John Gregory kindly told us about the May 17 private bill to amend the Ontario Electronic Commerce Act, 2000 for real estate documents.

The main change in the bill will be that real estate documents are no longer excluded. This would give effect to a recent recommendation by the Canadian Uniform Law Conference. The change is an important piece of housekeeping and we should make it.

John questioned we should make some added changes that are in the bill. In my view, it would be a mistake to make these added changes, and we should remove them from the bill. But we do need to study a morass of old and new laws on real estate documents and to reform them.

Added changes

Currently, the legal formalities for, say, giving a 5-year lease of a small store are perhaps entirely different from those for, say, giving a 1-year lease of a very large aircraft. We must sign and seal the former, but we can perhaps use our judgment on how we execute the latter.

John has previously said that the Act was purposely "minimalist" and "technology-neutral," like the UN model and Acts in other jurisdictions.

We'll continue to refine the process for electronic signing, for everything from buying a book over the internet, to securely signing a contract using a service like DocuSign or perhaps Cosign. We'll continue to use Teranet's secure process for registering electronic documents. The "minimalist" and "technology-neutral" approach accommodates these refinements.

The Act now says that, where the law would require an electronic document to be signed, it must have an electronic signature. This is electronic information that a person creates or adopts in order to sign the document and that is in, attached to or associated with the document. We'd probably feel that this was a good test.

However, the Act may require more for some documents. For these documents, the electronic signature must be more "reliable." It must be more "reliable" for the purpose of both identifying the signer and associating the electronic signature with the document. Whether the electronic signature is "reliable" depends on "all the circumstances." These include "any relevant agreement, the purpose for which the document is created and the time the electronic signature is made." We'd probably wonder what this requires and why it might be needed.

The documents for which the electronic signature was to be "reliable" in the above ways were to be described by regulation, but there's no regulation. This confirms that we haven't yet needed to use the "extra-reliable" test.

The bill would say that some real estate documents must meet the "extra-reliable" test; a mere regulation won't do the job.

The bill would use the words in the old exclusion to describe the real estate documents that must meet the "extra-reliable" test. This is, "Documents, including agreements of purchase and sale, that create or transfer interests in land and require registration to be effective against third parties."

Defining a kind of document is bound to cause confusion. The above words are especially confusing.

For example, any agreements can create an "interest in land," if a court will order "specific performance" of it. The agreement creates the interest, because equity regards something as done where it ought to have been done. For an agreement of purchase and sale (which the words specifically mention), the courts routinely ordered specific performance, because every piece of land is unique. Lately, the courts have accepted that many properties are so similar that damages are an adequate remedy. It doesn't seem to be a good reason for deciding whether a document must meet the "extra-reliable" test, that a court will order specific performance of one agreement, but not another.

Or, for example, the Ontario Land Titles Act either guarantees some registered interests in land or gives priority to some registered interests in land. The Act doesn't directly deal with whether a document is "effective against third parties," or treat all documents the same way. For example, a grant of a perpetual right of way needn't be registered, but a lease for a period yet to run of more than three years must be registered. This doesn't seem to be a good reason for deciding whether a document must meet the "extra-reliable" test.

When we discuss the above words, we tend to refer loosely to the documents to which the words might apply. We call them "land transfers" or "documents of title." This can hide the true effect of describing a document according to whether it creates an interest in land and should be registered.

Real estate documents raise many formal issues. Some formalities are ancient, like a seal on a deed, or written and signed evidence under the Statute of Frauds. Even the realtors' standard agreements of purchase and sale purport to be "sealed," in order to make an offer irrevocable. Section 13 of Land Registration Reform Act does away with a seal on a transfer, charge or discharge. Section 21 does away with writing and signing on an electronic document that creates an interest in land.

John Gregory's articles on electronic documents and electronic seals, and the comments on them (including mine), deal with these issues.

Conclusion

We need to study the morass of old and new laws on real estate documents and to reform them. The added changes in the bill only touch the surface of this morass. For the time being, we should make the important housekeeping change recommended by the Canadian Uniform Law Conference, by removing the exclusion for some real estate documents. We should defer the added changes in the bill until we can study the issues and deal with them fully.

This may disappoint people in the real estate industry, but they would be wise to press for a full solution. In the meantime, the above articles may show that our existing laws aren't as serious an obstacle to electronic transactions as might appear.

In this case the court or jury could fairly hold that the caller was partly responsible, since the course of conduct meant that it was reasonably foreseeable that the driver would engage with her text message while driving, just as he had done with the previous one, and the one before that. The driver was clearly also responsible, but it's not obvious that he was 100% responsible.

On different facts – where the caller/texter did not know where the recipient was or did not know that he was going to read or answer a message while driving, the caller/texter would not be liable. But it's not the remoteness that makes that so; it's the usual tort tests of causation and reasonable foreseeability.

Perhaps David "Causation" Cheifetz has a more precise view…

However, it occasionally publishes a print version. It did so to mark the Centre for Philanthropy's National Summit on philanthropic issues last November. It also permits the download of an entire issue at a time, as well as reading any or all of the content online.

So: the boundary between print and electronic is, as Mark says, porous and not fixed.

How about legal fees? Presumably they are safe from consititional attack, though far in excess of the hearing fees in most cases, because they are not imposed by the state.

Presumably the decision of the Supreme Court of Canada not to give leave is a strong indication that this reasoning is valid across the country, at least on the property issue and at least in common-law jurisdictions

No more (or less) valid than if leave hadn't been sought.

David

I had the chance to attend the last INTA meeting in DC. This was an opportunity to discuss the various on-line artifacts of a trademark on the Internet (domain name, social media, search engine marketing) with IP professional. I was surprised by the chasm between the practices regarding on-line brand protection. Either in terms of the used business models or technologies.

-Kim

I'd be very happy to chat to anyone about what is going on over here, if I can be at all helpful

Best
Nick West
Director of Legal Markets, LexisNexis UK

The early thinking is that the AG will not hesitate to appeal the decision.

An excerpt:

…“We are delighted that access to the courts has been upheld as a “common good” and that government has been found responsible for ensuring equality of access for all,” said CBABC Past President Stephen McPhee, QC.
…
…This is a landmark decision with far-reaching impact across the country in terms of a resounding statement of the legal principles that pertain to equal access to justice.

“The CBABC views the decision in Vilardell v. Dunham as a welcome confirmation of the right of everyone to equal access to justice. Mr. Justice McEwan has declared hearing fees unconstitutional and in so doing found that the fees, which escalate to over $600 per day, are an impediment to the courts for all but those who are well to do,” said Mr McPhee. “This decision reaffirms that the courts exist for everyone, regardless of their wealth or the size of their case. In the current context of justice reform, the decision is a comprehensive and compelling review of the legal principles that direct how government and the courts must interact to fulfill their constitutional responsibilities.”

Consider the Patriot Act, the recent constitutional votes on the rights of minorities and historical issues of freedom in the United States (not that Canada or anywhere else is a whole lot better), and I don't think anyone should be much surprised about the content of this law. Why should anyone have the ability to shout out from the peanut gallery and annoy the annointed? That's not the way things really get done in America these days. Unless you're calling Obama a liar during a State of the Union address, that is.

Anyways, I've shared enough of my cynicism born of long observation of how Americans actually act as opposed to what they say. I should instead watch American Idol so I can be happier, more maleable consumer which is what modern day America ordered up.

Thankfully, I'm not American, and I can remain for now at least safely anonymous…

The law is not merely the purview of the moneyed elite as it sometimes seems to be.

That said, how will professional obligations be maintained in the new arena? I guess the barristers and solicitors of the U.K. shall lead the way and let us know by trial an error.

It has the latest updates on the Symposium, neat factoids, and more.

For my part, I generally call for killing everyone. After all, not one is righteous and we're all sinners deserving of an eternity in Hellfire. That seems fair enough for me and we have the nukes, biological and chemical weapons in numbers and quality sufficient to make it a reality. This is merely the logical outcome of our death penalty driving bloodlust in my view and there's no good reason it ought not be pursued (we've spent trillions of dollars on this after all, and surely we didn't spend all that money on pure stupidity and evil did we?).

I won't pretend that this view is seeking justice, but it sure as heck is seeking something that the human heart and soul deeply desires.

The Wet One

It is a separate question whether the tribunal or a court should go behind that plain argument to say (along the lines of 'and no plainer…') that the payments were expressly or impliedly provided in lieu of services or to permit the receipt of services, or both, and therefore the payment was the equivalent of providing services and covered by the statute.

Plain language is not plain meaning. Plain language is intended to convey plain meaning. It may or may not succeed.

The 'modern sense' presumably refers to the 'modern method' of statutory interpretation, which avoids older tests like 'the mischief rule' or 'the plain meaning rule' or various presumptions, and says that one has to read the whole text in context to understand what the text means.

In this case reading the statute in the context of the history of the parties and the payment system might be helpful in deciding whether the payments should be treated as the equivalent of services.

With respect to signatures, if one imposes a reliability requirement, is there not a risk that some e-signatures will be held invalid for insufficient reliability, even if everyone knows who did them and why? Today in Ontario one does not need a signature on a real estate transfer (Land Registration Reform Act s. 19), so is it necesary to impose an open-ended technology requirement?

The third point deals with documents of title. Documents of title are not used to convey real estate. Thus that provision will not facilitate electronic land transfers.

Is it safe to allow the E-Commerce Act to apply to documents of title without any safeguards or barriers to promote security or uniqueness of the document, and to deal with the consequences? (New Brunswick's Electronic Transactions Act has never excluded them; everyone else's does SFAIK.)

http://bc-injury-law.com/blog/bc-court-hearing-fees-declared-unconstitutional-legislature-reminded-duty-maintain-judiciary

Yours truly,

Erik

esign

Neither the federal nor the provincial statute gives us the day off, however, as distinct from enjoining us to celebration. In Ontario that more practical function is served by the Retail Business Holidays Act or the Employment Standards Act. (Neither allows the Governor General to give employees a holiday in this sense; only provincial proclamations can have that effect.)

Interpretation legislations merely tell us what days may be meant when a statute or regulation refers to a 'holiday', often by way of saying that some deadline for an official action is extended for a day past the holiday.

For better or worse, this makes for a small redundancy in the definition of "holiday" in section 35 of the Interpretation Act, R.S.C. 1985, c. I-21.

Daniel.

The same is true in the Hearts game. Once you've won a couple, suddenly you're not getting the good cards any more, and your most inconvenient opponent is.

I wish the Solitaire game had a 'replay the same deal' option. With a real deck, one can turn over the alternative to the card played, and see what might have happened. No backing up or replaying on the computer. I can understand no backing up, but a replay would occasionally be fun.

Might I also add that, though litigation risk avoidance is obviously the goal, justification for its cost is less evident. The cost of the model licence – which runs to the end of 2015 – will vary with the size of the campus, but will it be worth the cost of any potential litigation for copyright violation? And what is the value of an updated precedent on fair dealing in education?

UBC's statement is an interesting read. On the flipside, the student comment posted May 15 is also an interesting read…

It is worth noting, also, that not all universities will be passing on the costs to the students – directly, anyway. Manitoba makes this clear in its statement.

As those interested in this issue might know, Prof. Ariel Katz has been inducting the various dominoes into his Halls of Fame and Shame.

Prof. Katz's post shows a few dominoes falling in the other direction: U of Winnipeg recently joined UBC and Athabasca U, with strong words from President Axworthy, who called it a "cash grab."

The University of Windsor confirmed yesterday it also will continue to operate without Access Copyright. Windsor published copyright and fair dealing guidelines and operates its own limited Copyright Clearance Service to assist with rights assurances and clearance.

Once the first two dominoes fell, it seemed the other universities would shy away from standing alone to face possible litigation. Clearly, that foreseen eventuality is not reality. There seems to be some security in numbers now among those who chose to turn away now from Access Copyright or, like Calgary and Memorial, signed the letter of intent but are evaluating their options before deciding whether to sign the actual licence, by June 30.

Your comments are thoughtful as always. I know of no other profession that makes claims to both act and regulate in the public interest as strongly as we do in the legal profession. There are many large gaps between the rhetoric of lawyering and the reality: see the Barrister's Oath in Ontario for example. Judges could order lawyers appearing before them to do pro bono. I agree they likely could not order other lawyers. There would be an obvious inequality in this. I would like to see the profession start with aspirational ethics on pro bono, at least.

Years ago, I read a case in the Reports of Family Law in which the domestic problems of a former classmate were published for everyone to read, including their children. It all seemed so unnecessary. For that reason, I became proponent of the use of initials in family law cases.

Early efforts by the legal publishers to deal with this issue were rendered ineffective with the arrival of comprehensive case citators and the publication of full text cases. The result was that the effort by some publishers to protect the innocent was negated by the courts and by other publishers who used the names of the parties.

I believe that the issue is one that could be easily addressed by the courts who have the option of releasing the decisions without using the parties names, as happens in Quebec.

I agree with Angela that it is time for the judiciary to act responsibly in these matters rather than indulge themselves at the expense of families who are made the objects of ridicule as a result.

Then there's the political spin. Draw your own conclusions.

http://www.cbc.ca/news/politics/story/2012/05/18/pol-court-throws-out-etobicoke-centre-election-wrzesnewskyj.html

Conservative Party spokesman Fred Delorey said they're disappointed with the court decision after 52,000 people in Etobicoke Centre "followed the rules, cast their ballots and today had their democratic decision thrown into doubt."

[defeated Liberal candidate] Wrzesnewskyj told CBC News that the riding needs a by-election to restore democracy.

This seems to be a bit more sophisticated version of the email trust-money scams, where here, they have someone actually make personal voice contact, and then “pass off” to someone in another jurisdiction, where the scam action is really generated and centered. And since she had a rather heavy Asian accent, what would I know from thereafter, speaking to another woman with a heavy Asian accent at the number in LA to which I would be directed?!

There may be a real concerted effort here to scam our accounts.

The Right Honourable Beverley McLachlin, Chief Justice of Canada, announced today that Justice Marie Deschamps has written to the Minister of Justice, the Honourable Robert Nicholson, to inform him that she will retire from the Supreme Court of Canada. Justice Deschamps’s retirement will be effective August 7, 2012.

“Justice Deschamps has made a very significant contribution to the Supreme Court and, more broadly, to the administration of justice in Canada. We will miss her wisdom, intelligence, keen wit and boundless energy. She has been a wonderful colleague and will always be a good friend”, said Chief Justice McLachlin.

Robinson c. Films Cinar inc., 2009 QCCS 3793 (CanLII)
http://canlii.ca/fr/qc/qccs/doc/2009/2009qccs3793/2009qccs3793.html
(the images start before paragraph 506/footnote 336; I can see the similarities in the images used for Les Aventures de Robinson Curiosité and Robinson Sucroë, but love how they are different)

However, it's short on keyboards. They vary from flimsy to virtual to clunky. The bets of the lot may be the blackberry, and that's a thumb-keyboard.

I currently use the smallest netbook that has a comfortable keyboard (an Acer Aspire), because I write almost as much as I read.

In the security sphere, my connection to the IT network is rdesktop (sometimes also called RDP), so when necessary I have the same working experience as someone chained to a desktop. I also have all my local computing power, at the cost of having to run the (U.S.) NSA's secure version of Linux, so a random thief/hacker doesn't walk off with more than the hardware (;-))

I think I can predict a continuing life for the laptop, in part for a larger screen and in part for a keyboard I can use all day. Along with a plethora of pads!

–dave

So for kirpans: is there a history of their being used for actual fighting or for threatening people, in public places such as courts, or in schools, in Canada? If not, why not figure out how they can be allowed? The principles of open public access to the courts, and of participation on juries, in this case appear to outweigh the need to combat the threat that the kirpan might be dangerous to anyone.

The same reasoning lay behind the decision of the SCC that kirpans should be allowed in Quebec schools.

Yonit Fuhrmann, Deputy Director

http://www.nwtcourts.ca/Sissons/sissons.htm

Then I saw this:

(Until somebody comes in with a RIM Playbook or other oddball device).

Up until that point, I actually expected you to say "The RIM Playbook is probably the best device currently on the market for lawyers".
I am not associated with RIM in any way, but I've been really impressed with the Playbook, and find it a great tool in my practice.

First, the smartphone of choice for lawyers is overwhelmingly the Blackberry. That may change, of course (20 years ago, the word processor of choice for lawyers was overwhelmingly Wordperfect).
The Playbook is designed to work along with a Blackberry, in ways other tablets cannot.

With respect to connectivity, the Playbook does not have built-in 3G/LTE connectivity, but it nonetheless has mobile connectivity. It can tether with any phone (Blackberry or other) that supports Bluetooth Dial Up Networking protocol. Depending on your phone's data plan (make sure to check it – some plans charge ridiculous fees for tethering, like $6/Mb), this may well save money, as you will only be paying the monthly fees to Bell/Rogers/Telus for your smartphone, not for your smartphone and 3G tablet.

With respect to virtualization, this is already built into the Playbook if you also have a Blackberry smartphone. The "Blackberry Bridge" is a special form of tethering that essentially allows you to use the Playbook as an extended screen for your Blackberry, so you can access emails, files, and your intranet on your Playbook, using your Blackberry's secure internet connection. If you take the tablet out of Bluetooth range from the Blackberry, the confidential emails, open documents, and the intranet browser will 'disappear' from the Playbook. Assuming your IT department has already set your Blackberry up to be secure, the Playbook will be secure. There is nothing more for the IT department to do.

Though the Playbook was much maligned in the initial reviews when it was released in early 2011 (mostly because the software was not-quite-finished; most of the issues raised in old reviews have since been addressed), one thing that the reviews generally agreed on was that the Playbook had the best tablet-based browser on the market, and that it was the closest thing to a desktop browser available on any tablet, iPad included. That is hugely important if you are talking about running web-based apps.

I purchased a Playbook in January, and use it regularly in my practice. My office uses an intranet-only browser-based client management program. Using the Blackberry Bridge, I can log into the program securely from anywhere I have cell phone coverage, with full secure access to case data, documents and so forth. Our IT department did not have to do anything to allow this to work.
We get faxes as PDF attachments via email. Though the text of a PDF fax is too small to read on a smartphone, a fax can easily be read on a tablet screen.

Playbook also has support for reading and editing Microsoft Office documents, which again can be opened if received as email attachments. And such document stay on the Blackberry, so there are no additional security issues with the Playbook. I asked my IT department about using the Playbook when I got it, and the answer was they did not need to do anything, it would just work. It did.

So, don't be so quick to dismiss the Playbook. It already does most of the great things your article says tablets should do. It probably will save your IT department headaches, not cause them, because it has the virtualization aspect already taken care of.