actions :

R. v. S.J.B. 2013 ABCA 153
Criminal Law - Sentencing – Considerations on imposing sentence – Mental illness or disorder
The accused (Ms. B, 34 years old), pled guilty to manslaughter, attempted murder, and failure to provide necessities of life. The victim of the manslaughter offence was Ms. B’s 10 month old son ( a “soft smothering”, to stop his crying). Six years later, Ms. B attempted to murder her five year old son. For two hours she repeatedly impeded his breathing by suffocation or strangulation. He . . .

Jubenville v. Jubenville et al. 2013 ONCA 302
Insurance - Automobile insurance – Compulsory government schemes – Uninsured or underinsured motorist coverage – Insured defined 
The plaintiff (Ashley) was five years old when she was injured in a single vehicle motor vehicle accident while a passenger in her father’s vehicle which was uninsured. Ashley’s mother had insurance on two other vehicles. An issue arose as to whether the father’s vehicle fell within the definition of “uninsured automobile” in the mother’s standard automobile insurance policy such as to entitle Ashley . . .

Cojocaru v. British Columbia Women's Hospital and Health Center et al. 2013 SCC 30
Courts - Judges – Duties – Re reasons for decisions
The plaintiff mother was a high risk pregnancy patient. While virtually unsupervised, her uterus ruptured and her unborn plaintiff son suffered an asphyxial insult resulting in permanent brain damage (cerebral palsy). The plaintiffs brought a medical negligence action against the defendants (three doctors, a nurse and the hospital).
The British Columbia Supreme Court, in a judgment reported [2009] B.C.T.C. Uned. 494 found all five defendants liable and awarded damages of $4 . . .

Branco v. American Home Assurance Co. et al. 2013 SKQB 98
Damage Awards - Exemplary or punitive damages – Breach of contract
Branco, at age 58, developed reflex sympathetic dystrophy in his right foot after two injuries while working as a welder for the Kumtor Operating Co. in Kyrgyzstan. He had not worked since March 2000. Branco started this action in 2001. He claimed that American Home Assurance (AIG) and Zurich Life Insurance wrongfully denied him disability and medical benefits, and that Kumtor and its parent company (Cameco) breached the employment contract . . .

Boyce v. Co-Operators General Insurance Co. 2013 ONCA 298
Insurance - Multi-peril property insurance – General – Limitation period
The insured claimed that their retail store was damaged by vandals in October 2010 and filed a proof of loss in December 2010. The insurer denied coverage. The insured commenced an action against the insurer in February 2012, more than one year, but less than two years after the incident. The insurer moved for summary judgment, claiming that the action was out of time by virtue of the one year limitation . . .

R. v. Amell (D.P.) 2013 SKCA 48
Criminal Law - General principles – Rights of accused – Right to be present at trial
Douglas Amell practised naturopathy through his incorporated clinic, and was the sole director and shareholder of the corporation. His wife (Heidi) and his father (Robert) were employed by the corporation. Douglas, Heidi and Robert participated in a scheme, masterminded by Douglas, where they signed a “contract for hire” as a “natural person” and received compensation in exchange for property (their time and labour), without the . . .

I've recently returned from a trip to the Antipodes — my first. It was thoroughly enjoyable, despite a few minor obstacles, such as surviving a 14-hour flight and a 24-hour travel day, driving on the left, evading roos on the road at twilight, confronting electricity outlets that all looked like miniature cartoons of The Scream, and doing without my smartphone because of the insanely high cost of data roaming.

Oh, and struggling a bit to understand the locals.

That started on the Air New Zealand flight to Auckland, when, with ears that needed to pop, I swore I heard a flight attendant announce "Say hi to Mike," followed a moment later by "Panna cotta for Tom." Later, in Australia, I became somewhat accustomed to the local accent and even began to try to imitate it discreetly. One good place to start was the typical greeting, which, all reports of "G'day" to the contrary, was "How are you going?" Now of course it wasn't said with full articulation, anymore than Toronto is properly pronounced "Toe Ron Toe." No, it was slurred quickly in a way I couldn't get until someone explained that when he'd immigrated he'd been told to say, simply, "Air gun," with a slightly rising inflection. That worked.

In fact there's a whole method of speaking Australian based in using the mid-Atlantic pronunciation of various English words. "Let Stalk Strine" was a hilarious book published by "Afferbeck Lauder" in 1965, I think, and still available online. Here are samples of what I mean, taken from a couple of websites that have abstracted some examples, so you'll get the idea:

emma chisit? [how much is it?]
muspy summer stike [must be some mistake]
less jar soap [let's just hope]
air fridge [average]
where cheque etcher big blue wise? [where did you get your big blue eyes?]
sinny [Sidney]

Of course, there's another layer to being a linguistic local, and that is managing the slang. I wasn't in Australia long enough to master more than one or two expressions — "bottle shop" for liquor store, "grog" for booze, "schooner" which is a beer glass of a certain size (large in Queensland and medium in New South Wales), and because one must eat, "avo" for avocado, "chook" for chicken, and (mea culpa) "mackers" for McDonalds. But I think you'll enjoy looking at the (long) list of Aussie slang on the Koala Net site. Some of it isn't really unique to Australia: I've used "ankle biter," "bush," "gobsmacked," "bog standard," and "moolah," for example. But a whole lot of it is very Aussie and really funny. "Dingo's breakfast" for instance : a yawn, a leak and a good look round (i.e. no breakfast), or "Chuck a sickie" : take the day off sick from work when you're perfectly healthy.

Let me close with an example of local language confusion from another land down under — Brasil, in this case. It comes from the current Johnson column, the Economist's blog on language. It struck me as a kind of "Say hi to mike" sort of thing.

What Brazilians say(in strongly accented English, on first meeting a foreigner): Where is the book?
What foreigners hear: The confusion is impossible to describe
What Brazilians mean: Hello! You're foreign! I'm friendly!
(Explanation: For reasons lost in the mist of time, a Brazilian's very first English lesson starts with the two phrases, "Where is the book?" and "The book is on the table". So if a Brazilian says the first to you, just respond with the second and you will have made a new friend.)

In my previous article I discussed the different ways in which Change can affect us – and whether it is welcomed or it is being endured has a great deal to do with that. We know Change is inevitable and constant, so our best strategy is to prepare ourselves, in body and mind, to run the marathon that it presents.

Whether you’re running with Change or away from it, it’s going to be a long haul. An SLA article from 2002, “Coping with Change in the Workplace,”[1] sets out a few basic strategies to make the constant transitioning a little easier.

Share Your Fears / Communicate: It’s OK to talk about how you are feeling and your worries. Cocooning, ie, closing yourself off from everyone and everything in hopes that the world will forget you, will only succeed further isolating you. Those who choose to not participate and adapt get left behind. Besides, there is a very good chance that if you are having doubts, others are also. Expressing them might even help your company’s management steer the transition more effectively.

Acknowledge that change is constant: Accept the fact that Change is now a constant in our work lives. Some will say it is even good for you. It forces you out of comfortable and predictable grooves, prevents that sense of stagnancy and may even inspire new goals. We easily spend half our life at work … it can only make us better as individuals if we can squeeze some satisfaction and fulfillment from it.

Avoid bitterness, grudges and blame: A fear of Change can manifest itself in inner turmoil; that hiss in our ear telling us how ill equipped and ill prepared we are for the future. Or perhaps we think we have been treated unfairly. It becomes easy then to blame “the boss” or “the system” for failing us. But that resentment only eats away at the person fostering it. Focusing on how we have been “wronged” takes precious time and energy away from actually dealing with the situation itself. Be aware of this type of unconscious thought behavior. Change your inner dialogue: tell the doubter inside, “I’m good enough, I’m smart enough, and doggone it, people like me.”[2] You know how effective the negative voice can be, so why not make a conscious effort to be a good friend to your inner self, and be supportive.

Prepare for Change: Keep your skills current and be aware of trends in your environment or profession that could affect your career. Attend workshops and professional gatherings. If for no other reason, being in contact with your colleagues will inspire ideas and remind you of why you chose your particular path. Also it provides a chance for a break away from your daily routine. (see next point)

Take Breaks: Sometimes we can’t see the forest for the trees, and sometimes all we can see are the knotholes in the bark. One of the best coping mechanisms is to take time away. Studies show even a short walk outside, away from immediate worries can help relieve anxiety and gives your brain a chance to relax as well. If possible, you should strive for at least a 12 hour break between work days. Remember the title of this article … it’s a marathon.

And finally, Take the Long View: Change is not the goal, it is the means to an end. Try to understand why your company is choosing to endure a period of flux, loss of productivity and the possible alienation of long time employees. Outside forces, ie, clients, technology, legislation, competition, are acting like gravity on the tectonic plate that is your department / industry. You might seem like a small cog in a huge machine, but you do control your reaction to what is going on around you. Just as a company is choosing to adapt to a changing environment to survive, so must the individuals within it.

On a more personal front, these are a few of the strategies that I try to incorporate into my life as a means to counterbalance the stresses that I encounter on a daily basis:

Take care of your body: Exercise regularly and get enough sleep. While many people use yoga to help relieve the symptoms of stress, as we learned at CALL[3] just recently, anything that causes you to breathe deeply from your diaphragm releases hormones that neutralize stress, so dancing, singing, walking, or running, anything you choose to do will help. And as for sleep hygiene, a listing of the benefits of getting enough sleep is enough for another article. Luckily many have been written, and if you still believe you function better on little or no sleep, just try getting 6-8 hours every night for a week, and then do your own “Before and After”. [4]

Strive for work/life balance: Remember: it’s just work! You can keep your work worries in proportion if you don’t define yourself solely by your profession. You are more than your resume. You are a person with many and varied talents, values and abilities. Your job uses just some of your skills, and not necessarily the most important ones. But you’ll never know until you find out what else you like to do.

Develop non-work related interests: Take time to explore interests and goals that are different from and unrelated to what you do at the office. Everything in life requires balance, including your life. Constant fixation on your professional responsibilities will make them appear outsized just by the lack of context. Give yourself context: focus outward on the people in your life, not inward on your worries. Reach out to family, friends and worthy organizations. Appreciate how much there is of value in the life that surrounds you. This will go a long way towards helping you cope with the stresses of change, if only because it puts it in perspective. When there is instability in one part of your life, it helps to focus on those things that are more permanent.

Clichés abound: change is constant, change is inevitable, the only thing that doesn’t change is change, yadda yadda yadda. Why do I revel in change?? Because I get excited by learning and testing and stretching beyond my comfort levels. Because it’s the catalyst that brings forth new ideas and products. It’s because I’m passionate about what I do, providing the best possible services to my clients. And change always forces me to have a plan, a strategy to keep going forward, ensuring we remain of value to our clients. Is change always productive? That depends upon where you set the goal posts. Anything that gets us closer to being more dynamic and effective as professionals has value. Even a negative result can be a lesson. William Blake said, “Without contraries there is no progression.” The whole of human existence moves forward because of the friction caused by the different polarities that exist in life. You can be an innovator, adopter, or laggard … that, and how you prepare in life, are the only things you over which you will have control.

All of these activities will not surprise anyone.

What is less well known is that the Office of the Privacy Commissioner also funds a whole series of research initiatives. Recently, it published a compendium of results from many of these projects:

From tapping our smart phones to transfer funds, to swiping an access card to gain entry to our office, technology is seamlessly and ubiquitously woven into our everyday tasks.

And for these technological advances to make our lives a little easier, they create and have access to large amounts of data about ourselves – our contacts, our habits, our likes and dislikes.

How is our information being used to guide decisions about ourselves and the world around us? Do we know how to better protect our privacy in the modern world? What impact does technology have on our privacy?

The Office of the Privacy Commissioner’s Contributions Program funds independent cutting-edge privacy research and outreach projects aimed at generating new ideas, approaches and information about privacy in Canada. These projects not only advance the collective knowledge on issues related to privacy and surveillance; they provide real, tangible research results that Canadians can use to make smart decisions about privacy in their own lives.

The projects highlighted here represent a sample of the innovative and socially relevant independent research the Office of the Privacy Commissioner of Canada has supported through its Contributions Program since 2004.

The projects cover topics such as identity theft, parents snooping on their kids' online activities, advice to teens on how to frame their digital portrait, the protection of digital health records, and the protection of genetic information.

So I'm very proud to announce the re-launch of this website, and would like to invite everyone to drop over for a little housewarming and to see the renos! Fifteen years after it first launched, the references to CD-Rom products are long-gone, but you will be able to check out Catherine's new Canadian Legal Research Blog, the new "Step-by-step legal research process" chart, and follow updates via social media.

This was a great project to be a part of! And a big tip of the hat to Catherine Best for all the great work she continues to deliver!

Here's a screen capture of the new homepage:

Larger firms however, don’t see it that way. They still view themselves as kings of the hill with competition only coming from equal-sized outfits – much like American car companies in the early 1970’s.

When Japanese car makers started to export product to North America, the cars were inexpensive and of not the highest quality. But they found a niche in the marketplace, a niche that they then used as springboard to move up the value chain. We see the results today. Harvard Business Professor Clayton Christensen is famed for pointing out that disruption always starts at the low end of the market, where the incumbents don’t notice it or they outright ignore it. No one notices the disruptors until it’s too late, at which time they’re strong enough to kill off the incumbents.

Is there a cautionary tale here for major law firms across Canada?

The answer is “yes”.

Law firms that will be successful – and still in existence – in 2025, will have strong managing partners who take note of the disruptors (think Cognition, Conduit, Miller Titerle, Skye Law, Anticipate Law, Wise Law and many others) and the fact that many of these upstarts rejected big firm ways of practice. While these firms are small now, they are chipping away at large firm work by being savvy enough to see the delivery of legal services in a new light, unencumbered by, as one upstart called them, “the barnacles of large law firm practices.” These new players are to large law firms what Japanese car makers were to American car makers in the early 1970’s. Add better technology and lower cost third party service providers to these upstarts and the playing field becomes very different.

In other words, it's a mistake to look for the one “big thing” that’s going to change the profession; it's better to follow the words of Cisco Systems:

What if the next big thing, isn’t a thing at all? It’s lots of things, all waking up.