We were lucky enough to travel in England and Wales in early October. We travelled by plane, train, tube, bus and taxi (in addition to miles of walking). At the train station in Bath we picked up a copy of “Metro” – a tabloid type newspaper similar, perhaps, to Vancouver’s “24 Hours”. An article caught my eye: “Tough sentences…baffling lingo of courts explained”. An experienced (unnamed) barrister apparently believes that the jargon in the English criminal courtroom is so confusing (even law students cannot understand it) that he penned a colourfully worded dictionary to translate certain well-used phrases. Each phrase . . . [more]

This article is about the poorly drafted proposed 2^nd edition of a National Standard of Canada, which the Evidence Acts make necessary for discovery and admissibility proceedings concerning the use of electronic records as evidence. The admissibility of an electronic record requires proof of its records management “system integrity”; e.g.: Canada Evidence Act (CEA) s. 31.2(1)(a); and, Ontario Evidence Act (OEA) s. 34.1(5),(5.1). As shown by the case law, that is ignored, which is a failure to acknowledge the fundamental nature of an electronic record. Like a drop of water in a pool of water, it is dependent . . . [more]

We all want to be the reasonable person. It’s a figment of the legal imagination but it’s a nice middle ground. Lawyers can protect their client confidential and private information using encryption and securing it with a strong password. At what point is a lawyer not longer acting reasonably when they don’t?

How Do I Get Encrypted?

Since the early 2000s, we have had free full disk encryption software (TrueCrypt) and password managers (KeePass). Cost has not been an obstacle, although you might have needed some technical chops to use them. Then Apple and Microsoft put full disk encryption in . . . [more]

Fall has arrived again and I have migrated back to Washington, DC. I had read that Dr. James Billington, the Librarian of Congress, retired at the end of September and that David Mao, former Law Librarian of Congress, was appointed as Acting Librarian of Congress. Mao shared his vision for the Library of Congress in this online interview.

When I checked back in at the Law Library of Congress, I learned that Roberta Shaffer, former Law Librarian of Congress before David Mao, was back as the Acting Law Librarian of Congress. I know the Library and Law Library . . . [more]

Eons ago, I wrote one measly post on Slaw (for a 2008 legal tech article, it aged surprisingly well!) and since then have not posted here for seven years, while remaining a regular (but silent) reader.

As the new CanLII CEO, I was offered the chance to end this long hiatus and contribute again to Slaw. I was happy to oblige.

***

Let’s jump back in time:

At the time of my last contribution to Slaw, I was a very opinionated web user and thought that Internet Explorer 6 was the most evil thing that ever happened… to computers at . . . [more]

One of the cornerstones of building your profile as a lawyer is to give presentations—to client groups, referral sources, and other lawyers. The objective is to showcase your expertise, alert your audience to problems they may not know they could have (and that you can solve), and ultimately bring in new business. So the impression you make when you speak has a direct bearing on future business. However, in their haste to showcase their expertise, many lawyers end up making a very poor impression.

Any communication, whether it’s an argument presented to a judge, a talk to a trade association, . . . [more]

It’s been a fun stretch at my marketing agency of late. We’re busy, and the new business and new clients coming in are more consistently “the right fit” for our team and our talents. One intake route for that new business has been the contact form on our agency website. When new business inquiries come through this channel, a couple of really good things happen from my perspective as a business owner.

First, although our contact form has only five simple fields (name, email, company name, company website url, message), even that limited data set frequently provides us a pretty . . . [more]

The following national problem should be part of every party’s federal election platform: the majority of the population cannot afford legal services at a reasonable cost—the legal advice of a lawyer is not affordable.

This is the most serious and damaging problem that Canada’s justice system and the legal profession have ever faced.

The abundant in-depth analytical literature provides this definition of the problem: “The majority of the population cannot obtain legal services at reasonable cost.” Or, the legal profession has priced itself beyond the majority of the population.

It is a problem caused by the obsolescence of the . . . [more]

While comparative advertising is common Canada, that does not mean that Canadian laws allow a “free for all” approach. Competitors who feel that their business has been hurt by a comparative advertisement can complain to the appropriate regulator (e.g. the Competition Bureau, Health Canada, the Canadian Food and Inspection Agency), file a trade dispute with Advertising Standards Canada, or initiate a lawsuit in the appropriate Canadian court. The legal and public relations consequences can be significant.

The Canadian case law on comparative advertising is often complex, contradictory and should be examined carefully when reviewing a proposed comparative advertising concept before . . . [more]

Will the National Energy Board (“NEB”) listen to evidence about climate change when deciding whether to permit an oil pipeline? No, no, and no.

The federal Conservatives have dramatically narrowed Canada’s environmental laws, in a concerted effort to force through approval of oil pipelines, to get Alberta’s bitumen to international markets. They did this through the infamous Omnibus Bills, especially C-38[1] in 2012. Among these changes were amendments to the National Energy Board Act[2] (the “NEB Act”), to limit public participation in NEB hearings. Now, Canadian courts have rejected constitutional challenges to these amendments.

Who will the NEB . . . [more]

Supreme Court of Canada Chief Justice Beverley McLachlin’s keynote address to the Canadian Bar Association’s 2015 Annual Meeting this summer looked at “The Legal Profession in the 21^st Century”. (Thanks to Malcom Mercer for posting the text of the Chief Justice’s address — and for the additional insights in his recent Slaw column “Innovate or be Innovated?”)

The Chief Justice talks about many challenges facing the legal profession today. She also talks about the challenge of access to justice. But, sadly, she gives little thought to the role of alternatives to court in addressing either of those challenges. . . . [more]

As Canada begins to settle in with the new “notice and notice” provisions under the Copyright Act (Canada) which came into force January 2, 2015 copyright owners in Canada still need to address infringing content posted on websites hosted in the United States.

Lenz v. Universal Music Corp., Nos. 13-16106, 13-16107, 2015 WL 5315388 (9^th Circuit Sept. 14, 2015) adds additional work by a copyright owner before they can use the US notice and takedown remedy.

Background

In the 1990s the debate was whether internet intermediaries, such as ISPs, should be liable for infringements made on their servers . . . [more]