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Archive for July, 2013

Civility Is an Innate Part of Our Biology

Though many of us lament the problem of incivility in the legal profession, there are some who easily concede it is a natural part of the adversarial nature of law. They may go even further, citing the competitive exclusion principle in evolutionary biology as an explanation for why such behaviour is actually a norm for society, generally.

Newer research by Martin A. Nowak of Harvard University may put those assumptions into question, and may even suggest that treating each other with civility and cooperating with one another is actually our “natural” instinct. For decades some theorists have explained this as . . . [more]

Posted in: Practice of Law

Summaries Sunday: Maritime Law Book

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

This week's summaries concern: Resulting trusts / Costs where self-represented litigant / Property of bankrupt / Relevance of alcohol on sentencing:
Posted in: Summaries Sunday

Electronic Real Estate Transactions (More …)

At the end of my previous post on the application of the E-Commerce Act to land transactions, I mentioned ‘measures that might be useful to ensure that the change does not increase the risk of real estate fraud’. (None of this affects the *registration* of land transfers by electronic means.)

I have recently had drawn to my attention a set of technical specification for electronic signatures in land transactions adopted by OACIQ, the Quebec governing body for real estate brokers (the equivalent of the Real Estate Council in Ontario and some other jurisdictions). These are very detailed, though in principle . . . [more]

Posted in: Substantive Law: Legislation, Technology, ulc_ecomm_list

Facts on Google Glass and Privacy

We’ve touched on Google Glass a few times at Slaw; and today I’d like to extend that conversation by highlighting a great article by Matt McGee over on Marketing Land: The Google Glass Privacy Debate: What’s Real & What’s Overblown Hype.

While Glass isn’t yet available in Canada (though it is nice to see our Privacy Commissioner quizzing Google early), I thought McGee did an excellent job clarifying some of the technological facts surrounding the product. Here are a few notable clips:

  • “Photos and videos done with Glass aren’t uploaded publicly to the web, despite what some would
. . . [more]
Posted in: Technology: Internet

The Meaning of Wallace – a Summary of Its Key Holdings

Returning to this morning’s decision, in Canadian National Railway Co. v. McKercher LLP, which we gave the headline for in an earlier post, I thought it would be helpful to boil down the judgment, into twelve paragraphs, largely using the court’s own words:

1. The Bright Line rule has been confirmed – the court was not prepared to overrule Neil and Strother. So a law firm cannot accept a retainer to act against a current client on a matter unrelated to the client’s existing files. The fact that the Wallace and CN retainers were legally and . . . [more]

Posted in: Substantive Law: Judicial Decisions

Is Discrimination on the Basis of Citizenship Legitimate?

Recently, a private member’s bill was introduced to “remove citizenship” from terrorists, while the Canadian Collegiate Athletic Association added further restrictions to the ability of non Canadians to play varsity sports. At the same time, the City of Toronto voted to extend the right to vote to permanent residents, as opposed to restricting it to “citizens”. Are we witnessing the articulation of different conceptions of citizenship? If so, which one is appropriate, legitimate or even moral?

The private member’s bill is grounded in the belief that citizenship is a privilege that can be withdrawn by a State, unhappy with the . . . [more]

Posted in: Justice Issues

Bright Line Rule Remains the Standard for Canadian Conflicts of Interest Law

This morning, the Supreme Court of Canada handed down its fourth significant decision on conflicts of interest, the scope of duties of loyalty, and the appropriate division of responsibility between courts and law societies as regulators of professional conduct. It rejected arguments for liberalizing the so-called bright-line rule, but clarified its operation.

The case reopened the “bright-line rule” and the so-called “professional litigant exception, ” formulated by former Justice Ian Binnie in R. v. Neil, and re-affirmed in Strother v. 3464920 Canada Inc. It provides:

… a lawyer may not represent one client whose interests are directly adverse

. . . [more]
Posted in: Justice Issues, Practice of Law: Practice Management, Substantive Law: Judicial Decisions

The Friday Fillip: Mitchell and Webb

English comedy has made a good name for itself this side of the Atlantic. But good as the shows we get here are, there are comedy acts as good that never really make it out of Britain, in part because of the BBC’s decision to restrict much of their programming to the island whose inhabitants pay the fees and taxes that support the broadcaster. This goes part way to explaining how I had never heard of Mitchell and Webb, a comedy duo who have a couple of popular BBC TV shows to their credit (and who, incidentally, began their . . . [more]

Posted in: The Friday Fillip

It Was the Best of (The) Times, It Was …

Speaking of newspapers and revolutions, the legal profession has a lot to learn from the much more mature Media Industry revolution. The legal revolution is really only just starting, but started it has. The first lesson is that it is really a Legal Industry, and that the legal profession is a shrinking part of it. Think printed newspapers. They are both being consulted less in their traditional form – it’s a convenience thing. Printed newspapers are headed towards weekends-only editions; the last step before digital only.

People have no time for long newspaper articles in their daily lives, and less . . . [more]

Posted in: Legal Technology

Savour the Flavor of Victory: FLAVOR SAVER Decision Confirms Trade-Mark Use When Flyers Advertising Goods Are Used in Online Ordering

The Internet has changed how distributors and consumers purchase goods, and those who purchase goods for multi-level marketing from companies such as Tupperware are no exception. A recent decision Federal Court decision involving the manufacturer of Tupperware, Dart Industries Inc. v. Baker & McKenzie LLP, considered whether trade-mark use occurred when goods are purchased online using flyers. The Dart decision also provides important lessons on preparing trade-mark use evidence, especially from goods and services are purchased online.


Dart owns Canadian trade-mark registration No. TMA145,567 FLAVOR SAVER for plastic household containers and lids. Baker& McKenzie initiated proceedings under section . . . [more]

Posted in: Intellectual Property

Gender-Identity Complaint and Our Administrative Setup

Last week Tomee Sojourner, who happens to be a lesbian, filed a complaint of bias against the judge who had presided over a hearing at the Québec Rental Board of a complaint by Ms Sojourner’s landlord. In the words of the news release on the website of Montreal’s Center for Research-Action on Race (Ms Sojourner is Black):

According to her complaint with the Council, the presiding judge, Luce De Palma, repeatedly referred to her as a man (by calling her “il”, “lui” et “monsieur Sojourner”), despite being reminded by Ms. Sojourner and the landlord’s representative that she is a woman.

. . . [more]
Posted in: Justice Issues, Miscellaneous, Substantive Law

Quebec Bar Association Wants the Right to Automatically Suspend Lawyers Facing Criminal Charges

The Quebec Bar Association (the Barreau du Québec) is seeking the legal right to automatically suspend lawyers facing serious criminal charges in connection with the exercise of their profession. The barreau expects to draft a Bill in conjunction with Quebec’s Office of Professions for the government to introduce in the legislature in 2014. The move is a response to the events of May 9, 2013, which saw three lawyers arrested and charged by the anti-corruption unit. These lawyers are under investigation for professional misconduct by the Syndic of the Quebec Bar Association (the bar’s disciplinary board).
Posted in: Practice of Law, Practice of Law: Future of Practice, Practice of Law: Practice Management