A quote famously attributed to then FBI Director, Robert Mueller, in March 2012 advised that: “There are only two types of companies: those that have been hacked, and those that will be”.

With the rapid increase in the current plague of cyber attacks, a key issue for regulators continues to be the protection of critical infrastructure. In recent years, various US regulatory agencies have established (and periodically update) standards to improve the ability to detect, mitigate and respond to the increasing cyber security threats to critical infrastructure. Canadian regulatory agencies and industry participants, particularly in sectors where there are cross . . . [more]

Who gets to participate in making the rules that affect them, and to what degree? This is a fundamental question in Canada (Governor General in Council) v. Mikisew Cree First Nation, 2016 FCA 311 (“MCFN”), an appeal of a judicial review proceeding. In MCFN, the core question is whether indigenous groups in Canada entitled to a role in drafting legislation that affects their treaty rights.

This case is unique in Canadian jurisprudence. Until now, cases regarding the duty to consult have been about the obligation to consult indigenous peoples in the course of making a regulatory decision. MCFN is . . . [more]

I was speaking with someone the other day about whether and to what extent there were any ethical implications of lawyers’ use of artificial intelligence.

Those implications could theoretically range from minimum application (in what situations is it effectively malpractice not to use AI) to maximum application (where does a lawyer’s use of AI cross the line by substituting algorithmic outcomes for human judgment). It was all very interesting, and I plan to touch on some of these topics when I join a panel on March 2 in Toronto at the Canadian Bar Association-Federation of Law Societies of Canada Ethics . . . [more]

The forced resignation of Patrick Brown as leader of the Ontario Conservatives raises concerns of fairness and due process – for him and for the women accusing him. Christie Blatchford has castigated the party and other public officials for abandoning the “presumption of innocence”, and has highlighted the wrong of ruining a man’s reputation based on anonymous allegations. Others agree. Conversely, the Prime Minister reportedly said that women who made allegations of misconduct “must be believed” and Ontario Premier Kathleen Wynne has said “I believe victims when they come forward”.

Both those responses strike me as fundamentally deficient. Deficient . . . [more]

Third party litigation funding is growing in Canada and starting to appear in commercial arbitration as well. This raises some interesting questions about an arbitration tribunal’s authority to allow (or refuse to allow) third party funding and, if it is permitted, the degree to which the tribunal should control the funder’s involvement in the arbitration.

To date, in Canada, most court decisions regarding third party funding have involved class actions. This is partly because the cost of large class actions has grown beyond the capacity of plaintiffs’ counsel to self-fund them and partly because the courts have an inherent jurisdiction . . . [more]

Back in 2014, I wrote about cycling being the new golf as a means of business development. It was something I had been thinking about for a number of years and still believe there is merit. With cycling, you may spend a day or two riding with like-minded people during an event and potentially a number of other days on training rides. That is a lot of face time (lycra time?). With a round of golf, you may spend half a day together once a year. Cycling provides plenty of time to get to know someone and their business.

The . . . [more]

“When, not if.” This mantra among cybersecurity experts recognizes the ever-increasing incidence of data breaches. In an address at a major information se­curity conference in 2012, then-director of the Federal Bureau of Investigation (FBI) Robert Mueller put it this way: “I am convinced that there are only two types of companies: those that have been hacked and those that will be. And even they are converging into one category: companies that have been hacked and will be hacked again.”

Mueller’s observation is true for at­torneys and law firms as well as small businesses through Fortune 500 companies. There have . . . [more]

Only “fair and reasonable” fees and disbursements can be charged by lawyers to their clients. This rule is uncontroversial, and applies across the country. Nevertheless, the following billing practices are used by some Canadian firms, and not clearly forbidden by regulation:[1]

• a retainer contract lists current hourly rates but also provides that the firm can increase those rates as much as it wants, at any point in the future without the client’s further consent
• a retainer can also allow a firm to both charge for each hour docketed, and charge the client whatever bonus the firm decides is appropriate

Most businesses – especially law firms – must market to some degree. And they do. They have a website. They print business cards. They make sure the logo is used on tombstone ads and sponsorship programs. So law firms spend some money on marketing, and some of their lawyers even spend time on marketing – taking people to lunch, playing golf, attending a board or trade function, perhaps hosting a client seminar. Year in, year out it’s pretty much the same. They base their marketing spend on what they spent last year (perhaps with a bit of a bump). They . . . [more]

China is making slow but steady progress toward what western countries consider to be judicial independence (see authorities listed below). I asked a judge in Beijing (my wife assisting as interpreter) his views of the judiciary’s state of independence. He said that they have considerable independence but some cases involve other authorities.

Paralleling that, but apparently at a faster pace is the liberalization as to what is permitted in modern art. A few years ago we went to the 798 Photo Gallery of modern art in Beijing’s fashionable 798 Art Zone, located in Dashanzi, Chaoyang District of Beijing . . . [more]

The New Year is a great time to re-assess old legal research tools and review new ones, so here’s a look at some of the additions to and changes in international legal information resources in the past couple of years.

New resources include the Max Planck Encyclopedia of Comparative Constitutional Law (MPECCOL), Elgar encyclopedias on private international law and on international economic law, and Oxford International Organizations (OXIO)(freely accessible until July 2018). Also forthcoming from Oxford is the Max Planck Encyclopedia of International Procedural Law (MPEiPro).

HeinOnline’s foreign, comparative and international law (FCIL) content was enriched by the additions of . . . [more]

Alongside the traditional forms of registerable intellectual property managed by intellectual property offices, patents, trademarks, copyright and industrial designs (and integrated circuit topographies), one of the most valuable forms of intellectual property for many businesses is trade secrets.

Trade secrets encompass almost anything of a confidential nature that can provide a competitive advantage. Trade secrets include know how, processes, customer/supplier lists, formulas, processes and methods. Trade secrets are not registered with any government authorities but can be maintained indefinitely.

To be preserved, trade secrets have to be kept confidential, This is typically done through a combination of physical, technological and . . . [more]