Ken Adams has a post up today over at his blog AdamsDrafting in which he explores a disagreement he has with a couple of Calgary lawyers about an aspect of how to draft a duty in a commercial agreement. At the core of the dispute are the meaning and utility of the phrase “best efforts,” and whether or not it imposes a higher obligation than “reasonable efforts.”

Jane Sidnell and Christopher Knight, of Fraser Milner Casgrain’s Calgary office opine in a newsletter [PDF] that “best efforts” is a more onerous standard, while Adams argues that notwithstanding some case law “any . . . [more]

On May 31st the Newfoundland and Labrador Court of Appeal issued a judgement with a number of broad statements about the proportionality principle and how it ought to be applied by courts in crafting discretionary orders under civil rules.

The underlying matter was about a motor vehicle claim and a list of broadly framed interrogatories served by a defendant immediately after the close of pleadings. The defendant argued that the interrogatories were necessary because the statement of claim requested general and special damages without any real degree of particularity. It also argued that the applicable court rules did not require . . . [more]

WIPO creates a free online resource to access data on patents, copyright, trademarks and other aspects of IP from around the globe.

As you know, the federal government last week introduced Bill C-29 to amend the privacy provisions of the Personal Information Protection and Electronic Documents Act (PIPEDA). In this note I want to mention the breach notification rules. Essentially, a person with control of personal information will have to report to the Privacy Commissioner of Canada any ‘material breach’ of confidentiality, and notify affected individuals if ‘it is reasonable to conclude’ that the breach creates ‘a real risk of significant harm’.

The Commissioner is given no express power to order a data holder to notify if the data holder has chosen . . . [more]

It was recently reported that Passport Canada has issued 25,000 biometric passports, and plans to issue them to all Canadians by 2011. The government is introducing e-passports to enhance security, fight fraud, reduce identity theft and meet international counter-terrorism measures already in use in travel documents in over 60 countries, including the United States, the European Union, Australia and Israel. The e-passport will now be valid for a period of 10 years (thank you!—that’s an improvement at least).

A biometric passport has a data chip inside it that can be read electronically. The chip contains information about the holder’s face—such . . . [more]

I recently pointed to an Ontario study showing that up to a third of residents face legal problems, and the majority of those problems are in family law. The study also looked to Internet resources as part of the solution for self-represented litigants who cannot afford counsel.

There’s a new show being launched featuring a sitting Ontario Family Court judge called Family Matters with Harvey Brownstone. Justice Brownstone is well known in Canada for his public speaking, which includes almost every law school in the country, and his book on family law, Tug-of-War.

With the new show he’s . . . [more]

Bill C-32, introduced today into the Canadian House of Commons, is being called the Copyright Modernization Act. The government has set up a site called Balanced Copyright. On the site are fact sheets, FAQs, a news release and a backgrounder. A copy of the bill at first reading was posted later in the day on the Parliament of Canada site. . . . [more]

HeinOnline is now offering an add-on subscription for archival Canadian and Australian legislation with the following scope:

Acts of the Parliament of the Commonwealth of Australia, 1901-2008

Acts of the Parliament of Canada, 1792-2007

We are in the process of subscribing so I have not been able to test the feature of being able to search across the full text of all Acts or to narrow the search to a specific year or just the Tables or Tables of Contents. Presumably it is also browsable.

With this content, and with the likely future content of other Canadian legislative material being . . . [more]

The new copyright bill is expected today. There has been much anticipation about what it might contain. That is understandable given that several failed and controversial attempts have been made to pass a reform bill over the last few years. And that there were extensive hearings around the prior bill last summer that attracted a significant amount of commentary. And that digital media is considered by many (e.g. the Canada 3.0 initiative) to be a crucial part of the economic future of Canada.

The anti-spam and privacy bills introduced last week are important bills that have effect on business and . . . [more]

Last weekend I finally got down to perusing David Wotherspoon and Alex Cameron’s Electronic Evidence and E-Discovery, recently published by LexisNexis. It looks like a great book, but thanks to David and Alex I’m just writing to pass on some useful case citations that deal with the extent to which a court will examine the reasonableness of a record retention rule.

First, in Ontario v. Johnson Controls Ltd., 2002 CanLII 14053 (ON S.C.), Cameron J. of the Ontario Superior Court of Justice said:

There is no evidence of any document retention or destruction policy. A policy with

. . . [more]

English accountants are seeking equivalent of solicitor-client privilege. Should they get it?

The proposed New Reconciliation and Recognition Act by the British Columbia government failed in 2009, largely due to the withdrawal of support by 1st Nations leaders. Vic Burstall, a retired lawyer in Victoria, outlines the developments today in the Times Colonist.

According to the province, the legislation was intended to:

• increase partnerships and bring certainty to the land base in B.C.;
• establish a flexible framework to avoid the costly and lengthy litigation that has too often characterized relations with First Nations in the past;
• ensure constitutional or common law on rights and title remain unchanged;
• not affect Crown-granted

. . . [more]