This year’s award goes to Ahsan Mirza, Senior Contributing Editor (2009-10), at theCourt.ca

Ahsan Mirza recently completed his J.D. from Osgoode Hall Law School (2010). He is the recipient of the Osgoode Student Honours Award, the F.W. Minkler Prize for Integrity and Scholarship, and the Osgoode Hall Law Journal Prize.

During his final year, he was a Senior Contributing Editor at www.theCourt.ca where he wrote on a number of relevant legal issues and developments in the form of general commentary and more specific SCC case comments.

Besides working for theCourt.ca, Ahsan was also Managing Editor at the Osgoode Hall Law Journal which became one of Canada’s only Open Access Law Journals under his leadership. Ahsan was also the founding President of the Muslim Law Students Association. He revived this student club which had extinguished several years earlier to create a social network for muslim law students and to bridge any gaps between muslims and non-muslims at Osgoode. Notably, he co-wrote an article in the Toronto Star with his counterpart at the Jewish Law Students Association, advocating cooperation and dialogue as opposed to the chest-thumping and fist-pumping common at YorkU during Israel Apartheid Week.

Prior to law school, Ahsan studied Political Science and Economics at Carleton University in Ottawa. He was awarded the Senate Medal for Academic Achievement and the Millennium Excellence Award for Leadership. Ahsan is the co-founder of the International Policy Forum.

Ahsan is currently articling at the Toronto offices of McMillan LLP.

Commentator for LawisCool.com: Omar Ha-Redeye, Juris Doctor, University of Western Ontario; founding contributor of LawisCool.com

Commetator for TheCourt.ca: James Yap, Juris Doctor, Osgoode Hall Law School, York University; former Senior Contributing Editor, TheCourt.ca.

The Facts

Copper Mesa Mining Corporation is a Canadian company based in British Columbia who planned through one of its subsidiaries to build an open pit copper mine in the Intag cloud forest just south-west of The Cotacachi Cayapas Ecological Reserve, an area of the Andes Mountains of Ecuador. The company is listed on the Toronto Stock Exchange (TSX), but it does not have significant assets or operations in the province of Ontario aside from two of its non-management directors residing in the province.

The Plaintiffs in the case are local activists in Ecuador who have opposed the mine, on the grounds that it will create major deforestation and desertification in the area and threaten more than a dozen animals with extinction. They allege that Copper Mesa through its agents used armed assaults and death threats to intimidate the local activists. Due to a perceived inability to hold Copper Mesa accountable in their country, the Plaintiffs brought a suit in Ontario against Copper Mesa, its directors, and the TSX.

The most novel aspect of the suit is the claim against the TSX for approving and listing Copper Mesa on the exchange, resulting in an influx of capital that would allegedly be used for further intimidation and violence against opponents. Local politicians in Ecuador and environmental supporters in Canada had brought the human rights allegations to the attention of the TSX before its listing. Further, the final prospectus filed by Copper Mesa’s subsidiary to the TSX acknowledge the existence of the conflict,

“[t]ensions surrounding potential exploration and mining work on the Junin property have risen, creating the potential of further escalating violence unless steps are taken to diffuse the situation,” and goes on to report a specific incident in which members of an “anti-mining group” felt “threatened”;

The liability, according to the Plaintiffs, flows from the failure to take any steps to avoid the violence, and that the Defendants knew or ought to have known that violence would ensue if the Copper Mesa subsidiary was financed through the TSX, and should have taken measures to ensure funds raised were not used for improper purposes.  The project was highly dependent on funding from the TSX, with over 80% of the US$26.7 million raised by the Copper Mesa subsidiary raised on the TSX alone. According to the Plaintiffs, it was a brokered private placement of shares approved by the TSX that raised US$4.5 million that allowed Copper Mesa to hire the private security forces allegedly responsible for the armed assaults that form the basis of the claim.

The TSX is considered a specialized exchange for mining, and over 60% of the world’s mining companies are listed on the TSX and related exchanges.

The Decision

This comment will only deal with the claim against the TSX, which is the more novel aspect of this litigation. Campbell J. began by enunciating the governing test, which is that laid out in Anns v. Merton London Borough Council, [1978] A.C. 728. Under that well-established test, the requirements for a duty of care owed by the defendant are the twin criteria of proximity and foreseeability. With respect to the former, Campbell J. concluded that there is simply “no connection between the Plaintiffs and the TSX Defendants.” Likening the TSX to a “voluntary regulator,” he reasoned that such an entity could not be found liable in tort for the adequacy of its regulatory activities. As for foreseeability, Campbell J. reasoned that “[i]n order to foresee [the alleged] harm, the TSX Defendants would have had to foresee political and business events in Ecuador which allegedly led to unlawful conduct by agents of Copper Mesa. Such a chain of events was not foreseeable or reasonably foreseeable.”

LawisCool.com (Omar Ha-Redeye):

I agree with the decision rendered by Campell J. in striking the action on a Rule 21 motion. To be clear, the grievances of the Plaintiffs are real and decidedly unfortunate. But sympathies alone cannot guide the actions of a court.

Rule 21 of the Ontario Rules of Civil Procedure, R.R.O. 1990, Reg. 194, states,

RULE 21 DETERMINATION OF AN ISSUE BEFORE TRIAL

WHERE AVAILABLE
To Any Party on a Question of Law
21.01 (1)  A party may move before a judge,
(a) for the determination, before trial, of a question of law raised by a pleading in an action where the determination of the question may dispose of all or part of the action, substantially shorten the trial or result in a substantial saving of costs; or
(b) to strike out a pleading on the ground that it discloses no reasonable cause of action or defence, and the judge may make an order or grant judgment accordingly.
[emphasis added]

The Plaintiffs have based their opposition to the motion largely on the basis of R. 21.01(1)(b), that there is no reasonable cause of action. They correctly invoke Hunt v. Carey Canada Inc. in para. 27 of their Responding Factum, and state that the novelty of a cause of action should not by itself result in it being struck.

But it’s not just the question of novelty of the cause against the TSX that provides a basis for striking the cause. There are significant questions of proximity that can be put to question here, and the Plaintiffs assertion of an existing duty of care to individuals from an entirely different jurisdiction where the TSX has very limited direct influence is suspect. As noted in the facts, it was the inability of the Plaintiffs to hold Copper Mesa accountable in their country that resulted in the proceedings being issued in Ontario. Although corruption, intimidation, violence and environmental harm are all regrettable, again, the courts cannot be led by sympathies alone.

As Campell J. indicates in para. 38, the TSX is governed by the Securities Act, R.S.O. 1990, c. S.5. There is no ambiguity about the purpose of the Act,

Purposes of Act
1.1 The purposes of this Act are,
(a) to provide protection to investors from unfair, improper or fraudulent practices; and
(b) to foster fair and efficient capital markets and confidence in capital markets.
[emphasis added]

The main functioning role of the TSX then is to protect investors, and not those that might be affected by enterprises that those investors engage in. The TSX also plays the role of maintaining the function of the exchange, of which confidence in the market is a significant aspect. Neither of these roles provides a duty of care to the Plaintiffs, and in fact, creating a duty of care could arguably undermine confidence in the markets by exposing capital to litigation from functions remotely distant from the regulatory function of the exchange. I know of no other statute in the jurisdiction of Ontario that would provide a statutory cause of action of this type.

For this reason, the Plaintiffs are incorrect when they say in para. 38 of their Responding Factum that, “There are no negative policy implications sufficient to negate a duty of care.” The policy reasons above would also be sufficient to negate the second branch of the Cooper-Anns test, thereby preventing the creation of a new duty of care by the courts. There are even additional policy considerations in R. 21.01(1)(a) that emphasize the role of the courts in conserving costs and avoiding unnecessary litigation that could burden the judicial system. Creating a new cause of action of this type without any restrictions or constraints could potentially open the floodgates to all sorts of litigation related to ancillary actions of multinational conglomerates with only tenuous connections to Ontario, thereby overwhelming our court system even further.

However, the Plaintiffs also invoke in para. 38 what they call an “overwhelming policy reasons to recognize such a duty.” If the nature of Canadian investments is such that they are overwhelmingly affecting the indigenous peoples of other nations adversely in a manner that compromises our values and human rights, this could potentially affect confidence in the market, especially given the specialized nature of the TSX for mining and exploration companies. The Plaintiffs cite Justice Ian Binnie in para. 88 of the Responding Factum, indicating that governance gaps make it difficult to redress human rights abuses committed by private enterprise,

The root cause of the business and human rights predicament lies in the governance gaps created by globalization—between the scope and impact of economic forces and actors, and the capacity of societies to manage their adverse consequences. These governance gaps provide the permissive environment for wrongful acts by companies of all kinds without adequate sanctioning or reparation.

The proper venue to address this governance gap is the body responsible for governance, namely the legislature. It is the legislature that determines appropriate sanctions and reparations, especially when dealing with the highly politicized nature of globalization. Committees can analyze the economic repercussions of such sanctions, the appropriate scope, and maintain the proper balance between various interests. As Campell J. states in his decision,

[53] If there were policy considerations that would favour extending liability as sought by the Plaintiffs, such policy would be appropriately be a matter for the legislatures and not the courts, at least on these facts.

Fortunately, Parliament is undergoing this exact endeavour right now. Bill C-300, An Act respecting Corporate Accountability for the Activities of Mining, Oil or Gas in Developing Countries, goes into its Third Reading this Fall Session, and is scheduled for its first hour of debate on the very first day that MPs return to session, September 20, 2010. The Standing Committee on Foreign Affairs and International Development (FAAE) has already heard evidence on this Private-Member’s Bill. And rather than create a statutory cause of action as sought by the Plaintiffs in this case, the Act would provide the Minister of Foreign Affairs and the Minister of International Trade the responsibility of holding corporations accountable by submitting annual reports to the House and Senate. For now, this is the appropriate balance that the elected representatives of Canadians have identified. If through their reports they identify a pressing and compelling problem, a carefully-tailored Canadian version of the American Alien Tort Claims Act might be appropriate, but until then foreign citizens lack standing to issue such claim, and Ontario courts lack jurisdiction to hear them.

Consequently, my opinion is that even if the Plaintiffs were successful above under R. 21.01(1), they would subsequently fail at R. 21.01(3), which provides the Defendants specific grounds for dismissing a motion,

To Defendant
(3)  A defendant may move before a judge to have an action stayed or dismissed on the ground that,
Jurisdiction
(a) the court has no jurisdiction over the subject matter of the action;
Capacity
(b) the plaintiff is without legal capacity to commence or continue the action or the defendant does not have the legal capacity to be sued;

Although Campbell J. did not discuss this element of the claim, it’s my opinion that the claim would also fail on jurisdictional and capacity grounds. This would provide an additional basis for dismissing the action under R. 21.01(1)(a) by disposing the action in its entirety.

The test used in Ontario for determining the proper jurisdiction is the real and substantial connection test. A jurisdiction does not have to present the most or strongest connection, just a real and substantial connection. There is a rather tenuous connection between the Defendants and the province of Ontario, and the TSX seems to almost be a fortuitous factor rather than a direct party causing the alleged harm. The connection to the Plaintiffs is even more remote, and it’s difficult to see what connection, if any, they have to the Province of Ontario. After the Court of Appeal’s decision in Van Breda v. Village Resorts Limited, the primary focus for determining a real and substantial connection is the first two factors of the “Muscutt test,” namely the respective connections of the Plaintiff and the Defendant to the proposed jurisdiction. Applying the test to this case would likely result in the court finding that a strong connection does not exist. Also, a motion by Defendants for forum non conveniens would likely have followed a successful ruling on this motion, as all the witnesses and evidence of the alleged harm are more properly located in Ecuador, especially if the TSX was struck as a Defendant.

Despite supporting the decision by Campbell J., I do think the case of Piedra v. Copper Mesa Mining Corporation has been a success. If the proper venue for recourse is in the legislature, it requires supporters of Ecuadorian activists to raise awareness here in Canada. This case has done just that by bringing to light the very serious nature of Canadian complicity in human rights violations abroad. Ideally this case, and others like it, will be vigorously discussed in Committee, the House and the Senate. It will require members of the Canadian public to support the passing of Bill C-300. And ultimately it might fall upon the conscience of Canadians to allow our courts to adjudicate human rights issues abroad against corporations with ties to our society. But until then the cause of action brought in Piedra against the TSX is not likely to successful, and in my opinion it should not be and is properly struck on a Rule 21 motion.

TheCourt.ca (James Yap):

I am not quite so convinced. It seems to me that Campbell J. is a step too hasty to characterize the TSX as a mere “voluntary regulator.” Such language seems to imply that the TSX has a merely regulatory function, akin to any state regulatory body. However, this is not strictly so – in reality, the TSX’s activities go much deeper than this. As Campbell J. in fact acknowledges, the TSX is not a state body but a private for-profit corporation. A duty of care thus need not derive from statute, the TSX may be subject to the same duties as other private actors. On the face of things it appears equally plausible, as the plaintiffs argued, to characterize the TSX as a private for-profit entity which holds out a service to the paying public – a service which, in the Copper Mesa case, may have led to the commission of a tort. Framed in such terms, the suggestion that the TSX may be liable in tort becomes much more palatable – akin, for instance, to a firearms dealer who sells a weapon to a customer in the knowledge that the customer intends to use it for an unlawful purpose. It is regrettable that Campbell J.’s analysis does not contain more thorough and deliberate reasoning as to why one characterization describes the TSX’s role more accurately than the other. Hopefully the Court of Appeal’s analysis will delve into greater depth.

Further, I am not sure that Campbell J. is asking the right question when he reasons that “[i]n order to foresee [the alleged] harm, the TSX Defendants would have had to foresee political and business events in Ecuador which allegedly led to unlawful conduct by agents of Copper Mesa. Such a chain of events was not foreseeable or reasonably foreseeable.” The question of foreseeability should not focus on whether the precise events that led to the harm were foreseeable, but on whether harm itself – regardless of the specifics of how it may have come about – was generally foreseeable (see e.g. Hughes v. Lord Advocate, [1963] UKHL 8 – although admittedly this case discusses foreseeability in the context of remoteness and not duty of care). As such, the question should not be whether the TSX should have foreseen the precise “political and business events” that allegedly led to the harm, but whether the TSX, given what it knew about the situation, should have foreseen that allowing Copper Mesa to raise funds on the exchange would have led to greater violence.

In light of all this, I am not so convinced that it is “plain and obvious,” as is the standard on a Rule 21 motion, that the plaintiffs do not have a reasonable cause of action. The plaintiffs’ claim is certainly novel and has its more tenuous aspects. However, this is not a sufficient basis to deny them their day in court altogether.

As my colleague suggests, however, even if the plaintiffs are successful on appeal they will face many difficult legal hurdles later on (although unlike my colleague, I am not convinced that jurisdiction is one – particularly with respect to forum non conveniens, where the joinder of the TSX would make it difficult to establish that another forum is clearly more appropriate. Tellingly, the defendants never filed a forum non conveniens motion – although it is still open for them to do so in future.). Ultimately, Campbell J. may have done little more than save the plaintiffs several years’ worth of expensive litigation costs.

I requested – and was granted – a one-year deferral of my admission to Western Law.

While I toyed with the idea of christening my inaugural blog post “The Thrill of Admission & the Agony of Deferral,” it eventually struck me as a bit maudlin.  After all, I still get to go to law school.  I don’t have to re-write the LSAT or tango with OLSAS ever again.  I know exactly what I’m going to be doing between September 2011 and June 2014.

And really – what’s a year?

But I had already read the pre-law books, and received the O-Week schedule…

I’d started looking for a place to live…

I’d gotten to know a few of my future classmates through Facebook and law student forums…

In my head, I was already there.  Perhaps it was making the decision so late in the game that really hurt.  After all, deferral had always been an option.  I mused about it on my personal blog shortly after being accepted in January.  There were always advantages to working for another year.

Nevertheless, on the eve of what would have been my first week of law school, at the start of what has always been very favourite month of the year, I find myself wrestling with the decision already made, trying to convince myself that it was the “right” one.  Out come the lists:

The Good

• Time flies
• I can learn a language or pick up an instrument (I haven’t enjoyed a year off school in a long time)
• I can get a jump-start on the readings
• I’ll have lots of 2L friends from whom I can borrow notes & get advice
• I can save money – possibly quite a bit of money (and pay off my last credit card)
• I can go to Welcome Day in March again and eat awesome purple & white cake
• I can get excited about 1L all over again – and blog about it here!

The Bad

• I’ll be one year “behind,” and I already feel “old” (having spent the better part of the last decade in school)
• Time flies the slowest when you are most anxious for it to pass
• Having to explain the decision to everyone, including the people who would have become my classmates

In the final calculation, this decision probably won’t make a lick of difference in terms of my career goals.  It’s a year, not a decade.  It’s not like a span of 12 months is going to render me an old maid, weaken my motivation or dull my enthusiasm for learning.

My goal of making the most out of this year will begin here.  This blog will allow me to keep a few irons in the law-fire, and hopefully help warm me up for the type of analysis that will be required of me in law school.

363 days.  I can wait anxiously for them to pass me by, or I can embrace them.

So I will cease the pointless pining for my lost spot in the class of 2013, and look forward to my future place in the class of 2014.

And as my father pointed out, “Class of 2014″ sounds a lot better than “Class of 2013″, anyway.

So.  Things you can expect from me here:

• Commentary on legal aspects of public health issues (i.e. food safety & tobacco)
• Musings on international/human rights legal issues in the news (especially those that involve public health issues, i.e. access to clean water, refugee camp conditions, treatment of political prisoners & health status of prisoners)
• LSAT advice (including, perhaps, a recounting of my 48-hour trip up to Thunder Bay in the dead of winter to write the test at Lakehead after registering too late to write it in Toronto)
• Thoughts on the application process & the importance of personal statements

Onward!  Thanks for having me.

John Hawley was sentenced to ten years in prison for armed robberies committed in his mid-twenties. After he was released on parole, John started a “successful commercial art and design studio in Toronto” (Hawley v. Canada, [1990] F.C.J. No. 337). When he served a part of his sentence in Frontenac Institution, a minimum security prison, he created a large painting entitled “Mount Whymper.” This work of art became the subject of a lawsuit he brought against the federal government claiming copyright in “Mount Whymper.”

The Federal Court denied his claim. It found that John was an employee of the Crown at all material times. The judge looked at some of the traditional factors showing supervision and control of John’s work by the prison authorities. He found that John had a work supervisor and that he painted as part of his prison employment. Section 13(3) of the Copyright Act is unambiguous in denying an otherwise strong protection of the creator in cases of works produced in the course of employment. The employer is the IP owner, period.

But was John really a federal employee? According to the court, if you’re in prison, you are, at least for the purposes of IP ownership. It ultimately doesn’t matter that your employment is forced and that your spare time is artificially limited and controlled. To quote the judge: “Frontenac Institution policies, as found in similar institutions, provide only circumscribed conditions under which an inmate can profit or gain from his own labours exerted during leisure hours.” It looks like the flip side of prison rehabilitation is coerced federal employment and consequent government ownership of any works of art created by the inmate.

Oscar Wilde wrote De Profundis in gaol. Aleksandr Solzhenitsyn composed poems in the Gulag. If they did it in Canadian correctional institutions, would our federal government claim copyright in their works too?

Pulat Yunusov

(Post sponsored by AdviceScene)

You can check it out on Law School Tech Talk.  Hat tip to Connie Crosby on Slaw.

Welcome to the beginning of your law career in Canada!  I am pleased to provide you with this guide to the process I went through to obtain my license to practice in Ontario.

Let me be clear: I’m a U.S. law grad from Toronto, and spent a few years in practice in California.  This description is specific to my experience.  Many of you will have years of experience in other countries, or will be fresh graduates from schools in the U.K., New Zealand, and other fine places in the Commonwealth and beyond.  There are constant changes happening in this process as well, so you’re wise to get the latest and greatest info out there.  I share this info in the spirit of sharing our collective knowledge so that we can reduce the pain for our international colleagues who follow!

I attended law school in Boston, at Northeastern University School of Law and graduated in 2004.  I was “admitted to the California Bar” in 2005.  I will be “called to the bar” in Ontario in January 2011.  All in all, it will have taken me two (did I mention long?) years and over $6,000 (and that’s on the cheap!) to get admitted to practice in the Ontario Bar.

So get ready!  You will have to become familiar with another alphabet soup that will become important in your life: FLSC, NCA, and LSUC.

Be prepared for lots of waiting!  And find creative, productive ways to fill your time (and brain) while you wait.

A.        Overview:

It’s a 3-step process: (1) Get your NCA certification; (2) pass the LSUC Barrister & Solicitor exams; (3) article or have your articles waived.

1.         NCA Certification:

The FLSC is the Federation of Law Societies of Canada, your first gatekeeper.  Here’s more info about it: http://www.flsc.ca/en/about/about.asp.

The National Committee on Accrediation (“NCA”) is the FLSC’s sub-committee that determines what “foreign lawyers” need to do in order to obtain their “NCA Certificate of Qualification.”   More on the NCA here: http://www.flsc.ca/en/foreignLawyers/foreignLawyers.asp.  You need this certificate before you are admitted to the bar exam regsitration for the Law Society of Upper Canada “(LSUC”).  The certificate confirms that you have the equivalency of a Canadian law degree.  To get this certificate, you have to pass a number of law-school level exams, called “Challenge Examinations” and, based on your application, the NCA tells you which subject examinations you must pass.

You might want to check out University of Toronto’s programme for foreign-trained lawyers: http://www.law.utoronto.ca/ITL/.  It was not up and running when I was going through the process so I don’t know much about it.

You can also register as a “special student” in a law school as well, take the courses for the exams you have to take, and pass the exams.  See section “J” of the Guidelines: http://www.flsc.ca/en/foreignLawyers/guidelines.asp.  Passing your exams as a “special student” will count towards your NCA certification as well.  Of course, you have to pay tuition, fees for these courses.  I decided to self-study for these exams because it was cheaper and I felt capable of learning the material on my own.  However, the downside is that self-study requires lots of self-direction, discipline, and is a very solitary endeavour.  There is no easy network of fellow NCA-studiers to tap into, but I always thought it could be easily remedied by a Facebook group or craigslist ad…that I never pursued.  I eventually found study buddies through networking.

2.         LSUC Bar Exams

And now, meet gatekeeper number two: the LSUC.  There’s two things you are registering for: the licensing process itself, and the bar exams. You’ll have to register for this process in early December (beware of a potential moving target here) of the year prior to the year you will take the exams.  Here’s info on the bar exams: http://rc.lsuc.on.ca/jsp/licensingprocesslawyer/exams.jsp.

For studying, you will want to join a study group that will create indices for easily accessing the material you will have to study.  The material is contained in a chunk (~600 for the Barrister’s Exam; ~800 pages for the Solicitor’s Exam) that you will pick up from the LSUC about 6 weeks before your first Exam.  It is also available in searchable pdf form on the LSUC website once you are registered.

So, there’s big fees for all this stuff!  There is some financial assistance available through the LSUC, through the J.S. Denison fund, which requires you to exhaust all other potential sources of financial support.  You can also pay the fees via a payment plan.

3.         Articling

Here’s what you need to know about articling: http://rc.lsuc.on.ca/jsp/licensingprocesslawyer/articling.jsp.

I applied to have my articling requirement waived, based on my experience practicing in California, which was granted.  If you want to apply to have your articling requirement waived, see http://rc.lsuc.on.ca/jsp/licensingprocesslawyer/articlingAbridgment.jsp.

B.        Timeline:

Here’s a summary of my timeline, with relevant links:

February 2009

I applied to the FLSC for a consideration of my credentials.  The Guidelines are here: http://www.flsc.ca/en/foreignlawyers/guidelines.asp.  I completed the “Application Form for Evaluation of Legal Credentials”, attached all information relevant to my legal career, and had to have all my transcripts sent along.  I also had to get a certificate from the California Bar saying I was in good standing.  The application is here http://www.flsc.ca/en/foreignlawyers/applicationForm.asp.  Cost: $525 + $25 to California Bar + cost of transcripts, mailing.  Estimated time for evaluation: 3 months.

June 2009

FLSC informed me that I had to take 4 NCA Challenge Examinations: Constitutional Law, Administrative Law, Criminal Law, and Corporations.  See http://www.flsc.ca/en/foreignLawyers/ncaExaminations.asp.  You can find syllabi on this site, and sample exams.  I had a tough time finding sample answers, though.  I highly recommend writing sample exams if time permits.  Cost: $525 per exam.  Total cost: $2,100.

August 2009

The FLSC determined that it would hold exams outside of its regular exam schedule in October 2009.  I decided to wait.

December 2009

I registered LATE for the LSUC Licensing Process.  Save yourself the $79 late fee and register on time!  Information is found here: http://rc.lsuc.on.ca/jsp/licensingprocesslawyer/index.jsp?language=en.  Lots of info here.  You’ll have to find the page that is specific to your cycle, ie. Mine is for those in the process 2010/2011.  There is, of course an application form and fee.  Cost: $169.  Total cost: $248 + passport photos + cost of having your application notarized.

Started studying for NCA exams.  The syllabi, answer guides, and sample exams are posted on the NCA website.  See http://www.flsc.ca/en/foreignLawyers/ncaExaminations.asp.  I purchased new and used textbooks (craigslist, kijiji).  Cost: $413.

January 2010

Started working on Articling Exemption application to the LSUC.  This involves getting letters of reference from people who know your work, so you must allow sufficient time for this.

I took 4 NCA exams over 4 days in a row.

February 2010

Filed Articling Exemption Application.  Cost: $168 + mailing cost.

April 2010

Found out I passed all 4 NCA exams.

Registered for LSUC Barrister and Solicitor exams.  Cost: $630 registration and $160 for materials for each exam.  Total cost: $1,580.

May 2010

Found out my Articling Requirement is waived.  But that I am required to take an in-person 3-day “Professional Conduct and Practice in Ontario” in Toronto, with a mystery date.

Took LSUC Barrister exam.

June 2010

Took LSUC Solicitor exam.  Estimated time for results: 6-8 weeks.

July 2010

Found out I passed Barrister and Solicitor exams.

Got the date for my “Professional Conduct and Practice in Ontario” course: December 2010.

December 2010

Attend mandatory 3-day “Professional Conduct and Practice in Ontario” course in Toronto (required for those exempted from articling).  Cost: $500.

January 2011

Attend LSUC call ceremony and get my license!  See: http://rc.lsuc.on.ca/jsp/licensingprocesslawyer/callToBarToronto.jsp.  Cost: Call to the bar fee of $250 + cost of renting proper court attire + celebration.

Total cost: $6,000+

There are many details in the links provided here, so peruse to your heart’s content.  Have a realistic picture of the timelines involved here: even the shortcuts may not be as short as you are hoping.  So: Good luck and happy studying!

Linelle S. Mogado, Esq.

B.Sc.(Env.), J.D.

Licensed in California

Anticipated call to Ontario Bar: January 2011

lmogado@yahoo.com

See Part 1 here, and Part 2 here.

Shortly upon my arrival, I was in the McGill bookstore looking for my law textbooks when I randomly ran into and finally met fellow Law is Cool contributor Siena Anstis.  We lamented over the dollars that we would inevitably have to shell out in the next few weeks, but Sienna reminded me that, “It will all pay off in the end.  That’s what I keep telling myself anyway…”

A few days later, I went back to the bookstore to purchase my first set of law textbooks (yes, they are so heavy that I will have to buy them in instalments).  There, I bumped into another fellow 1L.  Although we exchanged no words, our countenances did the talking as we exchanged depressed glances, and I made my way to the cashier to pay for my textbooks.  At the cash, I let out a heavy sigh, still decrying the amount of money that these textbooks were going to cost me.  The cashier replied, “Don’t worry.  You’ll make it all back by the end of [law school].”

If I had a dollar for the number of times I was told that…

Most of us are going to law school with the ulterior motive of making some “good money” (admit it…) at the end of it all.   No one pays upwards of $60 000 for the heck of it.  After all, many of us go to law school desperately hoping that the stereotype rings true: “lawyers are stinking rich, or at least can live comfortably” and “job prospects abound for those with a law degree.”  However, as if to add insult to injury, the following excerpt from a blog post puts the stereotype into question:

The Real Value of a Legal Education

By John Farmer Jr.

America’s law schools begin the 2010-2011 academic year facing one of the greatest challenges to legal education since the rise of the modern law school at the end of the 19th century.

On one hand, the job market for law school graduates has rarely been worse than the past two years, and the class of 2011 is facing an equally daunting paucity of opportunities. As The Star-Ledger reported last week, some recent law school alumni who have had a difficult time navigating the job market have become embittered, claiming that the legal academy induced them to borrow large amounts of money by dangling a career prospect that has proven illusory.

On the other hand, interest in legal education has never been higher. Record numbers of qualified college graduates are applying to law schools, which are not hesitating to enroll them. This, in turn, led some members of the bar, meeting recently at the American Bar Association convention in San Francisco, to question the motivation of the law schools. How, they wonder, can they continue to admit thousands of students when their career prospects are so uncertain?

The struggles of recent law school alumni, coupled with the apprehensions of the bar, should give pause to those of us who are involved in educating the next generation of lawyers. …

In the short term, students should embark upon a legal education with their eyes open; the job market is difficult, and likely to remain so. Legal education is not, as the comments of some would suggest, an entitlement program.

…In retrospect, we were spoiled by the prosperity of the large law firms, and the easy career pipeline and high salaries they offered. Tuitions could be raised without fear of compromising the students’ futures; the debt students were forced to incur would be easy to manage with the high salaries recent graduates were commanding. As a consequence, many law schools became “cash cows” supporting programs in their larger university communities. The focus shifted to revenue; economic issues came to dominate.

But the real value of legal education is not, and never has been, primarily economic. It’s not about money; it’s about freedom.

Legal education gives students what 99.9 percent of humanity yearns for but is denied: control over one’s own life….”

I can’t help but wonder, however, how much control one can exert over one’s life when one is broke and thus at the mercy of loans, the leviathan that is the state and the monster that is capitalism.  We all know that job prospects for new law grads are not as great as they used to be (to say the least) – after all, there’ve been numerous posts and articles about this subject on numerous law blogs and sites.  But what am I to expect as a law graduate in 2014?  This year alone was one of the worst for articling students…  Can we – should we – expect better in a few years?  If so, there are no worries.  If not, however, it would behove the class of 2013 to start law school with, not only the end, but reality in mind.

Society?  It lied to me. My friends and family?  Maybe they were wrong.  It is quite possible that law school will not pay off in the end, or at least not without some elbow grease and elapsed time.  The reality is that, in some ways, many of us law students will be like donkeys with that illusive (or, depending on how you think of it, elusive) carrot dangling in front of us – motivated to work because of and for the carrot but forever running after something we may never realistically obtain.

Records of Convictions for Provincial Charges in Ontario

Do your driving convictions really disappear after 3 years?  Simon says, “No!”  Keep reading to find out more about how the government keeps provincial offence records and what happens to them after three years.

Background Information on Provincial Offence Records

First some background information on provincial records.  The Ministry of the Attorney General in Ontario keeps records of individuals’ convictions for all provincial charges, the most common Acts being the Highway Traffic Act (HTA), the Compulsory Automobile Insurance Act (CAIA), and the Liquor Licence Act (LLA).  However these records are kept on an antiquated system, known as ICON, and are not easily searchable by police officers in the course of their regular duties.  These records are primarily for the courts to maintain and use.  ICON records are kept longer than three years.

This means that police officers aren’t likely to know about your underage drinking or public intoxication tickets when they run your name, unless you are dealing with the service that issued you the ticket, then they will probably have record of it on their own computer system.

MTO Records of HTA and CAIA Charges

The Ministry of Transportation (MTO) also keeps a records system, known as PARIS (Plate and Registration Information System).  PARIS is accessed through the CPIC (Canadian Police Information Center) software, which is readily available to all police officers.

PARIS keeps track of individuals through their driver’s licence number and only deals with driving related provincial offences, namely Highway Traffic Act and Compulsory Automobile Insurance Act charges.  It also keeps records of any driver’s licence suspensions, regardless of what they were from (i.e. medical, unpaid fines, racing, criminal conviction, etc).  The PARIS record is what people are referring to when they speak of their “driving record”.

When a police officer runs (checks) your driver’s licence number, they will see your licence status and your convictions on PARIS, as well as any points you have accumulated from those convictions.  Police services in Ontario (with the exception of the OPP and MTO enforcement officers) only have access on PARIS to the last three years worth of convictions and demerit points (although points actually regenerate after only two years).

The Three Year Myth

The fact that most officers can only see the last three years worth of convictions, coupled with the fact that insurance companies usually only ask about your last three years, has led to the myth that driving convictions are wiped off your record after three years.  This is not the case!  PARIS keeps records of your convictions indefinitely, it’s just that most officers can’t see them.  The OPP and the MTO, however, can.  So remember this the next time you are asked if you’ve had any tickets in the past!

Simon Borys

From my blog: Simon Says, Category: Police Myths

Cyber-Surveillance in Everyday Life: An international workshop

May 12-15, 2011, University of Toronto, Canada

Digitally mediated surveillance (DMS) is an increasingly prevalent, but still largely invisible, aspect of daily life. As we work, play and negotiate public and private spaces, on-line and off, we produce a growing stream of personal digital data of interest to unseen others. CCTV cameras hosted by private and public actors survey and record our movements in public space, as well as in the workplace. Corporate interests track our behaviour as we navigate both social and transactional cyberspaces, data mining our digital doubles and packaging users as commodities for sale to the highest bidder. Governments continue to collect personal information on-line with unclear guidelines for retention and use, while law enforcement increasingly use internet technology to monitor not only criminals but activists and political dissidents as well, with worrisome implications for democracy.

This international workshop brings together researchers, advocates, activists and artists working on the many aspects of cyber-surveillance, particularly as it pervades and mediates social life. This workshop will appeal to those interested in the surveillance aspects of topics such as the following, especially as they raise broader themes and issues that characterize the cyber-surveillance terrain more widely:

• social networking (practices & platforms)

• search engines

• behavioural advertising/targeted marketing

• monitoring and analysis techniques (facial recognition, RFID, video analytics, data mining)

• Internet surveillance (deep packet inspection, backbone intercepts)

• resistance (actors, practices, technologies)

A central concern is to better understand DMS practices, making them more publicly visible and democratically accountable. To do so, we must comprehend what constitutes DMS, delineating parameters for research and analysis. We must further explore the way citizens and consumers experience, engage with and respond to digitally mediated surveillance. Finally, we must develop alliances, responses and counterstrategies to deal with the ongoing creep of digitally mediated surveillance in everyday life.

The workshop adopts a novel structure, mainly comprising a series of themed panels organized to address compelling questions arising around digitally mediated surveillance that cut across the topics listed above. Some illustrative examples:

1. We regularly hear about ‘cyber-surveillance’, ‘cyber-security’, and ‘cyber-threats’. What constitutes cyber-surveillance, and what are the empirical and theoretical difficulties in establishing a practical understanding of cyber-surveillance? Is the enterprise of developing a definition useful, or condemned to analytic confusion?
2. What are the motives and strategies of key DMS actors (e.g. surveillance equipment/systems/ strategy/”solutions” providers; police/law enforcement/security agencies; data aggregation brokers; digital infrastructure providers); oversight/regulatory/data protection agencies; civil society organizations, and user/citizens?
3. What are the relationships among key DMS actors (e.g. between social networking site providers)? Between marketers (e.g. Facebook and DoubleClick)? Between digital infrastructure providers and law enforcement (e.g. lawful access)?
4. What business models are enterprises pursuing that promote DMS in a variety of areas, including social networking, location tracking, ID’d transactions etc. What can we expect of DMS in the coming years? What new risks and opportunities are likely?
5. What do people know about the DMS practices and risks they are exposed to in everyday life? What are people’s attitudes to these practices and risks?
6. What are the politics of DMS; who is active? What are their primary interests, what are the possible lines of contention and prospective alliances? What are the promising intervention points and alliances that can promote a more democratically accountable surveillance?
7. What is the relationship between DMS and privacy? Are privacy policies legitimating DMS? Is a re-evaluation of traditional information privacy principles required in light of new and emergent online practices, such as social networking and others?
8. Do deep packet inspection and other surveillance techniques and practices of internet service providers (ISP) threaten personal privacy?
9. How do new technical configurations promote surveillance and challenge privacy? For example, do cloud computing applications pose a greater threat to personal privacy than the client/server model? How do mobile devices and geo-location promote surveillance of individuals?
10. How do the multiple jurisdictions of internet data storage and exchange affect the application of national/international data protection laws?
11. What is the role of advocacy/activist movements in challenging cyber-surveillance?

In conjunction with the workshop there will be a combination of public events on the theme of cyber-surveillance in everyday life:

• poster session, for presenting and discussing provocative ideas and works in progress
• public lecture or debate
• art exhibition/installation(s)

We invite 500 word abstracts of research papers, position statements, short presentations, works in progress, posters, demonstrations, installations. Each abstract should:

• address explicitly one or more “burning questions” related to digitally-mediated surveillance in everyday life, such as those mentioned above.
• indicate the form of intended contribution (i.e. research paper, position statement, short presentation, work in progress, poster, demonstration, installation)

The workshop will consist of about 40 participants, at least half of whom will be presenters listed on the published program. Funds will be available to support the participation of representatives of civil society organizations.

Accepted research paper authors will be invited to submit a full paper (~6000 words) for presentation and discussion in a multi-party panel session. All accepted submissions will be posted publicly. A selection of papers will be invited for revision and academic publication in a special issue of an open-access, refereed journal such as Surveillance and Society.

In order to facilitate a more holistic conversation, one that reaches beyond academia, we also invite critical position statements, short presentations, works-in-progress, interactive demonstrations, and artistic interpretations of the meaning and import of cyber-surveillance in everyday life. These will be included in the panel sessions or grouped by theme in concurrent ‘birds-of-a-feather’ sessions designed to tease out, more interactively and informally, emergent questions, problems, ideas and future directions. This BoF track is meant to be flexible and contemporary, welcoming a variety of genres.

Instructions for making submissions will be available on the workshop website by Sept 1.

See also an accompanying Call for Annotated Bibliographies, aimed at providing background materials useful to workshop participants as well as more widely.

Timeline:

2010:

• Oct. 1: Abstracts (500 words) for research papers, position statements, and other ‘birds-of-a-feather’ submissions
• Nov. 15: Notification to authors of accepted research papers, position statements, etc. Abstracts posted to web.

2011:

• Feb. 1: Abstracts (500 words) for posters
• Mar. 1: Notification to authors of accepted posters.
• Apr. 1: Full research papers (5-6000 words) due, and posted to web.
• May 12-15 Workshop

Sponsored by: The New Transparency – Surveillance and Social Sorting.

International Program Committee: Jeffrey Chester (Center for Digital Democracy), Roger Clarke (Australian Privacy Foundation), Gus Hosein (Privacy International, London School of Economics), Helen Nissenbaum (New York University), Charles Raab (University of Edinburgh) and Priscilla Regan (George Mason University)

Organizing Committee: Colin Bennett, Andrew Clement, Kate Milberry & Chris Parsons.