In theory, Canadians are pretty comfortable with the polluter pay principle, at least when it applies to other people. (We do not seem to feel the same way about carbon taxes.) In theory, the polluter-pay principle ensures that polluters, rather than the public or the immediate victims of pollution, bear the cost of repairing damage done to the natural environment.

As described by the Supreme Court of Canada in Imperial Oil Ltd. v. Quebec (Minister of the Environment):

In fact, that principle has become firmly entrenched in environmental law in Canada. It is found in almost all federal and

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 . . . [more]

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 . . . [more]

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 . . . [more]

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 . . . [more]

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 . . . [more]

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 . . . [more]

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 . . . [more]

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 . . . [more]

In the Canadian legal press, England and Wales is often presented as something of a regulatory boogieman. We are continually warned that, if we don’t shape up, we will lose the ability to self-regulate, just like those poor English lawyers! An equally strong undercurrent of anxiety percolates around English forays into non-lawyer ownership of law firms. References to “floodgates” and “earthquakes” abound; our calm Canadian sensibilities are aflutter. For a population that so often asserts itself as “not-American”, it seems like a new rallying cry has taken hold for many in the legal profession: anything but England!

Often lost in . . . [more]

By the time this column is posted, UNCITRAL’s Working Group III, the group charged with the drafting of procedural rules for business-to-consumer online dispute resolution (ODR) services, will be meeting in New-York city for its 27^th session, the 6^th session dealing with the drafting of said rules (previous sessions dealt with transport and shipping legislation). Ourselves, and others (mainly John Gregory), have reported and commented on these rules on multiple prior occasions, but as time goes on, the major question surrounding said rules is less and less “what should they say”, and more and more “why bother”. At . . . [more]

Mark the commercial litigator was constantly writing down his bills because of his “leave no stone unturned” approach to research and preparation of his files.

Krista was always late with her time entry. She would hold off releasing it until the very last minute for fear of missing some small detail.

Trent has a desk piled high with filing because he is always waiting for the right time to tackle it all in one go.

What do Mark, Krista, and Trent have in common? They are all perfectionists.

I had a good discussion today about perfectionism with Derek LaCroix, QC, . . . [more]