And what is it you’re afraid of? There are the common fears that many of us can relate to: heights; falling; spiders; darkness; silence; being alone. In professional life, your fears may include: forgetting something important; making a significant error; not meeting expectations; looking foolish; not having enough work or maybe having too much work.

The concept of courage has been front-of-mind lately. I am reading Brené Brown’s book Daring Greatly, which focuses on living a whole-hearted life and in that context, addresses the topic of courage head on. The need for courage is also a recurring theme in the CBA Futures conversations I’m reading, in the context of what is needed to effect change in the legal profession. And just recently I noticed the exhortation to “Have courage” on the inside of my Kate Spade iPhone case.

Courage is required whenever we are asked to step outside our areas of competence. Seth Godin recently wrote in Competence vs. Possibility about how restricting ourselves to doing only what we are already competent to do reduces opportunities for innovation. He wrote:

We often stop surprising ourselves (and the market) not because we're no good anymore, but because we are good. So good that we avoid opportunities that bring possibility.

This is particularly true for lawyers, I suspect. Our professional obligations not only require us to be competent but also discourage lawyers from taking on work in areas in which we are not competent. This is of course prudent, especially from a risk management perspective, but may close us off from what Godin describes as “possibility, innovation, art….”

When I take a risk and step outside my professional comfort zone, it is always difficult and uncomfortable at the start. Not knowing what I’m doing isn’t easy and creates many moments of angst. Every time I take on a new task, I struggle with the fear that I’m out of my depth and that I may not complete the job to my satisfaction or the satisfaction of those who hired me. But when I am able to harness my fear, the energy it requires can instead be channeled into mastery of something new, and through that process, my competence “zone” expands.

It doesn’t always work that way. Sometimes, the worst happens or the result is less than hoped for. In those situations, grace is required, not to mention a good backup plan.

That backup plan is essential and should include reliance upon the supports that enabled you to step out from where you are most comfortable – whether your staff, colleagues or family members. Those supports can facilitate and enable your act of courage.

Brown suggests that living wholeheartedly requires that we open ourselves up and embrace our vulnerability. While some may see that as weakness, she says, rather:

“Vulnerability sounds like truth and feels like courage. Truth and courage aren't always comfortable, but they're never weakness.”

Sandra Petersson wrote here a few months ago about Brown’s research into living with vulnerability in the context of addressing the feeling of not being good enough and living with courage to be imperfect. I suggest the same truths also apply to those who feel capable and competent, especially where that competence acts to shield us from growth and development.

Living with courage to be imperfect isn’t at all inconsistent with being a competent professional. Indeed, Law Society Rule 2.01(2) Competence specifically sets out in the Commentary that “This rule does not require a standard of perfection.”

While you may not be ready to wholeheartedly embrace imperfection and vulnerability in all aspects of your life, there is comfort in knowing that, for each of us, doing so requires daily and ongoing doses of courage.

On Mother’s Day, I sat down to write this blog – and reflected on the extra challenges that women associates still face in making it to partner. This is despite the fact that most law firms have generous maternity leave policies. From the firm’s perspective, their greatest challenge in developing more women partners is the loss of very good senior women associates from the partnership track, particularly at the six year call level – just when firms are considering associates for partnership. Why is this? It is not because women lose interest in becoming partners after six years of call, but because of two colliding events.

First, many young women complete five or six years in practice just when they hit their prime childbearing years– somewhere in their thirties – at the same time that an associate becomes a serious contender for partnership. (While some women defer having children until they are made partner or reach executive positions in order to avoid the maternity leave pitfalls, this is a very risky gamble given the difficulties of conceiving as women move into their late thirties).

The second reason is because of either unconscious or perhaps conscious bias on the part of some firms. Some partners wonder if the returning woman will be able to handle the pressures of motherhood and full time practice. The partner may also be concerned that a large file might be interrupted by a second maternity leave. No matter how well intentioned those reasons appear to be (from the partner’s or firm’s perspective), the result is women returning from maternity leave are often denied the ability to work on complex or good files, or to engage with clients on projects which would give that associate an opportunity to develop the expertise or client relationships which are key to any partnership considerations.

Another challenge is that some partners have formed a good working relationship with another associate while the woman was away. The partner may ignore the returning woman associate and expect her to create a new relationship with other partners and find new work there. This can be very difficult especially if the other partners have concerns about the associate’s commitment to the firm and practice of law now that she has children. For all of these reasons, a woman associate may find herself struggling to both find good work and experience, and the necessary business development opportunities after she returns from her leave.

This is where leadership from the top of the firm is so important. The managing partner or management committee must have a plan in place to work with the returning woman associate and the partners in her group to ensure she continues to get good work to support her professional development and meet her targets.

This plan cannot be left to the partners with whom the woman works as they may have all or some of the biases mentioned above. Leadership from the top sends a strong signal to the partners that there is an expectation that the returning woman associate will be supported. It also sends a signal to all the women associates that the firm wants them to succeed and is willing to work with them to help bridge this time through to partnership.

The transition back to practice after giving birth is probably the most difficult and challenging time in a woman’s legal career. Many firms assist this transition with a reduction in billable targets for a short period of time or greater flexibility around work arrangements. This short-term investment will pay off in the long term when a strong associate stays on partnership track and eventually becomes partner.

Unfortunately, law firms do not always think long-term. They may see a reduced hours arrangement as a loss in revenue for that year while forgetting that the development of quality, committed partners requires a longer-term investment.

If a woman associate sees that she is getting no support from the firm in rebuilding her practice nor is anyone speaking to her about what work arrangements might help her over the short-term, she often assumes that the firm doesn’t really care whether she stays or leaves. She may also assume (correctly or incorrectly) that the firm is sending her a signal that she is no longer on partnership track now that she is a parent.

The result of this lack of communication between the returning lawyer and the firm is that women associates often quit, as they see no future no matter how hard they work. From their perspective there are just too many barriers being placed in their path.

When a woman lawyer quits, it can easily be rationalized by the firm as a “life-style” choice unrelated to anything they have done or could have done. This contributes to the firm’s belief that women lawyers are less likely to make it once they have children. It can become a continuous and frustrating cycle for both partners and associates.

However, given good work and often some slight changes in work arrangements, these same women can bridge the gap between becoming a parent and a partner. Firms that reach out to their returning women associates to see how they can assist them during this crucial phase of their career, create very loyal associates. The women are willing to go the extra mile because the firm has signaled that it believes in them and wants them to succeed.

Supporting returning mothers may be the most critical point in a woman lawyer’s career that will create the opportunity for partnership. Firms need to start by showing leadership at the top, having a plan to keep the work flowing, seeing what adjustments can be made in work arrangements and keeping the conversation going. This short-term investment may be the best investment a firm can make in retaining talented women associates who will one day make remarkable contributions as partners.

This is not just a Microsoft issue. Other providers of communication and data storage may also be able to do that for certain services (Facebook, Google). A close read of various service provider terms of use and privacy policies show they have the option to review data. It is usually intended as a way to control things like spam and fraud or violations of acceptable use policies.

Users will have to decide if they require true end to end encryption where the service provider can't access data at all, or whether they can accept service provider access and rely on contractual promises on what the service provider will do with that. The answer may vary depending on the sensitivity of the information being stored or communicated by the service, or legal or contractual obligations one has regarding the information.

Each Wednesday we tell you which three English-language cases and which French-language case have been the most viewed on CanLII and we give you a small sense of what the cases are about.

For the week of May 14 – 21:

1. R. v. Duncan 2013 ONCJ 160
   

   5. At heart, Mr. Duncan’s case was unremarkable. A minor alleged Highway Traffic Act offence led to a police-citizen interaction in the parking lot of Mr. Duncan’s apartment building in the wee hours of the morning. A request that Mr. Duncan produce his licence led to an alleged refusal, which led to an attempt to arrest him, which led to a struggle, which was captured on a very poor quality video taken on a mobile phone, at the end of which Mr. Duncan found himself being placed under arrest for allegedly assaulting a police officer. Nothing unusual in all that. The bread and butter of provincial court.

2. Meads v. Meads 2012 ABQB 571
   

   1. This Court has developed a new awareness and understanding of a category of vexatious litigant. As we shall see, while there is often a lack of homogeneity, and some individuals or groups have no name or special identity, they (by their own admission or by descriptions given by others) often fall into the following descriptions: Detaxers; Freemen or Freemen-on-the-Land . . .

3. Fernandes v. Penncorp 2013 ONSC 2803
   

   1. This is a ruling on prejudgment interest and costs following a seven day trial in November and December 2012. I released a judgment dated March 22, 2013[1]. I rely on the facts set out in my judgment. I will only repeat the facts that are necessary to support this ruling.

   2. Avelino was a bricklayer. He injured his back on December 11 and 13, 2004 and his left shoulder on November 14, 2005. He was unable to work from the time that he injured his back on December 11, 2004. Fernandes had a disability insurance policy with Penncorp. He was entitled to be paid under the policy at the rate of $3,000 per month, if he was unable to work as a bricklayer for two years from the date of his disability, and thereafter if he was unable to work at any occupation for which he was "reasonably suited by education, training or experience". Initially Penncorp made monthly payments to him under the policy from the date that he applied for benefits in January 2005 until July 22, 2005. Avelino commenced an action against Penncorp on July 11, 2007. In September 2011, Penncorp made a lump sum payment to him, which resulted in his being paid for two years until January 2007. Penncorp paid nothing for over six years. They paid nothing beyond the two years to which he was entitled to be paid under the policy, as a result of his being unable to perform the occupation of bricklayer.

The most-consulted French-language decision was Mailhot c. R. 2013 QCCA 870

1. Le requérant se pourvoit contre un jugement rendu le 21 mars 2013 par la Cour du Québec, chambre criminelle et pénale du district de Longueuil (l’honorable Claude Provost – le juge), qui lui impose une peine d'emprisonnement ferme de 12 mois au lieu et place d'une peine d'emprisonnement de 12 mois avec sursis selon la suggestion commune des procureurs.

2. L'intimée appuie cette démarche étant d'avis, tout comme le requérant, que la suggestion commune était raisonnable et que le juge ne devait pas l'écarter.

On May 1^st, a Texas law student uploaded the specs for 3D printing of a single-shot pistol to the web – specs that were downloaded over 100,000 times before the U.S. State Department asked that he remove them from his site. That same day, May 9^th, U.S. President Barack Obama issued an executive order “Making Open and Machine Readable the New Default for Government Information.”

The juxtaposition highlights how open data efforts are generally considered contributions to freedom of information and the advance of human liberty, but occasionally thought of as dangerous incursions into privacy or threats to public safety.

You might recall the last time guns and open data shared the headlines south of the border. Shortly after the tragic shooting events in Newton, Connecticut late last year, a newspaper serving suburban communities just outside New York City decided to publish on its website a map of gun permit holders. As you might guess, this caused a bit of an uproar notwithstanding that the map was built on public information, information that had in fact been published by the same newspaper in 2006 (albeit without mapping or precise street addresses).

If a little knowledge is dangerous…

Data, information and knowledge are not the same thing. But we need data to generate information and information to develop knowledge (and we can also hope that knowledge will mature into understanding and then wisdom).

For any in possession of the underlying elements, we would generally consider it virtuous, and often necessary, that such data, information and knowledge be shared so that others might benefit. There may well be points where we can agree that too much information has been shared or that some data is better kept private, lest the cost or harm outweigh the public interest in dissemination, but current trends are decidedly against the gatekeepers and in favour of putting more out there.

Depending on your worldview, you may even agree that the “take the bad with the good” ship sailed a long time ago. After all, the option of hanging about Eden has been off the table since Adam and Eve ate from the tree of knowledge of good and evil, so how much worse can it get? Or consider the tales of Prometheus and Pandora, to whom mankind is said to owe thanks for civilization, suffering and hope.

Open courts, open access and equal justice

Against the book-ends of the dawn of man and the view of some libertarians who think it’s important that we be able to print our own guns, let me get to the point. Our legal system and system of government requires that the creation and application of laws take place out in the open. Our courts must be seen to apply the written law and (in the common law system) the rulings of superior courts. The law and those rulings must be available and accessible to all if we are to benefit from equal justice, but often this does not occur.

Many private acts and regulations of legislatures are not easily found, and many judgments are not released for publication or are only released for publication by some. This is a serious problem. To function in a fair and equitable manner for all, our system requires complete transparency as well as free and unimpeded access. This is not achievable if a judgment is only accessible through the physical court file or through a commercial service or if a province does not publish private acts of their legislature alongside public acts.

The problem is more acute in some provinces, some courts and in some legal domains (notably, family law) than others. It is also problematic among under-resourced administrative tribunals struggling to handle volume, official languages requirements or other challenges that impede their ability to facilitate free and open access. When this information is not accessible, equal access to justice is not achievable.

We already chose “open” over closed

A CanLII search for the phrase “open court” turns up over 2,700 rulings spanning every federal, provincial and territorial jurisdiction, within which you will find judges, human rights adjudicators and others acknowledging that our system holds out openness as a fundamental principle.

Openness is not absolute and where courts and tribunals are concerned, for example, about privacy issues, they have tools at their disposal. I touched on this in a post last year and many people weighed in with excellent comments. Whether through anonymization or simply through not including as much personal detail, judges and adjudicators can take positive steps to make things a little less messy. A 2005 protocol of the Canadian Judicial Council provides guidance (PDF) as does the Office of the Privacy Commissioner of Canada (PDF). Importantly, each document assumes publication and neither recommends limiting access as a means of limiting negative impacts on litigants.

There is and there has always been a price to pay for open and free access to information.

From the tree of knowledge, to the gun permits to your divorce proceedings, opening up access to information can be messy and dangerous, but we have accepted it as necessary to promoting knowledge and understanding and to safeguarding liberty. This is a foundational principle of our society and our system of justice so we should accept nothing less than free and open access to the law from our legislatures and courts as we have already decided to pay the price.

As the announcement says:

This comes at crucial time, when enrolments in American law schools are sharply down due to decreased demand for graduates. Opportunities for new graduates in Canada are decreasing, and many competent graduates cannot even find articling positions. Yet, we are seeing the creation of new law schools in Canada. There are many challenges and opportunities ahead for legal education in Canada. Dean Feldthusen has kindly agreed to talk about these issues, as he retires from the deanship of one of Canada’s leading schools.

If you're interested in this hot topic and are in the area this coming Monday, drop by to help explore the matter. The relevant data is as follows:

Date: Monday, May 27, 2013
Location: Gowling Lafleur Henderson LLP Board Room
Address: 2600-160 Elgin Street, Ottawa, ON, K1P 1C3
Time: 7:00 – 9:00 pm
Cost: $35 + HST, $20 + HST for students.
(Wine and hors d'oeuvres will be served)
Register: couch@couchichinginstitute.ca
Or call: 1-866-647-6374

At the Canadian Association of Law Libraries Conference earlier this month, there were plenty of discussions about eBooks. A roundtable discussion that was blogged about, a session that included Bess Reynolds (author of The Challenges of E-books in Law Firm Libraries), and many chats with vendors and colleagues.

Flexibility is key to dealing with technology changes. Legal publishers are finding new delivery models for eBooks. Some are investing in apps, some in sharing tools, and all are looking for ways that will work best with their customers. I am happy to work in a market where the focus is on partnerships between vendors and clients for the benefit of both.

One publisher that has a new focus on the legal professional market is Emond Montgomery. Their approach to eBooks is useful for law firm librarians who are struggling to find ways to deliver eBooks with a 'one title for many potential users' model. Emond's eBooks can be purchased as unrestricted PDFs for Intranet hosting. The model is a license for a one time purchase and the title becomes available to anyone in the organization – just like a print publication. Emond is also offering the traditional model for eBook purchases as well, a PDF with digital rights management that restricts it to one user's devices. Emond is not specifically advertising this flexible eBook purchase option on their website.

Conversations with vendors at conferences are extremely useful. It is certainly a reminder that we can be flexible.

Could it be that a community is also what it takes to put the legal profession in a position to flourish?

Slaw.ca founder Simon Fodden, in a background paper prepared for the CBA Legal Futures Initiative, suggests that the lack of a communal sensibility could be one of the reasons the profession is such a slow-turning ship.

That lack is both top-down and bottom-up. Inertia is found at the top in the country’s multiple jurisdictions.

“Broken into jurisdictions and corresponding regulatory societies, the Canadian profession lacks a strong national authority, and consequently the ability to move in bold directions as a whole in the way that England and Wales appear to have done, with the introduction of their Legal Services Act, for example,” Fodden says.

At the base, it comes from the fact that every lawyer, whether sole practitioner or associate – or partner – in a big firm, essentially works for him or herself. Fodden quotes author Mitch Kowalski, who has argued that the partnership model is doomed to fail, as saying, “In a law firm, lawyers go out and do their own thing in their own self-interest … the short-term goals of individual lawyers do not automatically lead to the long-term viability of the firm because individual lawyers do not care what happens to the firm after they leave.”

Finally, he points to a problem that has shown up in other research done for the Futures initiative – there’s very little reliable data about the Canadian legal market. “No national body (indeed no organization of any purview) provides data about the market, its size, its makeup, who is spending what on what services, and who is profiting.”

Conservatism in the profession – in which all of the above play a role – is one of four vectors of change Fodden identifies as affecting the legal industry (along with globalization, the economy and technology), and is the only one over which lawyers themselves have some degree of control. While it wasn’t the focus of Fodden’s paper, it’s worth taking a moment to lift the idea out and study it a bit.

There is no communal understanding or awareness of who/what/why we are as a profession, no good data on the market or the players in it. If at the individual and jurisdictional level everyone just goes madly off in all directions, it is difficult, as Fodden says, to make “bold” plans involving the profession.

It may sound counterintuitive given the impact globalization is having on trans-national borders, but perhaps it’s only by creating a community to nurture awareness that we can send a strong Canadian legal system into the world.

Got a better idea? Join the conversation. #cbafutures

Last week Ryan received the word that the Law Society had finally deemed him of good enough character to be admitted to the bar. 

According to Ryan's lawyer, the crucial piece of evidence this time around was a psychiatric assessment which found that Ryan's prior "misconduct" was out of character with how he conducted both his personal and professional life. Ryan also has been doing a lot of volunteering lately and submitted several character reference letters.

Ryan writes the bar exams in June and plans to open a criminal law practice once he is called to the bar.

So, three years after his struggle began it appears that Ryan Manilla will finally become a lawyer.

Here are excerpts from the most recent tips on SlawTips, the site that each week offers up useful advice, short and to the point, on technology, research and practice.

Technology

It is costly to replace the cartridges on laser and inkjet printers. You can save money by printing in draft mode, which uses a lot less ink. In most cases, you will probably find draft mode printouts are acceptable. Try printing in draft mode, and if the bulk of your printouts are fine, consider setting your printer…

Research

Watch the Clock
Shaunna Mireau

Despite discussions about alternative fee arrangements and the changing times for the business of law, many clients and law firms still deal with compensation for legal work based on the billable hour. One thing that goes hand in hand with that are billable research hours, and the costs for services used that clients pay in disbursements. Today’s tip is for…

Practice

Dropbox and the Paperless Office on Steroids
Garry Wise

Have you ever been at court or a critical meeting and wished you had a document with you that was still tucked away at your office? Here’s a tip that will ensure you always have every document in your client file handy, wherever you are. Copy your entire client folder toDropbox (or Google Drive) the day before any court appearance or other major event. Your client folder will then be available to you remotely, via the Cloud, if you need to check any documents that you left behind.

Touchscreens have made a difference. Until fairly recently, the assumption could normally be made that people would provide input to their machines using a keyboard or a mouse. But not now.

The people have spoken: we want touchscreens. Touchscreens more than justify the disruption they have caused. We need calm too, though, and that's still a work in progress. This posting reviews some recent developments on the software standardization front concerning "pointer events" and "touch events".

Background

Touchscreen technology has actually been around since the 1960s. A great review of the history is available in Bill Buxton, "Multi-Touch Systems that I Have Known and Loved" (19 March 2013) (billbuxton.com).

Displaying a keyboard on a touchscreen is not the most disruptive thing. Indeed, that's more or less only the tactile equivalent of speech-processing software at the spoken-alphabet only level. It's the pinching, flicking and so on that's new.

Making things work

To understand how such things work–particularly in connection with websites–we would normally start with the HTML5 documentation (w3.org) and its section 6.1.6: Events. Section 6.1.6.2 lists the event handlers. These include oninput, onkeypress, onkeydown, and onkeyup. They include onmouseup, onmousedown, onmouseout, onmouseover, onmousemove, onclick, ondbleclick, ondrag, ondragstart, ondragover, and so on. What we don't find are the touchscreen gestures.

There's nothing about them in the DOM documentation or the Javascript documentation either.

The current version of the "Document Object Model" is DOM4 (w3.org). We say we're currently at level 4. The older levels are described in "Document Object Model (DOM) Technical Reports" (w3.org). Events are discussed in section 4. It's a pretty high-level discussion, not obviously device specific.

Javascript (ECMAScript) is similarly not device specific in any obvious way. The current standard is ECMA-262, 5.1 Edition (ecma-international.org), and the word "event" only appears in the rather generic description of web scripting in section 4.1.

Apple

So where's the documentation for gestures? Well, in the absence of standards, we have to look to the device manufacturers and the browser people. The four big browser families, according to Wikipedia, are "WebKit" (Wikipedia), used in Safari; "Blink (layout engine)" (Wikipedia), a 2013 fork of WebKit used in the newest versions of Chrome and Opera; "Gecko (layout engine)" (Wikipedia), used in Firefox; and "Trident (layout engine)" (Wikipedia), used in Internet Explorer.

In the WebKit world (which at that point included both Apple and Android), the big event was "Added interfaces for touch event support in JavaScript" (11 Dec 2009) (webkit.org). Now, there's also the "Safari DOM Additions Reference" (apple.com), particularly in the following two sections: "TouchEvent Class Reference" (apple.com) and "GestureEvent Class Reference" (apple.com). As noted in the first of these, "TouchEvent objects are combined together to form high-level GestureEvent objects that are also sent during a multi-touch sequence."

There is also a helpful discussion of how to put it all together in the "Safari Web Content Guide" (apple.com), particularly in the "Handling Events" (apple.com) section.

Android

As noted, Android was part of the WebKit world until the very recent fork to Blink. JavaScript support in WebKit was noted above under the "Apple" heading.

In other respects, the normal starting point for developers would be to download the Android software development kit (SDK) from http://developer.android.com/sdk/, and to check out the Android Open Source Project website: http://source.android.com/. An additional interesting perspective on the developer world-view is provided by "Using Samsung Emulators for Android Application Development" (24 May 2011) (samsung.com).

There are gentler introductions available elsewhere for beginners. Check out the Android Developers blog (http://android-developers.blogspot.ca/ and the Samsung "Technical Docs" (samsung.com). With respect to touchscreens, I recommend starting with "Touch Mode" (December 2008) (android-developers.blogspot.ca). This explains how touch mode contrasts with trackball mode, navigation mode and keyboard navigation. Then, "On-screen Input Methods" (21 April 2009) (android-developers.blogspot.ca) explains how the Input Method Framework (IMF) can be used for such things as software keyboards. "Creating an Input Method" (27 April 2009) (android-developers.blogspot.ca) illustrates how the SoftKeyboard sample code in the SDK can be changed to create other input methods. Another helpful article on this topic is "Implementing a custom input method" (23 January 2013) (samsung.com).

Finally, "Gestures on Android 1.6" (5 October 2009) (android-developers.blogspot.ca) introduced the Gestures Builder. As noted above, the WebKit-JavaScript interface followed soon after. A more recent introduction has also been provided in "Gestures in Android" (4 April 2012) (samsung.com).

JQM, Microsoft and the W3C

Still pretty complicated, right? As I noted in a previous posting, jQuery can help to fill the gap. In particular, there's jQuery Mobile: Touch-Optimized Web Framework for Smartphones & Tablets. The list of "jQuery Mobile Supported Platforms" (jquerymobile.com) doesn't seem to leave much out. The "Events" demo (jquerymobile.com) lists touch events (tap, taphold, swipe, swipeleft, and swiperight); virtual mouse events; orientation change event; scroll events; page load events; page change events; page transition events; page initialization events; page remove events; layout events; and animation events.

The W3C very recently gave us a standard, "Touch Events version 1" (9 May 2013) (w3.org). It lists the following touch events: touchstart, touchend, touchmove and touchcancel. It has been implemented on Firefox. See "Touch events" (mozilla.org).

One should note that the "Touch Screen" specification features prominently on the "Web Events Working Group Patent Policy Status" page (w3.org), where a number of patent claims by Apple are noted. As one might imagine, Apple's actions have been commented upon. Haavard (whose views "do not necessarily represent those of Opera Software") was early off the mark, with "Apple using patents to undermine open standards again" (9 December 2011) (opera.com).

Meanwhile, Microsoft was working on a different model, described in some detail in Scott Gilbertson, "Give the Web the Finger With Microsoft's Proposed 'Pointer Events'" (February 2013) (webmonkey.com). On the same day that "Touch Events version 1" became version 1, the W3C also published Microsoft's proposal as "Pointer Events Candidate Recommendation" (9 May 2013) (w3.org). According to Gilbertson, the goal is "to provide a unified model for dealing with all the various input devices on today's web, namely, the mouse, the stylus and the finger."

Earlier, the jQuery blog had featured a very thorough posting by sgonzalez, "Getting Touchy About Patents" (10 April 2012) (jquery.com). (It will be obvious how much I have relied upon this posting in preparing this note.) The posting makes the following statement, apparently on behalf of jQuery: "Regardless of which model the W3C chooses to pursue, jQuery is dedicated to filling in the gaps, just like we do for other events such as submit and change. We think the pointer event model is easier to use and more future-proof, and we hope that it can be standardized, even if Touch Events are standardized as well. … We would like to publicly call upon Microsoft to submit a proposal to the W3C for Pointer Events."

And Microsoft did exactly that. Jacob Rossi, "W3C Transitions Pointer Events to Candidate Recommendation" (9 May 2013) (msdn.com), writes "This fast 5-month progression from First Public Working Draft to Candidate Recommendation is a mark of the effective collaboration between Microsoft, Google, Mozilla, Opera, Nokia, jQuery, and others to help sites take advantage of new interactive hardware on the Web."

It will be interesting to see how all of this continues to develop in the months and years ahead.

After the tort litigation has concluded, the time for pursuing an LTD claim lapses. The client then alleges that the lawyer was supposed to be representing her with respect to pursuing the claim for LTD benefits. The lawyer asserts that dealing with the LTD insurer was never part of the retainer, and points to the written retainer letter, which refers only to the tort and accident benefits claims.

Can the lawyer be found to have been retained to handle the LTD claim? LAWPRO claims counsel Yvonne Diedrick warns that the answer may sometimes be yes.

Not all retainers are in writing, and there is no reason why a lawyer and client could not agree to a change in the retainer without putting that change into writing. The danger for lawyers lies in situations where the client assumes (mistakenly) that something the lawyer has said or done amounts to an agreement to expand the retainer.

Diedrick points out that the LTD benefits example cited above is only one of many possible scenarios in which a client can misunderstand the scope of a retainer. For example, corporate lawyers who never litigate might discover that a client has assumed that they will handle litigation arising out of a corporate transaction; or a client working with a lawyer to resolve a return-to-work issue might assume that the lawyer will also take responsibility for filing an action against the employer or against a benefits provider.

In the previous (December 2012) issue of this magazine, claims counsel Jordan Nichols explained how careful management of the retainer process can help lawyers avoid communication-based claims.

Diedrick recommends that, in addition, lawyers revisit the scope of the retainer with the client when appropriate. When might a review of the retainer be appropriate?

Sometimes the unexpected expansion of a retainer arises when a new issue emerges and the client brings that issue to the attention of the lawyer – whether or not the lawyer commits to acting on the new information. In the personal injury example above, the client presumably told the lawyer that she’d received some kind of notice of a change to her benefits, and asked the lawyer to do the favour of forwarding the medical report. In a situation like this, a useful approach might be for the lawyer to confirm to the client (in writing) that the report has been sent, and in that communication, to include a reminder that the lawyer has not been retained to handle the LTD issue. Should the client wish for the lawyer to act in this regard, the lawyer may request additional written instructions.

Of course, a lawyer cannot anticipate every possible incorrect assumption that a client might make. It would be going much too far to suggest that any communication of new information from any client should prompt a restatement of the terms of the retainer, or to suggest that any of the above examples mean that the lawyer has been negligent. We’re simply suggesting that maintaining good general two-way communication throughout the course of a matter can reduce the potential for misunderstandings. It can also help to occasionally consider the professional services you provide from perspectives other than your own. Is there anything you’ve said or done that might lead a client (or a third party) to assume you will be performing work you have not agreed to do? You may think it’s obvious that, as an IP specialist, you aren’t thinking about the client’s tax exposure or franchise disclosure obligations… but to some clients, a lawyer is a lawyer. Be clear.

This article by Nora Rock, communications consultant & policy analyst at LAWPRO, and Yvonne Deidrick, claims counsel at LAWPRO, appears in the May 2013 edition of LAWPRO Magazine.

Each Monday we present brief excerpts of recent posts from five of Canada's award-winning legal blogs chosen at random* from forty-one recent Clawbie winners. In this way we hope to promote their work, with their permission, to as wide an audience as possible.

This week the randomly selected blogs are 1. Legal Post Blog 2. Thoughtful Legal Management 3. Youth & Work 4. All About Information 5. ABlawg.ca 

Legal Post Blog
Chief legal officers not so spooked about social media risk

A survey by the Association of Corporate Counsel reveals an interesting disconnect between top in-house lawyers and outside law firms on the significance of social media and anti-bribery laws. It has become common for law firms to publish client bulletins and conduct seminars for clients on the legal issues raised by social media and new anti-corruption statutes. Yet the issue doesn’t seem to be top of mind for the chief legal officers or CLOs at Canadian corporations…

Thoughtful Legal Management
Be a Doer not a Procrastinator!

Over on Small Firm Innovation, Gwynne Monahan has posed the following challenge: Write a post that describes what quick, uncomplicated, untechnological habits or practices make all the difference to your practice, in 100 words or less. OK…nothing like a challenge. So here goes…

Youth & Work
No Wage Ghetto: Unpaid Internships in Ontario's Retail Sector

The growth of unpaid internships in Ontario's labour market is alarming. Traditionally, the highest incidents of illegal unpaid internships have been found in the glamor industries (i.e. magazine publishing, public relations, media, and fashion), but increasingly we're seeing a creep of these positions into both low-wage (i.e. hospitality, retail) and high-wage sectors (i.e. law, health-care).

All About Information
Government’s collection of census information does not breach Charter

On May 2nd, the Court of Appeal for Saskatchewan held that the federal government does not breach section 8 of the Charter by collecting census information under threat of prosecution.

ABlawg.ca 
Intersection Between Different Legal Areas

Case commented on: Basha v Lofca, 2013 ABQB 159. It is quite common for certain legal areas to intersect with others in cases that come before the courts. In the recent Alberta Court of Queen’s Bench case of Basha v Lofca, this intersection arose within the areas of immigration and family law.

In Basha, the Court had to decide whether a provision in a family court order requiring that three children not be removed from Alberta or Canada could block a removal order issued under the Immigration and Refugee Protection Act, SC 2001 c 27 (IRPA).

Now in it's third year, LawTechCamp is scheduled for June 8, 2013 in Toronto. The panels this year will again focus on some of the cutting-edge developments in the intersection of law and tech, and brings in several speakers from outside of Canada. Here's a sampling of what you can expect:

Due diligence is one of those things that both junior lawyers and clients hate equally. It's also one of those areas highly suitable for automation. Noah Waisberg and Alexander K. Hudek of DiligenceEngine will describe machine learning and the opportunity it affords to lawyers.

Sarah Glassmeyer of the Center for Computer-Assisted Legal Instruction (CALI) will expand on digital publications and the implications for legal research.

James Peters of LegalZoom, Adam Ziegler of Mootus, and Josh Kubicki will discuss the larger disruptions of technology to the economy as a whole, and how start-up companies deal with daunting regulations.

A panel consisting of Mitch Kowalski, Venk Chandran, Bill Kapralos and Lorene Nagata will explore how legal staff can be better engaged using game thinking and game mechanics.

Other speakers and panels are still being finalized, but it's already clear that there are some specialized insights here which the entire industry could use.

The venue this year is smaller and the schedule shorter to allow for a more intimate setting and greater cross-pollination. Unfortunately it also means that tickets are likely to sell out, so advance registration is strongly recommended.

The press release follows:

Technological and business innovations are pushing industries worldwide to become more efficient and effective. Unfortunately, the legal industry has yet to modernize. LawTechCamp was designed to address this problem and to identify ways of moving forward by bringing together leaders in both the legal and technology industries. The conference examines the intersection between law and technology and provides a space where conversations about their intersection can take place.

The third annual LawTechCamp will take place on June 8th in Toronto at BNOTIONS office on Front and Jarvis. The unconference will bring together thought leaders for a half-day forum on in the intersection of law and technology. Guests will have the opportunity to hear from established industry leaders from CALI to LegalZoom, recent success stories like Clio and Mootus, and the next generation of startups that are beginning to gain traction in the marketplace.

LawTechCamp will extend the conversation beyond the scope of the unconference by partnering with digital media experts thirdocean to create a series of interviews to post online. Lawyers will be able to earn CPD hours while challenging the underlying assumptions of how technology can shape the practice of law. Topics for discussion will be as diverse as how technology can make a law practice more efficient and effective, to how a Toronto startup is bringing the lessons learned from crowdsourcing to the world of litigation funding.

This year’s half-day LawTechCamp will be punchier, more compact and personal. The more intimate setting will allow guests and presenters to network more effectively, and also for panels to be more evenly balanced between audience and presenter. As a result of LawTechCamp’s focus on engaging with its guests, registration is limited and is expected to fill very quickly. Tickets are currently on sale for $25.00 and are expected to sell out. To reserve your spot at the conference, visit lawtechcamp.com.

 

Summaries of selected recent cases are provided each week to Slaw byMaritime Law Book. Every Sunday we present a precis of the latest summaries, a fuller version of which can be found on MLB-Slaw Selected Case Summaries at cases.slaw.ca.

This week's summaries concern:
Courts / Criminal Law / Indians, Inuit and Metis / Customs / Young offenders:

R. v. A.A.Z. 2013 MBCA 33

One of the conferences I go to for a quick and painless technology update is Computers in Libraries (CIL) held in Washington, DC in the spring. I first came to it in 2000 when a friend of mine loaned me her press pass for the last day of the conference. At one of those sessions I was pleasantly surprised to learn about virtual reference service at Northwestern University Library, only a few miles from where I was working at the time in Chicago. I was hooked and have been to almost every CIL since then. 

After I retired, however, I wasn’t on the CIL email list any more so lost track of the exact conference dates. So I was grateful when one of my DC colleagues sent me the link for a free exhibit pass to the 2013 conference held April 8 through 10. After she also sent me the link to the three keynote speeches, I decided to combine an afternoon at the exhibits with viewing the streaming video feeds of those speeches. I was hoping for a big picture update and spring tune-up. I got some of what I wanted, but not everything.

CIL 2013 was the 28^th annual conference put on by Information Today, Inc., a major publisher of books and magazines about information science and the use of computers in libraries. Information Today also presents a variety of conferences on a variety of related subjects and in a wide range of venues. This year’s CIL drew 1,423 participants from 48 states and 13 countries, however there were 150 fewer government librarians attending, probably due to budget constraints. There were over 50 exhibits in the large and well laid out exhibit hall. I was able to cover the exhibit hall on Monday afternoon and also attended one of the many 15 minute Cybertour talks given there.

But I was most intrigued with the opportunity to view the keynote speeches at home for free. The Monday morning speech by Brent Leary, co-founder and partner in CRM Essentials was titled Evolving Community Engagement: What Would Amazon and Google Do? He has both an accounting degree and an MBA in Information Management and consults with major companies. His main point was that people buy because of good experiences with vendors. This does not have to be a personal experience anymore as virtual services, like Amazon, are winning over customers. He also used examples of the services provided by Zipcar and the Tie Society. This service model, based on data analysis, efficiency and customer service, can and should be used by libraries and other public services too. You can view this video yourself by following the link above.

I skipped the Tuesday morning presentation by Storm Cunningham, the CEO of ReCitizen, on Libraries as Community Revitalizers and viewed it later. It is well worth your time to view it at the link above. Then on Wednesday morning I hit a major snag. I had been looking forward to viewing the presentation by Daniel Rasmus, an author and futurist, on Uncertainty & Imagination: Evolving Libraries Through Technology. Unfortunately after the first ten minutes or so, the audio feed deteriorated so much that I could only get a small portion of each sentence. Other viewers were commenting on this as well so I knew it was not just my problem. I kept on listening to the entire presentation, hoping the feed would improve, but it did not.

In hind sight I should have given up sooner because a few days later I was able to listen to the entire presentation and view the power point slides as well. Rasmus first stated that he is actually an anti-futurist because he does not predict the future, but rather expores scenarios of different future outcomes. He also proposed a retail model for libraries since they are competing with online providers such as Amazon, Half Price Books, Netflix and Google Books. He urges us to not think about the future in a linear way. Following the scenario process, one can identify scenarios and possible trends and follow them out in a range of possible ways they may work. I recommend viewing this video too.

My experience with virtual conference going was not exactly what I had planned. I wasted some time due to faulty technology, but when I was viewing the videos I was able to concentrate more fully and take good notes. And, of course, I can go back and view some parts again if I wish. Since I did get an onsite experience with the exhibits, I also realized that I would miss the networking and social aspects of an entirely virtual conference. However in these days of disappearing travel and training budgets, to be able to sample even a small part of a good conference for free is a major plus. I commend Information Today for making these videos and a variety of Powerpoint slides freely available and I urge those interested in these topics to take advantage of their availability.

For fun, most of the time — as anyone who lives near a school playground will know. That blast of raw sound, bigger than a shout, less prissy than a sung note, pours energy out of us in a way that demands the world take notice. And it can feel good, as all that pent up breath sweeps out our petty penned up cares and frustrations.

Sheer fun and the release of frustration seem to be what's behind one particular — communal — screaming fit, known as the Flogsta Scream. Flogsta is a suburb of Uppsala Sweden where a lot of Uppsala University students find it convenient to live. And scream. Because at 10 p.m. every night, windows are flung open, heads stuck out, and student vocal cords shredded with a group scream that lasts four or five minutes. If the Wikipedia entry is to be believed, this bizarre call of the wild has been going on for thirty or forty years.

Here's a video — clearly not taken in the summer — of the Flogsta Scream in action:

The Flogsta Scream isn't the only, or even the most famous, named scream, as it happens. That title, I think, belongs to the Wilhelm Scream. First emitted in 1951 in the film Distant Drums by Sheb Wooley (he of "Purple People Eater" fame), as the character Private Wilhelm is dragged under by an alligator. This short male blast has been used more than 200 times in movies since then, having become an inside joke in the film industry. Here's a twelve-minute video that cuts together clips of the Wilhelm Scream from 152 movies.

Somewhat less renowned is the Howie Scream (which also goes by a host of other names, among which are "Man, Gut-wrenching Scream And Fall Into Distance" and the onomatopoeic "Youraagh." This same extended yodel of terror has been used a great many films, as well, as a video compiling clips from twenty of them shows.

Welcome to sixth issue of the Victims of Crime Research Digest which is being released during the eighth annual National Victims of Crime Awareness Week (NVCAW) (April 21-27, 2013). The theme of the 2013 NVCAW is 'We All Have a Role.' This theme recognizes that criminal justice professionals and volunteers play a crucial role in reaching out to victims, that all levels of government play a role in reaching out to victims, and that all Canadians can play a role in reaching out to victims through their support and understanding.

The articles in this issue all touch on the many different services that are available, or are being developed, to assist victims of crime in this country. In the first article, Susan McDonald examines how research is supporting the development of children’s advocacy centres across the country. Melissa Northcott, in the second article, summarizes three studies with survivors of sexual violence that included men in two provinces, women in three provinces, and men and women in the Northwest Territories. The survivors spoke about their experiences with the criminal justice system. In the third article, Katie Scrim and Clarinda Spijkerman employ GIS software to map services for victims in the Northwest Territories with incidents of police-reported violent crime in 2010/11. In the fourth article, Lisa Ha describes the results from a study of the nature of elder abuse cases handled by the Ottawa Police Service. And finally, Marie Manikis describes the enforceability regimes of victims’ rights at the US federal level and in England and Wales.

The Weekly Checklist includes a listing of titles made available by the Parliament of Canada, federal departments, and Statistics Canada to the Depository Services Program for distribution to a network of Depository Libraries in Canada and abroad.

So let me give it another go.

I believe that legal services can be delivered in a more efficient, convenient and cost-effective manner than they’re currently being delivered; not only for the benefit of the public but also for the benefit of lawyers.

I’m a practicing member of the legal profession and I know the profession can do much better. So, if my passion to reform the profession offends people, so be it.

The Rules of Professional Conduct in Ontario require lawyers in this province to deliver services in a cost-efficient, efficient and convenient manner; see Rules 3.01(1) and 2.01(1)(e). Unfortunately many lawyers in this province and in this country believe that since they’re lawyers, they’re smarter than everyone else and if there was a better way to deliver legal services they would’ve already figured it out. Therefore, the current system is already the most cost-effective, efficient and convenient way to deliver legal services – there is no need to change anything.

To many lawyers, anyone who is critical of current legal practice doesn’t know what they are talking about – but more importantly, how dare any commentators suggest that lawyers are not living up to the Rules! Afterall lawyers have taken an oath to follow the Rules, so therefore they always do.

The same logic is applied to commentators who are critical of law societies, bar associations and benchers. Law societies, bar associations and benchers are a special breed – they always do the right thing. How dare anyone be critical of them!

I think we’ve all seen enough bad decisions and wrongdoing by lawyers to understand that lawyers are just like everyone else; we have the same temptations, the same bad judgment and same self-interest to be protected. As lawyers we’re expected to protect the public against the tyranny of over-reaching government, yet too many believe that we and our institutions are beyond criticism.

If we fail to be critically challenge our institutions and ourselves then, to paraphrase Anderson Cooper, who is keeping lawyers and our institutions “honest?”

This lack of criticism has left the profession stale, complacent and unable to manage change – this is bad for the profession and bad for the public.

I told my class at University of Ottawa Law School this past January to always challenge what they are doing, how they are doing it and why they are doing it – and to continually challenge our governing institutions to ensure that the profession remains current and relevant.

Hopefully a new generation of lawyers will undertake and complete the necessary reforms that the current generation has refused to undertake.

Although the proposed provincial laws are similar in spirit because they are subject to the requirements set out in the federal Act, some provinces like Quebec have added their own distinct requirements.

All these provincial retirement plans provide a simple, effective and low-cost way of improving pension coverage for employees of small and medium-sized businesses and the self-employed.

Quebec

On May 8, 2013, the Quebec government tabled Bill 39, Voluntary Retirement Savings Plans Act. If the Bill is enacted, the plan will be mandatory for employers with five or more employees with one year of service. Employers will have two years to implement and offer a Voluntary Retirement Savings Plan (VRSP) to their employees. Employers with fewer than five employees have the option of providing a VRSP, but are not required to do so. This means that, effective January 1, 2014, employers with five eligible employees or more who have one year of uninterrupted service with their employer, and do not have a registered retirement savings plan or a tax-free savings account for which payroll deductions could be made, or a registered pension plan, must automatically enrol those employees in a plan. Once enrolled, an employee may opt out in writing from the plan within 60 days of enrolment. Once an employer is required to comply with this obligation, it must continue to offer the VRSP as long as there are employees enrolled in the plan, even if the number of employees drops below the exemption threshold.

Alberta

On April 18, 2013, the Alberta government tabled legislation to make Pooled Registered Pension Plans available to Albertans. Under Bill 18: Pooled Registered Pension Plans Act, employer enrolment is optional. If an employer offers a PRPP to its workers, the employees will be automatically enrolled but will be able to opt out. Employers that currently offer group RRSPs may switch to a PRPP to reduce administration costs and limit their fiduciary duty. Bill 18 received third reading on May 7, 2013 and is now waiting for royal assent to become law.

Saskatchewan

On April 8, 2013, the Saskatchewan government introduced legislation to create pooled registered pension plans (PRPPs) as a retirement savings option in the province for those employees who currently do not have access to group pension plans. Under Bill 92, An Act respecting Pooled Registered Pension Plans and making consequential amendments to certain Acts, employer enrolment is optional. However, if an employer offers a PRPP to its workers, the employees will be automatically enrolled but will be able to opt out.

British Columbia

On February 28, 2013, the British Columbia government tabled Bill 16, the Pooled Registered Pension Plans Act, which would have allowed provincially regulated employees and self-employed persons in BC to implement PRPPs. As in Alberta, the Bill would have made employer participation in a PRPP optional, and once an employer provided a PRPP, employees would have been automatically enrolled with the right to opt out. However, this Bill died on the order paper when parliament was prorogued to make way for the May 14, 2013 provincial election.

Ontario

A private member's Bill (Bill 50, Pooled Registered Pension Plans Act, 2013) was tabled in legislature on April 10, 2013, to require the Ontario Minister of Finance to introduce a Bill to allow for pooled registered pension plans. The Bill received second reading on April 25, 2013, and was sent to committee for review. However, in the meantime, the Ontario government has stated that it will consult with interested parties to determine how PRPPs should be implemented before introducing its own legislation.

The other provinces and territories have not yet made known their intentions regarding the implementation of a PRPP in their jurisdictions.

Another commonality to all these plans is that employers will not be obligated to make matching contributions. Workers that don't have access to a PRPP because their employer has decided not to implement one will be able to deal directly with a PRPP administrator to open an account, similar to opening an RRSP.

Employers must automatically deduct contributions from the employee's salary based on the rates determined by the applicable legislation.

Employers are not liable for investment decisions or results, benefit guarantees or the administrative burden and costs. Responsibility is limited to establishing the plan (in Quebec, if they employ five or more employees), enrolling employees and deducting and remitting contributions.

PRPPs are to be administered by insurers, trust companies or investment fund managers who must hold an authorization granted for that purpose by legislation or regulation. These plan providers will market their plans to employers. These corporations must hold a license from the Superintendent of Pensions and, in the case of Quebec, the Autorité des marchés financiers. The plans must be registered with the Canada Revenue Agency and, in Quebec, with the Régie des rentes du Québec.

In Quebec, la Commission des normes du travail will ensure that all participating employers that are required to offer these plans to their employees do so in a timely manner.

PRPPs will likely be available across the country by 2015. It is important to realize legislation does not establish pooled plans; rather, it provides a legal framework that allows for their creation. It is up to providers to create and market their plans.

Certainly it seems like a great idea to help Canadians participate in a registered pension plan when their employer doesn’t offer one or they are self-employed, and PRPPs should make the process and administration easy. This might just be the type of lazy investing that Canadians need to add some security to their retirement. It will be very interesting to see the uptake of these plans, both by employers (where they are optional) and individuals. Will employees appreciate them? Will they notice?

But I wonder whether these easy and liability-free plans will discourage employers from offering full-fledged RRSPs to their employees, and indeed, whether they might encourage employers that already offer RRSPs to wind them up and replace them with PRPPs. Employees might not be too impressed, but employers are looking at all their cost-cutting options these days.

Self-employed individuals and other workers who are earning enough that they can afford to put something away for the future will find PRPPs more worthwhile than those who live paycheque-to-paycheque, and mandatory enrolment probably won’t do anything to fix that.

What do you think? Will PRPPs help Canadians save for their future? Or will they be a bust?

A colleague writes of what seems like the perfect storm of open access hitting the students with whom she works…

My students and I publish in the journal Evolution: Education and Outreach published by Springer. Great outlet for our work. But, they just went open access (good).The cost to publish for an author now is $1,600 (bad). For grad students, this is prohibitive. I told my dean and she said there is no money to support grad student publications. That wasn't surprising. Do the math: 60 students times several pubs a year at that cost would be a significant chunk of change. But, more surprising is this journal, which is very good, was now considered by them to be of lesser quality, now that it's a ‘pay to publish’ journal. My students noted that it won't be able to count these pubs towards tenure now. So, what was a good outlet now is ‘tainted.’ So, what we need is not only the business model to change, but attitudes have to change too.

My multi-part response amid an increasingly complicated field of openings…

1. If Springer is going open access, and it does look that way, then it may be better to see your librarian rather than dean about article processing charges (APC), as the libraries will save on subscription fees, and libraries are setting up funds to pay APC. But will those funds cover graduate students, and how many articles a year? So I realize that this is currently a limited approach. Nonetheless, as Springer is one of the big four publishers and thus speaks to a bigger movement, to have students saying “no” to open access at this point, or to imagine that open access or article processing fees instantly discounts the quality or prestige, is something that needs to addressed.

2. Further on this “just say no to open access,” it needs to be recognized that this greater public access is happening on a number of fronts, not least of which is the Canadian Tri-Council research funding agencies declaring a common OA policy for 2014, as well as the recent White House initiative intended to see all federally funded research (following on the NIH requirement dating back to 2008) requiring “public access” of the final, peer-reviewed draft, within twelve months of publication. This access can be achieved by publishing in OA journals, with or without APC, or by archiving the article, wherever it has been published, with more on this below.

3. And on the question of prestige, by any measure, including the ISI Impact Factor, open access, and article processing fees, are not a factor. The highest ranked journal, by Impact Factor, in the field of biology is PLoS (Public Library of Science) Biology. It does not appear in print and has always been open access (with APC of $2,900). While one journal hardly makes the case, Google Scholar’s citation count, as well as a move to “article-level metrics” among journals is pointing to the article's achievement as the measure rather than the journal title. See a Google Search citation counts for articles in Education Policy Analysis Archives for a good example of this. Another relevant point to be made is that open access has been shown to increase readership and citations for comparable work, giving open access journals, in general, an advantage by this measure.

4. Studies of APC and prestige do show that highest APC are levied by the international corporate publishers, such as Springer, while the average for APCs is $900 (Solomon et al.). The majority of the APC journals are in biomedical field , and it is still the case that the majority of open access journals across all field do not charge APC. For example, the Directory of Open Access Journals lists close to 9000 journals by area and includes whether the journal charges an APC or not.

5. In addition, new models are emerging. PeerJ for the sciences charges $99 for life, allowing one article per year (or $299 for unlimited number of articles). They report in Nature that their costs are in the low hundreds per article. SAGE Open’s APC is $99 per article (as an introductory price), with a strong education focus.

6. In the short term, however, the best advice may still be to publish in subscription journals of choice, and take advantage of the journal's author archiving policy (with publisher policies collected in the Sherpa/Romeo database). For example, Elsevier allows for the final peer-reviewed draft to be posted immediately on acceptance, while Taylor and Francis has an 18-month embargo on authors' archiving (although their journals in Library and Information Science have managed to reduce that to immediate posting on acceptance, as became clear after the editorial board of one of their journals resigned last week in protest over the APC).

7. The longer term appears to involve the shift of the current $10 billion or so in publisher revenue from subscription to APC in some coordinated way. The libraries could collectively manage this to ensure that publishing opportunities within all disciplines, from biomedical to philosophy are covered, likely through both a shifting of library budgets and a taxing of grants that allows the grant-rich disciplines subsidize the rest. What I am unsure about is whether this will simply prove an opportunity for commercial and societal publishers to increase revenue (at the expense of investment in the research itself); whether large discrepancies in pricing by discipline and type of publisher will continue; and whether APCs will lead to price-sensitive competition for journal articles costs, disrupting what has has largely been a monopolistic pricing model for subscriptions and now for APC.

8. This formative period makes it hard for graduate students and faculty to figure how best to work within this changing system, but it is ideal time, for the same reason, to look for opportunities to promote greater access to their and others' research, while also showing some vigilance over the cost of this access, so that it is not subject to the excesses of subscription pricing.

Each Thursday we present a significant excerpt, usually from a recently published book or journal article. In every case the proper permissions have been obtained. If you are a publisher who would like to participate in this feature, please let us know via the site's contact form.

STRENGTHENING NATIONAL CAPACITY TO PROSECUTE GENOCIDE, CRIMES AGAINST HUMANITY AND WAR CRIMES WITHIN THE INTERNATIONAL CRIMINAL COURT SYSTEM
Emilie Hunter
in Innovations in Rule of Law, J. Botero, R. Janse, S. Mulle & C. Pratt Eds.
The Hague: The Hague Institute for the Internationalisation of Law & The World Justice Project, 2012

Excerpt: pp. 30 – 31

The [International Criminal Court] Legal Tools Database (LTD) is the largest online library of documents relevant to the practice of international criminal law. Designed by the Office of the Prosecutor between 2003 and 2005, the LTD contains over 57,000 documents, including national legislation, national cases of core international crimes, international cases and legislation, all preparatory works of the ICC, its Statute, rules, regulations, judgments, decisions and orders, and relevant international and regional human rights decisions. Documents can be accessed through a series of “folders” or through an efficient and easy to use search engine, and are provided free of charge to anyone with an Internet connection. In collating and verifying these materials, the LTD provides all national actors with the raw materials they need to inform themselves on core international crime adjudication, in a centralised, stable and trusted location.

The Case Matrix Network (CMN) compliments the Legal Tools Database by providing services to assist in the investigation, prosecution and adjudication of core international crimes. The Case Matrix application breaks down the substantive elements of core international crimes, showing investigators, prosecutors, defence counsel or judges the means of proof that is required for each crime, its contextual elements and specific elements, as well as the modes of individual liability that must be assigned to every individual for every crime that they are charged with committing.

The Case Matrix consists of two analytical digests of the elements of crime and modes of liability required to successfully prosecute core international crime conduct, running to over 7,500 pages. If a prosecutor needs to know the means of proof required to successfully prosecute rape as a crime against humanity, or the recruitment of child solders as a war crime, they can, at the click of a button, view concise analysis of these requirements, as well as the exact paragraphs of previous international and national judgments. The Case Matrix application also enables different users to organise case files where the conduct may amount to core international crimes, testing where evidence is weak or insufficient, in a secure environment. It is designed to strengthen the ability of national actors to conduct investigations and trials for conduct that may fall under the ICC's jurisdiction by empowering the national professionals involved. The Case Matrix is provided free of charge, following the signature of a user undertaking and it does not require Internet access. It is currently used by 125 institutions, including judiciary, prosecution services, defence counsel, government ministries, NGO’s, international and hybrid tribunals.

Core international crime cases consist of a complex web of evidence and materials that link incidents to suspects, victims and witnesses. The Case Matrix helps to organise that evidence and material. But criminal justice systems also face challenges due to the quantity of cases, and failure to comprehend the scale and nature of prosecutions across a country can lead to a number of rule of law issues. Without an overview of open case files, prosecutorial strategies including the prioritisation or selection of cases (according to criteria such as gravity, seriousness etc.) can unwittingly incur selective bias. Due to the expected quantity of open cases, prisons can become over-crowded, suspects can get “lost” in remand and delays can mount up without a clear overview of where the bottlenecks occur. Districts may prosecute particular crimes or ethnic groups disproportionately according to the known facts, requiring a laborious and time-consuming effort to gather statistics that could demonstrate this. The Database of Open Case Files designed by the Case Matrix Network addresses these challenges and has been used in Bosnia and Herzegovina and the Democratic Republic of Congo.

The use of technology-aided tools, as well as the information provided therein, can help overcome the complexity of core international crime cases by providing knowledge directly to national practitioners, within their work environment, on a permanent basis. While empowering and informing criminal justice actors sustainably, this can improve the quality and effectiveness of their work and reduce unnecessary repetitions and mistakes, thereby contributing to the reduction of costs associated with criminal justice based on international human rights standards.

[The memosphere strikes again! Between submission and publication of this column, Omar Ha-Redeye posted a very informed and insightful Slaw entry entitled, "Access to Justice Starts With Legal Tuition". Playing Bell to my Meucci (that reads rather strangely), Omar covers much of the same analytical territory as me—with the bonus of journalistic rigour. Still, I like to think that both posts deserve your attention.]

A lot happens in a year, and the Quebec student protests that dominated the news last spring are a distant memory now. The students went back to school, Quebec elected a new government that swiftly imposed a tuition freeze, and the once boiling issue of access to higher education was reduced to a slow simmer in la belle province. But the issue trickled back into the national consciousness this April when the Alberta government—typically yin to the Quebec government’s yang—imposed a tuition freeze of its own.

Alberta’s Advanced Education Minister announced that a one-year tuition freeze would make "education more accessible for our students, particularly from low-income families", while overlooking that the estimated $16.5 million revenue freeze followed a $147 million cut to operating grants for the province’s post-secondary schools. Nonetheless, Alberta joined Newfoundland, Quebec, Manitoba and Saskatchewan as the only provinces with tuition freezes. BC once instituted and maintained a multi-year tuition freeze, but since 2005 has limited annual tuition fee increases to 2%. Likewise, Ontario had a tuition freeze until 2006, then permitted annual tuition fee increases up to 5% (8% for graduate schools), and now limits increases to 3% (5% for graduate schools).

Unsurprisingly, the patchwork of provincial tuition regulations has led to significant post-secondary tuition disparity across Canada, particularly among law schools. For example, first year tuition for law school is about $9,000 at the University of Victoria, compared to about $29,000 at the University of Toronto. Fees can even vary wildly within regulated provinces because of odd timing and exceptions. Thompson Rivers University Law—located in Kamloops, BC and established in 2011 as the first new Canadian law school in 33 years—charges about $17,000 in first year tuition because it is exempt from government limits. That is roughly 55% more than UBC Law, and 90% more than UVic Law.

It is no wonder, then, that many law schools lament the competitive disadvantage that tuition regulation imposes on them. Less tuition revenue means less money to hire and pay faculty, to acquire library holdings, to maintain and build new facilities, etc. And the competition among Canadian law schools for top rankings, top students, endowment support, and the good graces (i.e. donations) of large national firms is fierce. So every dollar counts. What is a law school with regulated tuition to do?

A law school with low regulated tuition should benefit from its price advantage over competitors, particularly in the face of a grim job market for graduates. But there is scant evidence that students are choosing to attend specific Canadian law schools on the primary basis of affordability. Instead, reputation and diploma marketability seem to be the main drivers of law school selection. And nothing bespeaks a good reputation more than a hefty tuition fee.

Tuition regulations permitting (or notwithstanding in the case of the University of Toronto and a few others), Canadian law schools appear to charge however much the market bears. A brand new unregulated school like TRU Law can thus afford to charge about twice the amount in tuition fees as a well-established and regulated school like UVic Law. If all current law school tuition freezes and regulations (i.e. price controls) were lifted, it is easy to conceive of rapid and substantial tuition hikes from coast to coast.

Can a law school with low regulated tuition at least boast greater student diversity? Canadian law schools have certainly made concerted efforts over the past decade to ensure that their student population better reflects the ethnic, cultural, and sexual diversity of the society it will eventually serve. The public interest, after all, requires a legal profession that is both competent and diverse. But while law schools have made some significant forward strides in achieving a gender balance and diversifying the ethnic composition of their graduates, it is difficult to believe that they are making any headway on socioeconomic diversity. When the median individual Canadian income is about $27,000 after taxes, a $29,000 price of admission to one year of law school speaks for itself.

Just the path to law school covers some expensive ground. To meet the very competitive standard for law school admission, a typical “pre-law” student must afford the real costs of high undergraduate tuition, enrichment activities, LSAT training, LSAT fees, law school application fees, and the opportunity costs of unpaid internships and volunteer activities that are increasingly vital to a law school application. Only then does the student arrive at a three-year commitment to $30,000-90,000 in tuition (alone) for a law degree that provides no guarantee of gainful employment. Financial aid regimes have ramped up to soften some of the skyrocketing costs of a legal education, but the decision to pursue a prohibitively expensive law degree is made long before the realistic prospect of an offsetting bursary or scholarship emerges.

In the United States—where tuition at top-tier law schools is universally unregulated and commonly exceeds $50,000 per year—the class of 2016 is expected to graduate into a collapsed job market with average personal debt upward of $215,000. An effect, then, of tuition deregulation and climbing law school tuition fees is to create an increasingly narrow social category of student who can afford the professional gamble of a law degree. And for a slew of reasons that I will explore in Part 2 of this column topic, a more elite class of law school graduate spells trouble for the Canadian legal profession’s ability to contend with the current crisis of unequal access to justice.

All of these giants of industry essentially chose irrelevance by stubbornly insisting on doing what they did best. “It’s a lazy but common analytical error to confuse healthy demand for a product or service with the incumbent providers’ entitlement to supply it,” says Bruce MacEwen, president of U.S. legal consulting firm Adam Smith, Esq.

It’s not just that these and other businesses ignored the marketplace around them, but that they failed to realize that by not adapting to changing market forces, they would “open the door to upstart innovators,” MacEwen suggests in an overview of the U.S. market commissioned by the CBA Legal Futures Initiative.

“I don’t think it’s going too far to say that – judging by behaviour and not intent – we will see some firms acting as if they would prefer to fail rather than embrace change. They may get their desire.”

The legal marketplace is in a transformational phase, largely driven by technology; by increased competition from non-legal professionals; and by clients, with whom the balance of power now rests. Clients today demand value, which MacEwen says can be defined as, “better [and/or] faster [and/or] cheaper” – not necessarily something new, but a demand which law firms can no longer ignore.

“Clients have now had a taste of their ability to get more for less, and they are never going back.”

It’s easy to say in hindsight that Western Union should have taken that meeting with Bell. The CBA launched its Legal Futures Initiative to help lawyers get better information and support – and avoid making those kinds of mistakes. Are there latter-day Alexander Graham Bells trying to call the legal profession? What are they selling?

Don’t put them on hold. Join the conversation. #cbafutures

Visit us at http://www.cba.org/cba/fol/home/default.aspx

Women aren’t leaving legal practice; they are leaving, for the most part, private practice. Does that say something about women? I’m not sure. Does it say something how law is typically practiced in the modern law firm? Absolutely.

My own view of this is that women in legal practice may have intuited what is slowly becoming more and more obvious to the profession broadly – and that is that a billable hours based approach carrying with it expectations of thousands of hours billed each year (and therefore, even more spent at the office) just isn’t compatible with the life many of us imagined, or made for ourselves.

By way of example, I need not look any further than at my own close friends. We are a group of seven women who graduated from Robson Hall in 1992. After our Call to the Bar in 1993, all but one of us went to work in private practice in small, mid-sized and large Winnipeg firms. The seventh went to work with Legal Aid.

Ten years later, in 2003, only two remained in private practice. Two were working in government in policy/management positions; two were Crown Attorneys; and one was employed in a non-governmental organization. Four of the seven were mothers at this point.

Another ten years have passed and now only one of seven remains in a private practice environment. Two are now in senior government positions. The two Crowns are senior lawyers in their offices. One is a full-time appointee to an administrative tribunal and another is a freelance lawyer in non-traditional practice. All seven are raising children.

As a group, we haven’t left the law, for the most part. Each is using her training in one way or another within the legal and governmental sectors; but we’ve mostly left traditional private practice behind us. Why? Our reasons vary, but include:

• Greater challenges and more variety in work;
• Better pay;
• Greater control over schedules; and
• Ability to spend time with family.

Are we all still lawyers? Yes, even those without current practicing certificates. Once a lawyer, always a lawyer (until death or disbarment.) We didn’t leave the law, but we walked away from a way of working that didn’t work for us.

While this little group from Robson Hall do not reflect the experience of all women in law, nor do we exemplify the full range of reasons why women choose to leave private practice, our stories nonetheless illustrate the extent to which private practice is failing to meet the needs of many lawyers.

This isn’t new. It won’t soon go away. It’s not a crisis. But we do need to pay close attention to the reasons why women are leaving private practice and stop assuming that this is nothing more than a “gender thing.”

3-D printers are a disruptive technology, and as with any disruptive technology, the law will have to react to issues that come with it. Possible issues include intellectual property, product liability, and use for criminal purposes.

There has been a lot of negative press lately about using 3D printing to create plastic guns. To me that says more about the US gun culture than 3D printing. Like most technologies, 3D printers can be used for good and evil. And like most new technologies, it will take a while for the real uses to emerge.

Home 3D printers are now available, but we are a long way from having one in every house. They are becoming accessible though – the office supply chain Staples recently announced it will provide 3-D printing services at its stores in Belgium and the Netherlands. Here are some examples of what a basic 3D printer can do.

3D printers have been a boon to engineers and architects, who have used rapid prototyping techniques for many years. This article talks about how Ford uses 3D printing to create prototype metal parts such as transmission parts and brake rotors.

3D printing is being used to manufacture parts with complex shapes. This new more fuel efficient jet engine uses 3D printed metal nozzles that are lighter in weight due to an advanced design producible only on 3D printers.

3D printing also has intriguing medical possibilities. 3D printed body parts – using live tissue – is a real possibility. And it has been used to create relatively inexpensive replacement hands. This video about the Robohand is well worth the 10 minute investment.

The Canadian Intellectual Property Office (“CIPO”) has recently published two notices for patent examiners relating to patent interpretation[i], and in particular computer-related/business method type patents. These notices were released following a 2011 Federal Court of Appeal decision – CIPO v Amazon, 2011 FCA 328 (“Amazon”). In Amazon the FCA instructed the patent office on how to evaluate a patent application to determine the threshold issue of whether it covers patentable subject matter. The FCA held that patent claims must first be purposively construed before one can evaluate whether the claimed subject matter covers acceptable (ie. patentable) subject matter. “Thus, for example, what appears on its face to be a claim for an “art” or a “process” may, on a proper construction, be a claim for a mathematical formula and therefore not patentable subject matter.”

Although both Amazon, and CIPO’s March 2013 notices arose in the context of Amazon’s business method patent, the decision and notices will apply to many different types of technologies. Amazon’s patent dealt with its popular “one-click” online ordering system.[ii]

1. Examination Practice Guidance Respecting Purposive Construction, PN2013-02 (“Notice#1”)

Notice#1 starts with the caveat that purposive construction during “examination of a patent application must take into account the role of the patent examiner and the purpose and context of examination”[iii]. During examination, a patent application is under review and claims may be amended; patent applications (unlike issued patents that have been accepted by an Examiner) are not presumed to be valid. Another significant difference is the fact that courts consider expert evidence filed by opposing sides – an Examiner necessarily considers only the patentee’s side.

Notice#1 instructs Examiners on the step of purposive construction prior to evaluating whether there is patentable subject matter. This is really the only “new” material for Examiners that follows from Amazon. The principle of purposive construction is well established since its acceptance by the 2000 Supreme Court of Canada decisions in Whirlpool and Free World Trust.

Notice#1 refers to the importance of the examiner’s knowledge: “In Amazon FCA it was recognized that, during examination, the necessary foundation of knowledge for performing a purposive construction of the claims is found in submissions from the applicant and the knowledge of an appropriately experienced examiner.” This expertise is necessary when considering the claims in context of the application as a whole.

First – what is claimed?

CIPO re-iterates that, given the well-accepted principles that “a patentable invention is an inventive solution to a practical problem”, the steps for construction involve:

1. identify the problem
2. identify the solution – determine what the inventor has actually in good faith invented, or what the inventor claims to have invented
3. identify the essential element/combination of elements to the solution (not merely superfluous elements)

Notice#1 refers to the overlap of claim construction and “Promise construction” (in a way that the courts have not always explicitly acknowledged) – the problem/solution “identification occurs when construing the promise of the invention (i.e. its utility)”.

Second – is there patentable subject matter?

The Patent Act specifically provides for the types of inventions that may be patentable – basically any products, processes, machines or improvements therein[iv]. At the same time, mere scientific principles and abstract theorems are specifically excluded in the Act.

Notice#1 states that examiners only need identify the problem/solution/essential elements where their purposive construction findings “are relevant to the identification of a perceived defect” (for example on the threshold issue of patentable subject matter).

2. Examination Practice Guidance Respecting Computer-Implemented Inventions, PN2013-03 (“Notice#2”)

Notice #2 is directed at “computer-implemented inventions” which CIPO says “present[] unique challenges”. Notice#2 applies the construction principles of Notice#1 in the specific context of computer related inventions (that are often used in business methods).

Patentable subject matter

In addition to subject matter that is specifically excluded in the Patent Act (mere scientific principles and abstract theorems), courts have interpreted the statutory definition of “invention” to exclude computer programs, artistic works, methods of medical treatment, mere ideas and other inventions that lack “a practical application”.

Notice#2 provides a few central points:

As part of the construction process, the Examiner must determine whether “a claim is defining the whole of the invention, a preferred implementation, or a specific working embodiment”.

Although a patent is not explicitly required to identify the problem and solution, this can be inferred from the context – how the inventors describe the invention, objects, specific problems, needs known or discovered.

Questions to Ask

Examiners should ask:

- is the problem a “computer problem …(i.e. a problem with the operation of a computer)”; this would suggest patentable subject matter that is a combination requiring a computer

• for example is there a problem with a computer chip or component; are there detailed technical descriptions/algorithms
• does the solution overcome computer operation problems – for example with software and hardware
• a computer is essential “Where it appears that the computer cannot be varied or substituted in a claim without making a difference in the way the invention works”

- is the problem not a computer problem (“i.e. a problem whose solution may be implemented using a computer)”

• for example are there no references to computer operational issues; are there minimal technical details
• Examiners must determine if a computer is essential or an “afterthought” – for example is the invention really a mathematical equation that uses a computer merely to expedite

Future developments

The issue of patentable subject matter is timely. On April 15, 2013 the United States Supreme Court heard submissions on whether human genes are patentable products of innovation or unpatentable products of nature. Dr. Watson Crick – one of the discoverers of DNA, opposes gene patenting: “Life’s instructions ought not be controlled by legal monopolies created at the whim of Congress or the courts”[v]. The lower court (minority) found that, as the genes already existed in nature – this was simply “snapping twigs off trees”. Myriad (the patentee) argues that it should be able to patent “anything under the sun that is made by man” and that its work in isolating the human gene is a composition that is the “product of human ingenuity”.

Inevitably, issues of patentable subject matter, particularly in the biotechnology area, engage societal policy issues and often set “grey” boundaries. The Supreme Court of Canada determined in 2002 that one could not patent a higher life form (an altered mouse having cancer genes), however individual cells were patentable (Harvard College v CIPO 2002 SCC 76). Two years later the same court found a patent directed at a modified plant gene was infringed by a farmer who was making the higher life forms (plants) (Monsanto Canada v Schmeiser 2004 SCC 34 at 22-23).

It is important to note that Amazon and the CIPO notices all apply to an Examiner’s review of patent applications. Certainly issuance is a significant first hurdle. It is expected that courts will soon consider these threshold patentability questions in patent infringement/invalidity actions – for example in the area of insurance and financial systems, which should provide further instructions on how to assess patentable subject matter challenges. Canada may soon have its own Myriad case as well.

Each Wednesday we tell you which three English-language cases and which French-language case have been the most viewed on CanLII and we give you a small sense of what the cases are about.

For the week of May 7 – 14:

1. R. v. Duncan 2013 ONCJ 160
   

   5. At heart, Mr. Duncan’s case was unremarkable. A minor alleged Highway Traffic Act offence led to a police-citizen interaction in the parking lot of Mr. Duncan’s apartment building in the wee hours of the morning. A request that Mr. Duncan produce his licence led to an alleged refusal, which led to an attempt to arrest him, which led to a struggle, which was captured on a very poor quality video taken on a mobile phone, at the end of which Mr. Duncan found himself being placed under arrest for allegedly assaulting a police officer. Nothing unusual in all that. The bread and butter of provincial court.

2. Heasley v. Labelle 2013 ONSC 2601
   

   1. The plaintiffs consist of an elderly grandmother, who is 89 years of age named Olive Heasley, and her daughter and granddaughter who have advanced claims under the Family Law Act. Ms. Heasley was struck by a school bus during her morning walk and lost a leg as a result of the accident. All three plaintiffs wish to be present during their discovery to give each other emotional support. The school bus was driven by D. Robert Labelle and owned by 417 Bus Line Limited.

3. York Condominium Corporation v. Superior Energy Management 2013 ONSC 2615
   

   1. The Applicant is a condominium corporation. The Applicant has a property manager that carries out the day to day operations and maintenance of the condominium. The Respondent is a natural gas supplier. In May 2008 a representative of the property manager entered into a fixed-price contract with the Respondent for the supply of natural gas. Unlike regular corporations, where an employee or agent can contract on behalf of the corporation, condominium corporations cannot contract unless there is a resolution of the Board of Directors authorizing (or ratifying) the contract. In this case, the Applicant’s property manager had no authorization and the Board never ratified the fixed-price contract. This application seeks a declaration that the fixed-price contract was void. The Applicant also seeks consequential relief, including damages representing the difference between the price it paid under the fixed-price contract and the price it would have paid if it had entered into a contract with a different supplier.

The most-consulted French-language decision was Syndicat des travailleuses et travailleurs de ADF – CSN c. Syndicat des employés de Au Dragon forgé inc. 2013 QCCA 793

 [6]La justice naturelle oblige-t-elle la Commission des relations de travail, agissant dans le cadre d'une enquête régie par l'article 32 du Code du travail (« C.t. »)[1], à dévoiler à chacune des associations de salariés en cause l'identité des membres de l'autre, information qui est ordinairement considérée comme confidentielle en raison de l'article 36 C.t.? C'est la question principale que soulève le pourvoi. Dans un autre ordre d'idées, ce pourvoi s'intéresse également à la révision d'une décision de la Commission portant sur la conformité d'une adhésion syndicale aux dispositions qui, dans le Code civil du Québec, régissent la validité des consentements.

A recent Swiss case – in the Federal Supreme Court – held that senders of emails have a duty to verify receipt in almost all cases. On the facts of the case, the result may be OK: an agent for a taxpayer emailed its client to warn of a tax filing deadline; the email went astray and the client was penalized. The risk was that of the agent. (It's not a case about the law of agency.)

The case states a general proposition that the risk of non-delivery of an email is always on the sender – because delivery is known to be not thoroughly reliable.

Would this be the law in Canada, or where you are? is that too strong a proposition? Suppose the sender could prove that the email got to the addressee's computer but was filtered out or lost once there. When does the risk (and responsibility) shift to the addressee?

(The questions are the civil side of those I posed last week about whether a regulatory or prosecutorial body could start a proceeding by email notice, without statutory or contractual authorization. Would it be acceptable if the regulator or prosecutor checked to see if the notice of hearing – e.g. – had been received?)

Is it a situation like signatures, where the risk that a signature is forged always lies on the person relying on the signature?

Is it true that the delivery of emails less reliable than that of postal mail, or faxes? Is it sufficiently true that rules of law should be built on that proposition?

Law reform publications are a great resource for legal research. Michel-Adrien Sheppard regularly posts updates on Slaw on the work of Canadian and international law reform agencies. Kim Nayyer has also highlighted the value of law reform publications in legal research.

Canadian law reform agencies produce a range of informative, well-researched publications every year. Although some international law reform agencies overseas now charge a fee for hard copy publications, most Canadian agencies still provide them for free – including postage. Free and low cost access to law reform publications has been possible due to the funding structure that supports most agencies.

In most Canadian jurisdictions, law reform work is funded by grants from the provincial government and the local law foundation. This funding structure recognises the public benefit in having a law reform agency at arm’s length from government. The funding structure also represents a relatively low cost for each person who stands to benefit from law reform. For example, on a per capita basis, average government funding to the western law reform agencies for the period 2007 to 2012 works out to:

• British Columbia $0.02
• Saskatchewan $0.04
• Manitoba $0.08
• Alberta $0.14

Law foundation funding averaged over the same period brings the per capita funding rate up to:

• British Columbia $0.08
• Saskatchewan $0.10
• Manitoba $0.18
• Alberta $0.39

Immeasurable value is also provided by volunteers from the profession who contribute hundreds of hours each year to specific law reform projects or as agency board members or commissioners.

A small amount of funding per capita and the contributions of volunteers all add up to excellence in legal research and policy analysis. A comprehensive list of links to Canadian and international law reform agencies is available through the Alberta Law Reform Institute.

If you are like me, and you are not in Toronto attending this event, you can still participate through the web.

There is a Linked In Group and a #smartorg twitter stream. There are plenty of concepts being shared through tweets that will make you think. Examples:

Mark Federman ‏@MarkFederman
Great Drucker quote: Mgmt mostly consists of making it difficult for people to do their work. #smartorg

Heather Colman‏ @HeatherColman
More bureaucratic mgmt= less engaged staff #smartorg

It is worth your time to have a look.

In his new book “Tomorrow’s Lawyer”, Richard Susskind claims that there are at least 13 “disruptive technologies” in law. A “disruptive technology” is one that fundamentally challenges and changes the functioning of a firm or sector (as opposed to supporting and enhancing current operational methods). He predicts that collectively these 13 technologies will transform the entire legal landscape.

He includes “online dispute resolution” or ODR in this group. He uses a very broad definition of ODR:

When the process of actually resolving a legal dispute, especially the formulation of the solution, is entirely or largely conducted across the Internet, then we have some form of online dispute resolution… For litigators whose work is premised on the conventional, court-based trial process, ODR, such as e-negotiation and e-mediation, is a challenge to the heart of their business.

In the long run, I expect it to become the dominant way to resolve all but the most complex and high-value disputes. For law firms and court lawyers, this is a direct assault on their conventional work. But it is also a great opportunity – to become a leading player in this new, currently uncontested, market space.

Mediate BC Society recently completed a 3-phase, 6-year study of the use of technology-assisted family mediation (the “Distance Mediation Project”). Funded by the Law Foundation of BC, the project tested the viability of technology-assisted mediation in family disputes. This was, to some, a surprising place to start as many practitioners believe strongly that family mediation, which almost always involves deeply held values and strong emotions, can only be conducted effectively using in person meetings in order to take into account body language, facial expressions, tone of voice etc. Just last week a senior Judge and strong supporter of mediation for families told me that technology simply could not work with the families she encounters every day who need the connection with a “live” person in order to work through the very difficult issues associated with separation and divorce (where are the kids going to live? what is the parenting schedule? how much should you pay for child support? how do we split the family home? etc.).

There is no doubt that these are often heart-rending issues and we know that mediation is often an effective process for such disputes. But what about separating couples who:

• live in different communities and cannot afford to travel to attend in person mediation sessions?
• live in communities that do not (yet) have appropriately skilled family mediators?
• have developed such a high degree of animosity that they cannot function well in the same room with each other?

The question was: how could technology improve access to justice and provide viable solutions to families in these situations? The project tested teleconferencing and web-conferencing tools which were often blended with in person meetings to suit the special needs of the families. It found that family issues (such as parenting arrangements, child support, spousal support or property and asset division) can be mediated safely and effectively using tools including teleconferencing and web conferencing.

The project’s settlement rates, client survey results and mediator feedback support the viability and effectiveness of distance mediation.

The project also demonstrated other important benefits of technology-assisted mediation. Instead of finding that distance mediation was a “poor second cousin” for in person mediation, it showed that some families actually preferred this approach (even when they lived in the same community). In addition, it uncovered some unexpected benefits that are not available for in-person sessions. For example, it showed that web conferencing (through the onscreen videos of each participant and the mediator) can be helpful in “mirroring” to parties and the mediator their own behaviors – that is, it allows the parties and mediator to see themselves in real time, so that they can learn about and possibly change their own actions and reactions.

What about access to justice? While some of the families may have been able to access other services to assist them in resolving their family issues, it is likely that more than a third of the project families would not have accessed, or been able to access, an alternative service if the technology-assisted mediation service had not been available. Additionally, they may have saved money by avoiding travel costs and additional time off work.

What are the implications for those of us in the dispute resolution business, including lawyers, mediators, arbitrators, parenting coordinators, Family Justice Counsellors etc.? Richard Susskind predicts that this type of technology-assisted process will be the way of the future. Rather than push back, he invites us to consider this an opportunity to meet the needs of our clients in new ways.

Are we up to it? The senior mediators (three of whom were also lawyers) and Family Justice Counsellors who participated on the project team were not technology experts. One mediator admitted his “love/hate” relationship with technology at the outset! However, they came ready to learn and, by the end of the project were astounded at how well it worked.

I invite you to read the formal evaluation report, the Practice Guidelines and other project reports collected here as well as the wonderful blog posts coordinated by project manager Susanna Jani over the past 3 years.

“Disruptive” or not, this is coming…and it works.

Here are excerpts from the most recent tips on SlawTips, the site that each week offers up useful advice, short and to the point, on technology, research and practice.

Technology

To avoid viruses and spyware, you should only download software from reputable sites you know are safe. One of the best sources of safe software downloads on the web is FileHippo.com. It has the newest versions of the most widely used software (freeware and shareware), browsers and browser plug-ins. The downloads on this site are 100% spyware and virus free. …

Research

EBook License Templates
Shaunna Mireau

This tip came from Christine Hiller and was shared with the Canadian Association of Law Libraries Conference in Montreal. In the Plenary today, Christine shared that there are eBook license templates and resources available! Check it out…

Practice

Wonderful Wonderlist
David Bilinsky

All of us have to manage our time and our deadlines. At this point in my career, I think I have tried out a fair number of the alternatives: a DayTimer paper calendar, a paper notebook, Microsoft Outlook as well as other various appointment programs etc etc etc.. I think my all-time favourite…

We had flurries last night here in Ontario – but we’re not fooled: spring is around the corner. Time to roll up the slush mats and slide in the bug screens.

We challenge you, in the next month or two, to bring a little of the spirit of spring cleaning to your legal practice. What do we mean?

When work gets busy, many of us put certain non-mission-critical tasks on hold. But it’s important to remember that “on hold” should not be allowed to turn into “lost in the mists of time”. Lawyers must develop the discipline of regularly returning to and addressing the non-urgent details of their practice when opportunities present themselves.

You will know best what needs addressing in the course of your spring cleaning, but if you need some inspiration, here are our suggestions:

• Bill your files, and send reporting letters for matters that you’ve completed.
• Identify languishing files, and take the next step in each one. If you have no clear instructions for a particular file, call the client and find out how he or she wants to proceed.
• Make a list of good former clients for which you have no current work, and contact each of them to see if they have any legal needs (they may be doing their own spring cleaning!)
• Send thank-you notes. Handwritten ones, so rare these days, really make an impression.
• Book your vacation time, approve staff vacation requests, and identify the CPD events you will attend this year.
• File your taxes.
• Review your non-financial goals for the previous year. What did you achieve? Where did you miss the mark? What would you like to achieve THIS year?
• Address staffing issues: complete employee performance reviews, post job openings (and follow through with recruitment); make arrangements to cover staff leaves.
• Review your office lease, utilities, and your supplier contracts. Are you running your business efficiently?
• Consider your office technology and software. Does anything need updating? Are your antivirus subscriptions up-to-date?
• Tackle your reading pile, focusing on identifying news and legal developments in your particular area of law.
• Update your LinkedIn profile.
• Update your CV, bio, and your accomplishments file.
• Review your business card.
• Organize your email inbox, ensuring that client correspondence is properly filed.
• Shine your shoes, dry-clean your suits, and walk through your waiting area an office space as though you were seeing it for the first time. Does your office make an organized and professional impression?

When you feel like you’ve done a good job dusting out at least most of the cobwebs of your practice, shut the door behind you and take a walk in the spring sunshine. We think you’ll be surprised how energized and positive you feel about your work once the details are under control.

A Press summary of the UKSC decisions can be found here.

Typically the sorts of cases where the HB rule has been applied are to give relief to decisions which have resulted in taxation that was unintended and could have been lawfully avoided if the transactions involved had been carried out differently.

Before Pitt and Futter the HB rule was taken to mean that the courts could generally intervene where the trustee had failed to take into account relevant considerations. But the Court of Appeal found the jurisdiction of the court to intervene was limited to circumstances in which the trustees had breached their fiduciary duty. In Futter and Pitt the trustees' decisions had resulted in significant unintended taxation. However the court had no jurisdiction to intervene because the trustees had obtained and acted upon proper professional advice. They had not breached their duties. The UK Supreme Court upheld this ruling.

In Pitt the trustees sought rescission on the ground of mistake in the alternative. The Court of Appeal dismissed this claim applying the law that relief is not available for the consequence of a decision, only for its effect. This is a distinction that has caused a lot of confusion. The Supreme Court did not apply it but instead concluded the critical point is that the mistake must be causative, and of sufficient gravity:

"The court must make an evaluative judgment whether it would be unconscionable, or unjust, to leave the mistake uncorrected, and form a judgment about the justice of the case."

Prior to the 2008 recession the statistics for the legal profession could borrow the Olympic Games’ motto – Faster, Higher, Stronger. Nearly five years later, higher numbers of law grads and rising fees are more problematic. Stronger? That’s a difficult question, and part of the impetus for the CBA Legal Futures Initiative. Phase I looked at the current state of the profession in an attempt to identify where the forces of change will take it so as to position Canada’s lawyers to flourish in the future.

As part of the first phase of the project, the CBA commissioned a study of recent demographic trends. The first thing it found was that there is very little demographic information available for the legal profession in Canada.

The information that was available, however, showed the numbers of practising lawyers and law school admissions have been rising steadily over the past decade. Job growth is expected to be strong but new graduates may have to wait for the cohort of senior practitioners to retire – and that could take a while. The median age of the occupational group that includes lawyers is 45.6, “significantly older than other occupational groups,” and the average retirement age is 75.

Growth in fees and compensation outpace the consumer price index by a wide margin.

About two-thirds of Canada’s lawyers are in private practice, and that’s where 63.6 per cent of new calls end up. A widening urban-rural divide is exemplified by Alberta, where 88 per cent of the lawyers practise in either Calgary or Edmonton, which raises serious access to justice concerns.

Diversity remains a sticking point. Gender equality is seeing gains, but mostly for newer lawyers willing to practise in non-traditional settings, such as government or in-house. While there are no national statistics for equity-seeking groups, the few numbers available from provincial sources suggest this is one area where the legal profession lags behind the general population.

The report refrains from making any sweeping conclusions, but the critical eye might discern a model that is unsustainable in a stagnant economy.

What do the numbers say to you? Join the conversation on Twitter at #cbafutures and check out our website at http://www.cba.org/cba/fol/home/default.aspx

The more interconnected the world becomes, the more people (businesses, governments) are exposed to harm generated online. “Cyberthreats”have become a leading source of worry for many knowledgeable people. The Internet is a dangerous place. Hacking that was once the domain of geeks wanting to show off their exploits is now big business, with division of labour (those who collect the information pass it on to those who use it) and serious resources. Tools for most forms of nastiness are readily available for sale at reasonable prices.

Crime has been joined by state and perhaps private espionage in the illicit domain, and some claim that “cyber-war” cannot be far behind, if it has not already made its appearance. (On the other hand, no one has actually died in such an incident yet, compared to millions of dead in the world wars of the 20th century and many thousands in many other “offline” wars. There is a risk of inflation of vocabulary.)

Much publicity was given to a report by Mandiant this year saying that massive numbers of successful online attacks on U.S. businesses originated with a building near Shanghai owned by the Chinese People's Liberation Army. The President of the United States issued an “Executive Order” about cyber-threats to criticial infrastructure, by which components of that infrastructure (a very broad group) would be notified of their status (not likely to be news) and any imminent threats detected by U.S. IT security forces.

Canada's Department of Public Safety has published a national Cyber-Security Strategy. In October, 2012, the Auditor General published a review of Canada's readiness, finding it wanting. We have no right to feel comfortable.

Faced with these very real threats (and some of the perceived ones), people naturally want to know what they can do about them. Will the police protect them? Will government? Will the providers of information technology: the hardware, the communications links, the programs, the apps? While the answer may be “all of the above”to some extent, it is increasingly clear that security begins at home.

But once one has the latest firewall and anti-virus and has installed the latest patches on all one's programs, and has trained oneself and one's staff in good security practices, what happens if one is still compromised? How far does self-help extend?

The right to engage in active self-defence, also known as “hacking back”, is currently the topic of much discussion (including a brief note here at Slaw.) Many presentations at the 2013 RSA Conference on IT Security focused on this topic, including three out of the eight in the”law track” of lectures and panels (and even a mock trial). It may be considered good that the IT people are thinking about legalities; frequently the IT folks deal with cyber-threats without mentioning them to their lawyers.

There are a number of different activities that may be considered to be active defence: intelligence gathering (Where are the attacks coming from? How are they being made? Who is behind them? Who else is being attacked? What are they after?) and aggressive defence: stopping the attack, following and deleting one's data in the adversary's hands, and reducing the adversary's capacity to continue the attack.

Is this legal? The discussion has focused mainly on the criminal risk, with a close reading of the relevant statutes and adapting traditional justifications. The civil risk is starting to draw attention too. Other categories of risk are the practical and the military. These three will be the subject of another column.

Criminal risk

There seems to be no concern about intelligence gathering in one's own computer. One can analyse whatever is there, however deeply hidden, and the only question is whether one recognizes what one finds and is able to do anything about it. So I can delete or quarantine any malware I can detect, without liability.

The questions arise when I go outside my computer. For purposes of this discussion we are talking about online computer communications, rather than attacks carried out via mobile hardware (though the Stuxnet attack that some consider the only actual act of cyber-warfare to date was perpetrated through infected USB drives.)

Am I allowed to follow the data in my computer back to the computer it came from? What can I do when I get there – given that 'being there' is a metaphor? What I am doing is sending commands to another computer and causing it to respond by sending me data.

Unauthorized access

Two provisions of the Criminal Code of Canada may apply. The first is s. 341.1 that prohibits access to a computer or data 'fraudulently and without colour of right'. Usually the term 'fraudulently' requires some kind of undue financial motive, though if one were to guess or crack a password in order to gain access, that element of the offence might be the subject of argument in a prosecution.

The legality of access is more likely to present the issue of 'colour of right'. What right can one claim to be poking about inside someone else's computer? Is the need for information about harm being done sufficient? Is the need to stop the harm sufficient?

One can look for one's colour of right by analogy to the law of trespass on physical property. Can I enter my neighbours' house without their consent to find the source of a loud noise? To find the source of water that is flooding my yard, or basement? To put out a fire that threatens the neighbourhood? These examples presume that the neighbours are not intentionally causing the harm – but suppose that they are? And they might not be at home – but is the neighbours' computer (or one around the world) unoccupied in any meaningful sense?

Trespass analogies do not work very well. One can imagine a flow of electrons having a physical effect on another computer, and there have been efforts in the US to characterize sending unwanted messages to a computer as trespass to chattels. Nevertheless it seems artificial. Is a password the equivalent of a lock on a door or a sign on a lawn? One can trespass by walking through an unlocked door, but perhaps not by walking across an unfenced yard, if there is no sign. What is the computer equivalent of a sign? Avoiding the difficulties of applying such analogies was one of the reasons for the express provisions of the Code. Indeed one of the motivations for the Council of Europe's Cybercrime Convention was to ensure that many countries had basic laws against intrusion on and misuse of computers, following cases in which creation and distribution of malware was held not to be against the law in some countries.

A more thorough review of the use of analogy in applying criminal laws to computer investigations is found in the works of Orin Kerr.

Mischief to data 

The second main provision of the Criminal Code is s. 430(1.1) prohibiting mischief to data. This would be relevant if one went beyond investigation to active defence, such as deletion of files or programs that were thought to be causing the damage. The offence includes destruction of data and rendering data inoperative or ineffective – just what one would want to do to malware that was affecting one's computer. Section 429 provides a defence to a charge under this provision, however: one may not be convicted where one 'proves that he acted with legal justification or excuse and with colour of right.'

The reference to 'legal justification or excuse' may provide a broader defence than the absence of fraudulent intent in the access provision. Two legal justifications are most likely to be used: self-defence and necessity.

Self-defence (of property) 

It is clear that one can defend one's property against attack, by an act that is 'reasonable in the circumstances' (s. 35 of the Criminal Code.) That includes a reasonable belief that one's property was in fact under threat. Is it reasonable to extend self-defence to acts beyond cutting one's computer off from the source of the attack? If it were not possible to be selective in blocking the attacker, for example without cutting off all online communications, then a more active defence might be allowable. These days the law might not require somebody to do without any Internet connection because of a history of being attacked.

How possible is it to fine-tune one's counter-attack? What are the risks of going too far, of causing collateral damage, of going beyond what is reasonable in the circumstances? Is a certain (or uncertain) amount of collateral damage reasonable in order to achieve the basic defence?

Necessity

The other main line of argument in the face of criminal charges would be necessity. This is in large part an aspect of self-defence, but it applies at common law, outside the Code. There must be imminent peril to the person who claims necessity. The case law does not appear to have dealt with peril to property, unlike the codified rule on defence of one's property. The courts have been very willing to limit the scope of necessity. One must have no reasonable legal alternative to the illegal action one has taken, and one must act in proportion to the risk.

To succeed, one would certainly have to show that one's own system was as secure as possible, with all safeguards in place, with all patches applied, and so on. If it were possible to block the suspected source of infection or attack, that must be done. When would that not be enough? Is any source of communication so necessary that an infection of that source 'must' be taken down? But why not just inform the people responsible for the other system that it is infected or distributing malware? If they intend to harm you, is it really necessary that you continue to deal with them? If they do not intend to harm you, why would notice to them not be sufficient?

The other serious question that undermines a defence of necessity would be, 'why not tell the police and let them deal with it?' That's what the police are for, to stop criminal activity. They have legal powers beyond those of the general citizen, including – with judicial authority – the right to intercept the flow of information and to require information to be made available to it. (The extent of those powers in the information age continues to be a matter of current debate in the courts and in Parliament.)

There is at least US precedent for private action with judicial authority. Microsoft discovered by its own data flow analysis that malware was coming from a particular address. It applied to the court for authority to disable the source, and was successful. Such an action would certainly meet the Criminal Code requirements for legal justification. It may be noted that not everyone is comfortable with even judicially-controlled self-help.

The American position on hacking back has been extensively debated. The issue there tends to turn on the application of the Computer Fraud and Abuse Act (CFAA), which prohibits 'unauthorized' access to a computer. 'Unauthorized' is not defined, though there are numerous and inconsistent judicial decisions on the term – not generally in the context of self-defence, however. Liability under the CFAA often turns on there being damage of more than $5000. Accessing a computer to investigate the source of communications, or possibly even disabling a malware server, might not meet that standard. Canadian law gives a bit more guidance, but still does not clearly resolve just what one can do and not do.

Intermediary computers

An important complicating factor in the whole discussion is the likelihood that any attack on one's computer system is an indirect or disguised attack. It is probably not coming from one's neighbour's computer, but from somewhere else. The takeover of innocent (though possibly negligently run) computers by hackers, who use them as 'bots', i.e. automatons to send messages at the hackers' command, is very common. Botnets of a hundred thousand machines are not unknown.

Thus the risk of harming an innocent machine, and its owner, is substantial, as one hacks back against what is harming one's own system. It is not clear how that affects one's colour of right or legal justification for accessing or destroying data on that machine. Generally one's legal rights must be exercised reasonably, which would seem to require at least reasonable care to ensure that one had the right target. An investigation of an innocent (but compromised) computer might be more likely to escape prosecution, or conviction, than doing damage to it.

Conclusion (continuation)

The debate continues, but in the context of unclear law as well as contentious policy. (If the third party's computer is already compromised, how much additional harm does the counter-attacker do, and should we care?) Should the law encourage a type of vigilante justice, taking the law into one's own hands? Do we trust the usual official hands, whether law enforcement or even military authorities, to do the job? Is it possible to legislate sufficiently specific grounds for active defence that most of the risks will be avoided, and the potential harm from hacking back will be less than the harm caused by the attacks?

The next column will review civil, military and practical elements to the hacking back discussion.

Each Monday we present brief excerpts of recent posts from five of Canada's award-winning legal blogs chosen at random* from forty-one recent Clawbie winners. In this way we hope to promote their work, with their permission, to as wide an audience as possible.

This week the randomly selected blogs are 1. Clicklaw Blog 2. Legal Feeds 3. Official Clio Blog 4. Michael Geist 5. Library Boy

Clicklaw Blog
AdminLawBC – Online Resource for Navigating Administrative Law

Are you preparing for a tough talk with your boss and want to get tips on negotiation tactics that will help the dialogue move forward? Does your phone bill reflect charges that were not included in your original contract and you want to dispute the matter with your phone provider? Are you a licensed practical nurse who wants to appeal a decision of your College’s Registrar of complaints? All of these issues fall under the jurisdiction of boards, tribunals and government agencies that make rules affecting our daily lives…

Legal Feeds
SCC dismisses Kopyto appeal on paralegal regulation  

In a long-standing battle with the Law Society of Upper Canada, former lawyer Harry Kopyto took his case all the way to the Supreme Court of Canada, and ultimately lost. Today the SCC dismissed his application for leave to appeal.

Official Clio Blog
ClioTraining Tip: Setting Up Reminders For Multiple Users

By default you have the option to set reminders for Calendar Events and Tasks. These can either appear as a pop-up within your account, or as an Email reminder to the address you used to sign up with Clio. But what if you wish to use an alternative E-mail or have reminder notifications sent to other Clio users in the account?…

Michael Geist
Canadian Government Establishes Two-Tier Approach for Trade Talks: Insiders and Everyone Else

As the future of the proposed Canada – European Union Trade Agreement becomes increasingly uncertain – the EU has been unwilling to compromise on the remaining contentious issues leaving the Canadian government with a deal that offers limited benefits and significant costs – the Trans-Pacific Partnership Agreement (TPP) is likely to emerge as the government's new top trade priority.

Library Boy
Canadian Association of Law Libraries 2013 Conference – Being A More Effective Presenter 

The 2013 annual conference of the Canadian Association of Law Libraries ended earlier today. I will get to some of the main workshops on issues such as licensing and website/database redesign later this week. Right now, I want to discuss a presentation yesterday afternoon by Kate Bligh, a Montreal-based theatre director, dramaturg and teacher. She gave a presentation on how librarians could become more effective speakers and trainers. It was called "Coping With Interruption and Interaction in an Era of Social Media".

This is a valid question because review sites are frequently being used for a variety of other purposes. For example, business competitors can try to capture larger market shares by making themselves look better, and personal vendettas can play themselves out through negative reviews anywhere a person's name or their place of work is found online. The Terms of Service for most of these sites, however, require participants to be actual customers who are expressing their personal experiences.

One of the biggest challenges is that most of the companies that own the review sites are based in the U.S., and American courts have largely protected such inquiries under First Amendment rights by requiring the plaintiff to first demonstrate a legally and factually sufficient basis to substantiate the claims. Without knowing the identity of the defendants this test can often be difficult to meet at a claims or discovery stage.

One recent case in Virginia may signal a shift in this trend. Last fall the Circuit Court of Virginia rule in Hadeed Carpet Cleaning, Inc. v. Doe that the review website Yelp had to comply with a subpoena for production of evidence and provide information which would identify posters on its site.

The company claimed the reviews did not match any actual customers in their records, and the company claimed they were written by a business competitor. Yelp objected to the production on a number of grounds, including the fact that the documents were held in California and the subpoena should properly be brought there to be enforceable.

Judge Clarke stated:

This Court recognizes that anonymous speech and even false speech is entitled to protection under the First Amendment to the Constitution. These types of speech, however, are not entitled to the same level of protection as truthful or political speech. Defamatory speech is not entitled to the same protection as truthful or political speech.
[citations omitted]

Alison Frankel, commenting on this case, points to a Yale Journal of Law & Technology article suggesting an emerging consensus in American courts that an the line of cases from the 2001 New Jersey case of Dendrite v. Doe and the 2005 Delaware Supreme Court case in Doe v. Cahill, which strikes the appropriate balance between the First Amendment and the need for disclosure. The test from these cases roughly follows the following framework:

1. the plaintiff must provide notice to the potential defendant for them to defend their anonymity
2. the plaintiff must specify which statements allegedly violate their rights in a manner that would survive a motion to dismiss
3. ensure the complaint states a cause of action for each statement against each defendant
4. require the production of supporting elements of the claim
5. balance potential harm of preventing the claim from proceeding with the right to remain anonymous

The Deleware court in Cahill emphasized points 1 and 2 above and was justified by concerns that anonymous speech could be chilled by a "sue first, ask questions later" approach where minimum standards of protection existed for defendents. The result could include stifling important debates of public concern because of fears of being unmasked. However, the analysis in Cahill discarded the remaining components of the test as unnecessary.

Various American courts have used different combinations of the Dendrite-Cahill test to assess whether anonymous posters should be reveled. However, no appellate level court in Virginia has ruled on the issue, and courts in other states have used procedural rules instead of the Dendrite-Cahill test to protect anonymity.

The success of the plaintiff in Hadeed may be related to the specific statutory scheme in Virginia, which allows service, including a subpoena directed to a witness, even though the parties may be based in another state. The commercial activity of the Yelp in the state strengthened this case for production.

The advertising agreement and choice of law or arbitration clauses did not bar this discovery because the plaintiff was not in a merchant relationship with Yelp, even though they had used to site to respond to negative ratings. The court also cited the Uniform Interstate Depositions and Discovery Act as an alternative means of discovery.

The case in Hadeed isn't over though yet. The Public Citizen Litigation Group, a party to the trial decision as pro hac vice, has filed an appeal last week, urging the court to adopt the Dendrite-Cahill test.

One important practical consideration is the effect on rating sites themselves. Yelp refused to comply with this order while the appeal was being prepared, and was subsequently held in contempt (a finding that is also being sought to be reversed on appeal). Rating sites are unlikely to survive as businesses if they cannot offer at least some guarantee of identity protection for their users, especially if these are done in good faith by users complying with their Terms of Service.

On the second Sunday in each month we bring you a summary fromSupreme Advocacy LLP of recent decisions at the Supreme Court of Canada. Supreme Advocacy LLP offers a weekly electronic newsletter, SupremeAdvocacyLett@r, to which you may subscribe.

Summary of all appeals and leaves to appeal granted (so you know what the S.C.C. will soon be dealing with). For leaves, both the date the S.C.C. granted leave and the date of the C.A. judgment below are added in, in case you want to track and check out the C.A. judgment. (April 11 – May 8, 2013).

ORAL JUDGMENTS

Criminal Law: Parties to an Offence 

R. v. Lévesque (Que. C.A., June 7, 2011)(34417) April 16, 2013
LeBel J.: [translation] “The [trial] judge … gave, in response to a specific question from the jury on being an accessory and being a party to an offence, additional instructions that were incomplete and confusing … the nature of the charges … raises the question whether it would be possible to base a conviction for first degree murder on the accused being a party to the offence within the meaning of s. 21(2) ... the appeal is allowed, the verdict of guilty is set aside, and the Court orders … a new trial … in respect of the same charges.”

Criminal Law: Conspiracy 

R. v. Murphy (N.S. C.A., Sept. 6, 2012)(34980) April 16, 2013
LeBel J.: “… the verdict was not unreasonable. The appeal is dismissed.”

Extradition (To Canada)

R v. E.F.M. (N.S.C.A., Dec 8, 2011)(34650) April 22, 2013.
The Chief Justice: "… the right of the accused to be tried within a reasonable time was violated. The appeal accordingly is dismissed."

APPEALS

Criminal Law: Concealing Dead Body of a Child 

R. v. Levkovic (Ont. C.A., Dec. 07, 2010)(34229) May 3, 2013
S. 243 Criminal Code is not unconstitutional for vagueness; and, evidence that a child would likely be born alive is enough for a conviction.

Criminal Law: Reasonableness of Verdict Based on Jury's Assessment of Witness Credibility 

R. v. W.H. (N.F. & L. C.A., September 14, 2011)(34522) April 19, 2013
A jury’s guilty verdict based on the jury’s assessment of witness credibility is not immune from appellate review for reasonableness, but, the reviewing court must treat the verdict with great deference; the court must ask itself whether the jury’s verdict is supportable on any reasonable view of the evidence and whether proper judicial fact-finding applied to the evidence precludes the conclusion reached by the jury [emphasis in original]. The C.A. cannot ask itself instead whether an experienced trial judge could give adequate reasons to explain the finding of guilt.

LEAVES TO APPEAL GRANTED

Airlines: Official Languages 

What is the status of language complaints against Air Canada.
Thibodeau, et al. v. Air Canada, et al. (Fed. C.A., Sept. 25, 2012)(35100) May 2, 2013

Constitutional Law: Res Judicata 

Does res judicata exist legislatively and constitutionally.
A.G. Can. v. Confédération des syndicats nationaux, et al. (Que. C.A., October 10, 2012)(35124) May 2, 2013

Criminal Law: (Alleged) Ineffective Assistance of Counsel
There is a publication ban in this case, in the context of conviction for a series of ‘historical’ sexual offences.
W.E.B. v. R. (Ont. C.A., Nov. 14, 2012)(35089) May 2, 2013

Civil Procedure in Quebec: Mediation; ‘Homologation’

What did the settlement cover, and can mediation/settlement negotiations be later used as evidence at trial.
Union Carbide Canada Inc., et al. v. Bombardier inc., et al. (Que. C.A., July 17, 2012)(35008) April 11, 2013

Class Actions in Quebec: Banking; Foreign Exchange

Did various banking institutions fail to disclose foreign exchange conversion charges on credit cards as a “credit charge”.
Banque de Montréal, et al. v. Marcotte, et al. (Que. C.A., Aug. 2, 2012)(35009) April 11, 2013

Class Actions in Quebec: Banking; Foreign Exchange

Similar summary to that immediately above.
Marcotte v. Fédération des caisses Desjardins du Québec (Que. C.A., Aug. 2, 2012) (35018) April 11, 2013

Class Actions in Quebec: Banking; Foreign Exchange

Similar summary to that immediately above.
Amex Bank of Canada v. Adams, et al. (Que. C.A., Aug. 2, 2012)(35033) April 11, 2013

Criminal Law: 'Mr. Big' 

There is a sealing order in this case, in the context of a ‘Mr. Big’ sting.
D.R.M. v. R. (Alta. C.A., Feb. 27, 2012)(35093) April 11, 2013

Criminal Law: Parole

Is the Abolition of Early Parole Act constitutional.
A.G. Can., et al. v. Christopher John Whaling, et al. (B.C.C.A., Nov. 2, 2012)(35024) April 11, 2013

Criminal Law: Pre-Sentence Custody

Should an accused be credited at a ratio of 1.5 days for every day in pre-sentence custody.
R. v. Carvery (N.S. C.A., Oct. 3, 2012)(35115) April 11, 2013

Transportation Law: Railways; Orders-In Council

There is a sealing order in this case, in the context of a confidential contract with regard to freight rate fuel surcharges, and orders-in-council.
C.N., et al. v. A.G. Can., et al. (Fed. C.A., Nov. 2, 2012)(35145) April 11, 2013

Summaries of selected recent cases are provided each week to Slaw byMaritime Law Book. Every Sunday we present a precis of the latest summaries, a fuller version of which can be found on MLB-Slaw Selected Case Summaries at cases.slaw.ca.

This week's summaries concern:
Civil Rights / Criminal Law / Trademarks, Names and Designs / Income Tax / Admiralty / Municipal Law:

R. v. Welsh (J.) 2013 ONCA 190
Civil Rights – Courts – Criminal Law – Evidence – Police
Oraha was shot multiple times and killed in a parking lot near his car. Forensic evidence indicated that four different firearms were used. No murder weapons were found. It was agreed at trial that the circumstances of Oraha’s death were planned and deliberate. The Crown’s theory was that eight individuals, four of whom were shooters, were involved in the murder. The Crown alleged that Welsh was one of the four shooters, that Pinnock …

R. v. Levkovic (I.) 2013 SCC 25
Civil Rights – Criminal Law – Statutes
The accused was charged under s. 243 of the Criminal Code with concealing the dead body of a child. Under the definition of the offence, it had always been immaterial whether the child died before, during or after birth. The Ontario Superior Court held that the words “died before … birth” in s. 243 of the Code were unconstitutionally vague. The court severed “before” from the section, leaving it to read in its material part “whether the …

Council of Natural Medicine College of Canada v. College of Traditional Chinese Medicine Practitioners and Acupuncturists of British Columbia 2013 FC 287
Civil Rights – Constitutional Law - Trademarks, Names and Designs
The Registrar of Trademarks gave public notice that the College of Traditional Chinese Medicine Practitioners and Acupuncturists of British Columbia (College) had adopted and used 16 official marks (Trade-marks Act, s. 9(1)(n)(iii)). The Council of Natural Medicine College of Canada (Council), applied for judicial review, seeking to set aside the Registrar’s decision. The Federal Court dismissed the application. The court held that the Registrar committed no reviewable error. The Registrar correctly determined, consistent with the …

Cavanagh v. Minister of National Revenue 2013 FCA 94
Income Tax - Deductions in computing income – Alimony
Cavanagh was ordered to pay support in a specified amount per week as well as interest on any payments in default, from the date of default. He defaulted on his support payments. In 2006, he made a payment that discharged his entire obligation to that point, including accrued interest of $10,187.77. In computing his income for purposes of the Income Tax Act, Cavanagh sought to deduct the $10,187.77. The Tax Court of Canada held that the …

Cameco Corp. et al. v. Ship MCP Altona et al. 2013 FC 23
Admiralty - Actions in rem – Sale – Sale proceeds – Entitlement to
Cameco’s uranium cargo spilled while being shipped on board a foreign vessel bound for China. Authorities ordered the ship back to Vancouver. Cameco discharged the cargo and remediated the ship. Cameco, as ordinary creditor, and the ship’s mortgagee (bank) each sought priority to the proceeds of a judicial sale of the ship. The Federal Court determined that the bank, as mortgage creditor, had priority over Cameco as a cargo claimant. The court …

Calgary (City) v. Hughes 2012 ABPC 250

Civil Rights - Constitutional Law - Land Regulation - Municipal Law
Hughes kept six chickens in the backyard of his residential property in the City of Calgary, in breach of s. 27 of the Responsible Pet Ownership Bylaw: “No person shall keep Livestock in any area of the City except where the keeping of Livestock is allowed under The City of Calgary Land Use Bylaw”. “Livestock” included chickens (s. 2(1)(n)(v)). With Hughes’ encouragement, a violation ticket was issued. Hughes challenged the Bylaw’s constitutionality, submitting that the City lacked …

]]> http://www.slaw.ca/2013/05/12/summaries-sunday-maritime-law-book-9/feed/ 0 http://www.slaw.ca/2013/05/10/wake-up-speak-up-shake-up/ http://www.slaw.ca/2013/05/10/wake-up-speak-up-shake-up/#comments Fri, 10 May 2013 16:00:05 +0000 Susan Munro http://www.slaw.ca/?p=59366

Jordan Furlong published another great column recently about how the word the word "disruption" is being used to describe many changes in legal practice and technology. He points out that the word is most often used to describe legal process innovation. The comment boards lit up with discussion of what may or may not be disruptive. I agree with Jordan and other commenters that improving legal process or process innovation is not really disruptive. Examples of legal process innovation abound, but they mostly just introduce efficiencies into practice (for example, by standardizing steps in common procedures). On the other hand, . . . [more]

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Jordan Furlong published another great column recently about how the word the word "disruption" is being used to describe many changes in legal practice and technology. He points out that the word is most often used to describe legal process innovation. The comment boards lit up with discussion of what may or may not be disruptive. I agree with Jordan and other commenters that improving legal process or process innovation is not really disruptive. Examples of legal process innovation abound, but they mostly just introduce efficiencies into practice (for example, by standardizing steps in common procedures). On the other hand, new technology such as Neota (which seeks to replace legal analysis with programming) and the online dispute resolution program developed by HiiL (well described in this blog) may well prove to be disruptive.

But disruptive forces are at work in the world around us. They couldn't have been highlighted more clearly than in recent remarks from BC Supreme Court Chief Justice Bauman. When he accepted an award recently from the BC Trial Lawyers Association, he exhorted BC lawyers to "Wake up! Speak Up! Shake Up!". He went on:

We as lawyers, as you well know, are facing significant challenges these days: access to justice issues are daunting and potentially fatal to our profession as we know it. Similarly, public confidence in our profession and in its institutions, especially the Courts, is a continuing challenge.

Richard Susskind famously asked in his book: The End of Lawyers? It is today the very question we should ask ourselves. The willingness of government and the public to abandon lawyers and the Courts as the dispute resolvers of choice is startling and disturbing. As a profession if we are not accessible and accountable and importantly, seen to be, we risk the possibility of losing all relevance.

I believe that Chief Justice Bauman has identified the real source of disruption. And the change is not coming from within the practice of law (for instance, by introducing process efficiencies). This disruption comes from a change in society’s attitude to the legal profession and the rule of law. How can we tell that public confidence in the legal profession has diminished? A few examples:

• The number of self represented litigants in our courts is staggeringly high. According to a recent position paper from the BC Branch of the CBA, in BC’s Provincial Court, 90 to 95% of family law matters have at least one unrepresented party. Even in the BC Court of Appeal, self-represented litigants appeared on 27% of civil cases and 21% of criminal cases.

• In 2012, the BC government passed the Civil Resolution Tribunal Act. The Tribunal will be a new dispute resolution and adjudicative body with authority to hear some strata property disputes and, where the parties agree, small claims matters. Section 20 of the Act states that parties are to represent themselves. Lawyers are only allowed to participate as set out in that section.

• In response to concerns about access to justice, the Law Society of BC recently changed its rules to allow an increased role for paralegals working under the supervision of a lawyer. Paralegals may now appear in court and give legal advice in specified circumstances.

In some ways, the legal profession is in an exceptionally difficult position. When we speak up in favour of the rule of law and our justice system, we run the real risk of appearing to protect our vested interests and to be afraid of any change. We may understand and believe that we are protecting the very foundation of our society: the rule of law, but our society tends not to view issues through that lens. This is much more than an image problem.

My worry is that as a society we are now turning away from the rule of law, lawyers, and even from the justice system. Will our society start to see the rule of law as an expensive luxury rather than an essential foundation to our economy and our society? If you want a bracing look at what happens when the courts aren't supported by the government, read this excellent NY Times series about the crisis in the Bronx criminal courts.

In British Columbia the legal profession has been proactive about speaking out:

• The Law Society of BC is very clear about the importance of the rule of law;

• Gordon Turriff, QC, used his term as President of the Law Society of BC to speak out about this issue; he traveled throughout the province and around the world to deliver the message.

• The BC Branch of the CBA has developed an excellent platform document: Agenda for Justice. This thoughtful platform sets out the key justice issues in BC, with proposed solutions.

• In late April, the CBA is holding a summit on “Envisioning Equal Justice Summit: Building Justice for Everyone”; this ambitious program is designed to address practical steps forward on access to justice initiatives.

And Chief Justice Bauman has good advice for us. He encourages lawyers to renew our dedication to serving the public, embrace change, participate in access to justice initiatives, mentor young lawyers, and continue our long tradition of community service and involvement in political life. All this and more will surely be needed if we are to ensure that the disruption around us results in healthy change.

]]> http://www.slaw.ca/2013/05/10/wake-up-speak-up-shake-up/feed/ 3 http://www.slaw.ca/2013/05/10/the-w-word/ http://www.slaw.ca/2013/05/10/the-w-word/#comments Fri, 10 May 2013 11:00:41 +0000 Legal Profession Assistance Conference http://www.slaw.ca/?p=59362

I billed 2,400 hours last year because I have the perfect work-life balance.

Since its adoption into mainstream North American vocabulary in 1986, the term “work-life balance” has caused hypertension in and the impression of decreased work-ethic by senior lawyers and firm managers. Its use by an applicant in an interview is usually fatal. Yet firms spend thousands of hours and dollars seeking the Holy Grail for law firm management: equilibrium between “work-life balance” and business interests. Why? Because “work-life balance” equates to associate retention.

With all the focus on work-life balance, why have so few managed to achieve the . . . [more]

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I billed 2,400 hours last year because I have the perfect work-life balance.

Since its adoption into mainstream North American vocabulary in 1986, the term “work-life balance” has caused hypertension in and the impression of decreased work-ethic by senior lawyers and firm managers. Its use by an applicant in an interview is usually fatal. Yet firms spend thousands of hours and dollars seeking the Holy Grail for law firm management: equilibrium between “work-life balance” and business interests. Why? Because “work-life balance” equates to associate retention.

With all the focus on work-life balance, why have so few managed to achieve the Holy Grail? It’s simple. Firms don’t know what the term means.

In the eyes of many senior lawyers, “work-life balance” means an entitlement to a reduction in the time spent working and an increase in the time spent playing. It means shorter work days, less time at the office, reduced work ethic, and more time spent on touchy-feely things like sensitivity training and team building exercises. Simply put, it equates to accepting lower profits for the benefit of employees’ personal lives. It’s understandable how such an interpretation would generate feelings of repugnance and disappointment in senior lawyers. After all, in their minds, they worked longer hours, for less pay, and spent less time with their families than most junior associates. Why should they now pay for employees to have a personal life that they were never afforded themselves? They are wrong.

“Work-life balance” simply means control.

Despite the broad misinterpretation of the “w-word”, the new generation of lawyers are not lacking in work ethic and ambition. Both are required to get into law school, through law school, through articling and into jobs in the legal community. Work ethic does not disappear when a lawyer is called to the bar. However, the new generation is facing different challenges than their predecessors due to increased cost of living and the technology-induced demand for 24/7 availability to work. Such challenges necessitate transferring certain amounts of control from the firm to individual associates.

Specifically, “work-life balance” means control over where you work, when you work, how you work, and how your career develops. It means senior lawyers trust associates to get the job done and do it effectively. It means setting goals for associates and allowing them to control how to achieve them. It means “work life integration”.

The Holy Grail can easily be achieved with just a few changes to firm management that benefit both the associates and the firm:

• Allow associates the freedom to work where they want to work. Such flexibility provides associates with the control to determine their most effective work habits and location. With standard technology in law firms, associates can work just as easily from anywhere with an internet connection and cellular reception as they can from the office. In fact, the vast majority of work-related conversations with co-workers and clients now take place via email or teleconference. As long as associates are available, their physical location is usually irrelevant to the profit of the firm;
• Allow associates the freedom to work when they want to work. In today’s economy, a double income for a family is often a requisite rather than a choice. With both parents working, the responsibility for children, household chores, etc. is shared. Often such responsibilities are required between 8:00am and 6:30pm, when lawyers are expected to be working. Furthermore, the majority of associates live further from where they work than their senior counterparts. Commuting with rush hour traffic can mean the loss of two or more hours of productivity from a day. From the perspective of the firm, that’s a loss of two or more billable hours a day. Moreover, it is well-recognized that modern technology has led to an expectation that all lawyers will be available to clients and co-workers 24 hours a day, 7 days a week, whether the lawyer is “working” or not. In fact, most lawyers who negotiate reduced work weeks find that their actual working hours do not decrease – they just work at different times than they used to. When lawyers have the freedom to determine when they work, they can manage other personal obligations in tandem with work obligations. Similarly, the freedom to more effectively manage hours of the day increases the potential work hours for the lawyer;
• Set a bottom line for associates. To ensure associates remain profitable, inform associates of the specific numbers that must be achieved to maintain their employment, receive their salary, and keep their superiors content. Make it clear to associates that control comes with responsibility: work product and client satisfaction cannot be compromised;
• Provide regular statistical status reports for associates. For example, a monthly report showing each associate their hours for the month, the year to date, and their projected annual billing provides a gentle reminder of the bottom line, and enables associates to manage their time over the year and not just over the day;
• Provide associates with a pro-rata incentive for exceeding their bottom line. This way, when an associate exceeds expectations, both the firm and the associate profit, and they profit in an amounts directly correlated to one another; and
• Most importantly, trust must be earned by associates and acknowledged by firms. When associates are trusted, standard policies that limit associates’ freedom will not be required. Standard policies tend to be applied to the masses but only needed to manage the minority. As a result, the masses feel micromanaged and controlled rather than trusted and respected.

The above changes will not increase costs for firms. To the contrary, costs may be reduced by reducing overhead, increasing retention and increasing productivity.

Last year I billed 2,400 hours. That was my choice. I controlled when, where and how I wanted to work. I chose to invest in my career and my income. I also planned my wedding and took 5 weeks of vacation. I have the perfect work-life balance.

By Kate Saunders 

Kate Saunders is a Board member of the Legal Profession Assistance Conference

]]> http://www.slaw.ca/2013/05/10/the-w-word/feed/ 3 http://www.slaw.ca/2013/05/10/the-friday-fillip-slates-vault/ http://www.slaw.ca/2013/05/10/the-friday-fillip-slates-vault/#comments Fri, 10 May 2013 11:00:10 +0000 Simon Fodden http://www.slaw.ca/?p=59217

Microsoft has done some good things. Even as an Apple fan boy I can say that. One such Good Thing is Slate magazine, founded in 1996 (and a strong influence in my naming of Slaw, as it happens) under the auspices of Microsoft's MSN. In 2004 Slate passed into the hands of the Washington Post, under whose umbrella it still shelters today. But even a simple encomium to this news and popular culture magazine would be too . . . earnest, perhaps, for a Friday fillip. So it's to Slate's Vault that I want to point you today.

The Vault, . . . [more]

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Microsoft has done some good things. Even as an Apple fan boy I can say that. One such Good Thing is Slate magazine, founded in 1996 (and a strong influence in my naming of Slaw, as it happens) under the auspices of Microsoft's MSN. In 2004 Slate passed into the hands of the Washington Post, under whose umbrella it still shelters today. But even a simple encomium to this news and popular culture magazine would be too . . . earnest, perhaps, for a Friday fillip. So it's to Slate's Vault that I want to point you today.

The Vault, styled as one of Slate's blogs and curated by Rebecca Onion (no, not that Onion), is where the odd, the historical and the merely delightful come to be broadcast. These finds can range from the disturbing, such as a photocopy of a fraudulent 1893 broadside put out by something called the United States Ex-Slave Owners Registration Bureau, "Promising Compensation to Former Owners of Slaves," to the hilarious 1912 stop-action film by Wladislaw Starewicz, a Polish photographer and entomologist, "The Cameraman's Revenge." (Entemologist, you say? Why, yes: the players are all artfully arranged insects.)

So when you have a moment — as now, for instance — nip on over and browse in the Vault. And there's really no better, or indeed other, way to do that than by scrolling backwards through time. You'll find clumps of related historical materials. Now, for instance, Ms. Onion is clearly mining a large find of US civil war period material. But there's also G.B. Shaw's "autoreply" postcard, sent to the many who wrote him about this and that; a note by Russel Banks made as he adjusted to these newfangled word processors; a tiny book produced by Charlotte Brontë, All About Arthur; and a brief exposition on How the Mango Became the Fruit of Mao.

Consider subscribing to the Vault's RSS feed — you'd be looking at a mere one post a day — or, for those of you who never did get RSS, the Twitter account is @SlateVault.

]]> http://www.slaw.ca/2013/05/10/the-friday-fillip-slates-vault/feed/ 0 http://www.slaw.ca/2013/05/09/service-of-initial-documents-by-email/ http://www.slaw.ca/2013/05/09/service-of-initial-documents-by-email/#comments Fri, 10 May 2013 02:29:39 +0000 John Gregory http://www.slaw.ca/?p=59731 Do you know of any means by which prosecutorial documents – like a notice of compliance or notice of laying of charges – can be delivered electronically? If a regulator, for example, wanted to require one of its regulated bodies to appear at a hearing, how can it ensure that the addressee has received the notice?

The regulator would have an email address of the regulated body, but assume that there is no contract or statute that allows for ‘originating process’ to be presumed to be delivered if delivered electronically.

I am aware that the Rules of Civil Procedure allow . . . [more]

]]> Do you know of any means by which prosecutorial documents – like a notice of compliance or notice of laying of charges – can be delivered electronically? If a regulator, for example, wanted to require one of its regulated bodies to appear at a hearing, how can it ensure that the addressee has received the notice?

The regulator would have an email address of the regulated body, but assume that there is no contract or statute that allows for ‘originating process’ to be presumed to be delivered if delivered electronically.

I am aware that the Rules of Civil Procedure allow lawyers for parties in civil actions to exchange documents by email, once the action has begun – but not the ‘originating process’ like the statement of claim.

I am also aware that some courts have allowed parties to serve originating process as ‘substitute service’ (the traditional service in person having been tried and failed) by electronic means, notably by posting messages to the defendant’s Facebook page or by Twitter (a notice of injunction).

I am not aware of such methods being used in a prosecution or regulation context. Am I missing something? How could the regulator prevent a denial of receipt by the addressee? (How can it decrease the prospects of repudiation?) Must there be contractual or statutory authority to support delivery?

]]> http://www.slaw.ca/2013/05/09/service-of-initial-documents-by-email/feed/ 0 http://www.slaw.ca/2013/05/09/canadian-association-of-law-libraries-2013-conference-its-all-about-redesigning-to-stay-relevant/ http://www.slaw.ca/2013/05/09/canadian-association-of-law-libraries-2013-conference-its-all-about-redesigning-to-stay-relevant/#comments Fri, 10 May 2013 00:09:34 +0000 Michel-Adrien Sheppard http://www.slaw.ca/?p=59727 One of the big themes running through many of the workshops at this week’s CALL conference in Montreal was the redesign of products, platforms and processes. The conference ended yesterday.

The Monday session entitled “Please Don't Make Me Think: User Testing a Faceted Search Engine” was about how the Centre d’accès à l’information juridique (CAIJ), Quebec’s Courthouse Library Network, conducts user testing sessions to validate the ergonomic and design aspects of many of its tools, including its new faceted search engine JuriBistro UNIK.

I served as a guinea pig at the session. I volunteered to go up on stage . . . [more]

]]> One of the big themes running through many of the workshops at this week’s CALL conference in Montreal was the redesign of products, platforms and processes. The conference ended yesterday.

The Monday session entitled “Please Don't Make Me Think: User Testing a Faceted Search Engine” was about how the Centre d’accès à l’information juridique (CAIJ), Quebec’s Courthouse Library Network, conducts user testing sessions to validate the ergonomic and design aspects of many of its tools, including its new faceted search engine JuriBistro UNIK.

I served as a guinea pig at the session. I volunteered to go up on stage and “test” a music store website. I was told to try to order the latest Céline Dion CD for a Mother’s Day gift and failed miserably. The presenter then explained that she had deliberately chosen a badly designed website. My embarrassment (I was in front of a full room pretending to be interested in Céline Dion) served as a perfect introduction to the importance of usability testing.

During user tests relating to JuriBistro UNIIK, CAIJ made some very surprising discoveries about how people think about their searching, what they see and do not see on your site, and how they (mis)interpret symbols or language that appear perfectly clear to project members.

Lo and behold, they discovered that lawyers – their users – like to READ text and do not see or even understand many of the pretty and cute pictograms designers provided as shortcuts to very important features such as the fulltext of cases. So they replaced icons with text like “Texte intégral – Jurisprudence” and all the guinea pigs (sorry, I mean test lawyers) were happy.

Other features that test subjects overlooked or failed to see or understand included such things as sort options, the concept of "keywords in context", links to help and search tips and the icon for further filtering of results which people thought looked like a martini glass (it was the Excel spreadsheet symbol for filter). Most of these items were replaced with text links.

The speakers, CAIJ’s Monique Stam and Anastasia Simitsis, User Experience Director with W.illi.am Digital Intelligence, used the Céline Dion example to emphasize a point.

User focus groups and surveys are insufficient to test (re)design ideas. Watching what potential users actually do when replicating real-life scenarios (e.g. trying to buy a CD for your mom) is required. The experience of listening to test participants think out loud as they try (and very frequently fail) to do stuff on the test site for your product or Intranet or online service is usually an eye opener (or a kick in the head) for project team members, designers and IT people.

They explained some of the possible flavours and techniques of usability testing, but they all offer similar benefits:

• identifying and fixing problems and ambiguous features early (“why does CAIJ have a martini glass on its results page?”)
• validating assumptions
• solving opinion battles among team members (web designer: "I think the filter pictogram should go here"; project manager: "No, I am sure the users will be more at ease if the filter is over there"; your boss: "I say the filter belongs next to the results"; of course, the test users are all going: "What's with the CAIJ and all their little martini glasses on my results page?")
• establishing a baseline to measure improvements
• reducing risk and reducing costs (it is way cheaper to fix problems at the earlier stages of (re)design than after launch).

Another Monday session on "Technology Project Management: Complexities and Challenges” offered three perspectives on how to manage large projects, and in particular the stakeholder expectations that are involved.

Julie Allard from the Quebec public corporation SOQUIJ shared her experiences with the design of the new product that will replace its AZIMUT Juris.doc legal information search tool in the fall of 2013. The project is highly complex, has incredibly short deadlines, involves a multidisciplinary team and clients are demanding. [SOQUIJ held a breakfast demo of its new search product on Tuesday morning. The coming changes can be easily summarized: extreme simplification of the interface. You search and find and manipulate results on just 2 screens. Everything happens on the first search screen and then on one single results screen. Full stop. Quite impressive.]

Getting the preliminary project planning right is key. This involves consulting customers and deciding what is and what is definitely NOT part of the project to maintain focus and avoid mission or project creep, probably the kiss of death of many projects. How many times does this simple truth get overlooked? Figure out what is NOT supposed to be part of the game plan and you will be happier.

Among the successful strategies Allard mentioned for not losing control:

• chunking the project into shorter cycles with precise interim deliverables to ensure the project team achieves small but constant victories along the way
• managing change requests – analyzing and documenting what their consequences would be and why they can be or cannot be implemented
• user testing, and quality assurance/control during the entire process to make sure any changes are in line with the needs expressed by customers (testing and quality assurance are too often overlooked until the very end)
• tracking problems and anomalies as well as tracking measures taken to address them

Managing stakeholders and their expectations requires a lot more thought than we often assume. In the case of SOQUIJ, they came up with a series of clear roles: a dedicated project manager, a project sponsor, a person to act as the representative of the customers, the project team, testers, etc. All clearly delineated roles.

Frédérique Tessier, project coordinator at Éducaloi, an award-winning website for public legal education, took the audience through the recent redesign of the site which included the complete reorganization of its content as well as migration to a new open source platform. The organization asked an outside firm to evaluate a list of prospective agencies who could manage the project in cooperation with Éducaloi members and external contributors (lawyer-writers). One was eventually chosen to lead the project.

Finding content seemed to be one problem with the old site. 10 users were recruited for a card sorting exercise to categorize the site’s hundreds of articles into a clearer classification scheme based on 10 broad topics (e.g. family), then broken down into nodes (“divorce”) and then into narrower areas (“child support”). On the page of any given article on the new site, there are links to other material within the same node and topic as well as in related nodes under different topics.

The final presenter at that session was François Montreuil, director of IT at Bibliothèque et Archives nationales du Québec (BAnQ). He focussed on streamlining stakeholder management during major technology projects.

BAnQ used to run projects with a 15-19 member project management committee to represent each sector of the institution, plus legal and the government. Meetings were long, unwieldy and many people were only there to defend their idea or turf. A new executive committee was created with 7 people that meets before the larger committee. It invites stakeholders to address it according to need and expertise and they are asked to leave after they have made their presentation. Actual projects are run by project teams with specific mandates and deadlines.

All three sessions presenters agreed there is no perfect structure for handling major technological projects. Whatever the structure adopted, clear communications with users and clear documentation and reporting are key elements.

 

 

]]> http://www.slaw.ca/2013/05/09/canadian-association-of-law-libraries-2013-conference-its-all-about-redesigning-to-stay-relevant/feed/ 0 http://www.slaw.ca/2013/05/09/lsucs-pickle/ http://www.slaw.ca/2013/05/09/lsucs-pickle/#comments Thu, 09 May 2013 14:06:51 +0000 Mitch Kowalski http://www.slaw.ca/?p=59696 The Law Society of Upper Canada (“LSUC”) held its annual general meeting last night. The meeting garnered more attention than it otherwise might have due to the mysterious last minute pulling of a motion that was received on March 28, 2013. This motion dealt with a study to enlarge the paralegal scope of practice. You can read the motion here.

There has not yet been an explanation behind the pulling of this motion–a motion that was proposed well in advance of the meeting.

So we are left to speculate.

It has never made any sense to me as to . . . [more]

]]> The Law Society of Upper Canada (“LSUC”) held its annual general meeting last night. The meeting garnered more attention than it otherwise might have due to the mysterious last minute pulling of a motion that was received on March 28, 2013. This motion dealt with a study to enlarge the paralegal scope of practice. You can read the motion here.

There has not yet been an explanation behind the pulling of this motion–a motion that was proposed well in advance of the meeting.

So we are left to speculate.

It has never made any sense to me as to how LSUC, which is run by a majority of lawyers, can regulate both lawyers and paralegals. In a profession that claims to have “core values” which include the avoidance of conflicts, it is hard to comprehend how LSUC can in good conscience, and in accordance with the profession's core values, regulate a competitor. I realize the folklore around this matter suggests that LSUC was forced, or asked, to regulate paralegals by the government of Ontario. Given the obvious conflict of interest, the proper response should have been “We hold dear to our core values, one of which is the avoidance of conflicts – so we are unable to regulate a competitor.”

Unfortunately Ontario Benchers chose to ignore a core value of the profession and jumped at the opportunity to regulate a competitor – arguably to better preserve the interests of lawyers.

LSUC is supposed to regulate in the public interest. Yet, the majority of Benchers are lawyers, many of which are elected by lawyers and lawyers are seen to be the constituents of Benchers – so LSUC has now become an organization that focuses on the wants and needs of lawyers, rather than what truly serves the public interest. We have already seen LSUC struggle when the interests of the public do not align with those of lawyers – the MDP fiasco comes to mind, as does the constant "studying" of outside investment in law firms.

And because LSUC ignored a core value of the profession in connection with paralegals, it now finds itself in a pickle.

Enlarging the scope of paralegal practice would clearly help address the access to justice problem in this province – this is in the public interest.

Yet, enlarging the scope of paralegal practice will take away business that is currently the sole purview of lawyers – this is not in lawyers’ interests.

It's therefore not hard to connect the dots on why the paralegal motion was pulled from the agenda – clearly a vocal section of the profession who do not want the paralegal scope of practice to be expanded, brought pressure to bear on LSUC to have the Motion removed from the agenda.

Does this reflect poorly on the profession and upon LSUC?

Only the people of Ontario can answer this question.

]]> http://www.slaw.ca/2013/05/09/lsucs-pickle/feed/ 20 http://www.slaw.ca/2013/05/09/thursday-thinkpiece-harper-on-the-crisis-in-the-legal-profession/ http://www.slaw.ca/2013/05/09/thursday-thinkpiece-harper-on-the-crisis-in-the-legal-profession/#comments Thu, 09 May 2013 11:00:51 +0000 Administrator http://www.slaw.ca/?p=59312

Each Thursday we present a significant excerpt, usually from a recently published book or journal article. In every case the proper permissions have been obtained. If you are a publisher who would like to participate in this feature, please let us know via the site's contact form.

The Lawyer Bubble: A Profession in Crisis Steven J. Harper New York: Basic Books, 2013

Excerpt from the Introduction chosen by the author.

INTRODUCTION

When I applied to law school in 1975, the nation was recovering from a severe and prolonged recession. Even so, I always assumed that I’d be able to make . . . [more]

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Each Thursday we present a significant excerpt, usually from a recently published book or journal article. In every case the proper permissions have been obtained. If you are a publisher who would like to participate in this feature, please let us know via the site's contact form.

The Lawyer Bubble: A Profession in Crisis
Steven J. Harper
New York: Basic Books, 2013

Excerpt from the Introduction chosen by the author.

INTRODUCTION

When I applied to law school in 1975, the nation was recovering from a severe and prolonged recession. Even so, I always assumed that I’d be able to make a comfortable living with a legal degree, although I didn’t think that practicing law would make me rich.

Three and a half years later, I became a new associate at one of the nation’s largest law firms, Kirkland & Ellis. It had about 150 attorneys in two offices, Chicago and Washington, D.C. My annual salary was $25,000, which is $80,000 in 2012 dollars. There were rumors that some partners in large firms earned as much as ten or fifteen times that amount; by any measure, that was and is a lot of money.

The unlikely prospect of amassing great wealth wasn’t what attracted me to the law. Rather, I saw it as a prestigious profession whose practitioners enjoyed personally satisfying careers in which they provided others with counsel, advice, judgment, and a unique set of skills. Mentors at my first and only law firm taught me to focus on a single result: high-quality work for clients. If I accomplished that goal, everything else would take care of itself.

Today, the business of law focuses law school deans and practitioners in big law firms on something else: maximizing immediate profits for their institutions. That has muddied the profession’s mission and, even worse, set it on a course to become yet another object lesson in the perils of short-term thinking. Like the dot-com, real estate, and financial bubbles that preceded it, the lawyer bubble won’t end well, either. But now is the time to consider its causes, stop its growth, and take steps that might soften the impact when it bursts.

The Lawyer Bubble is about much more than lawyers. It’s about a mentality that has accompanied the corporatization of America’s most important institutions, including the legal profession—a dramatic transformation that is still unfolding. Behind the change is a drive to boost current-year performance and profits at the expense of more enduring values for which there are no quantifiable measures. But omitting critical costs from the decision-making calculus doesn’t make them any less important or their damaging consequences any less profound.

. . . .

The lawyer bubble began to form when vital institutions—law schools and the American Bar Association (ABA)—abdicated their responsibilities in favor of misguided metrics and insularity. Law school deans are supposed to be the profession’s gatekeepers, but far too many have ceded independent judgment in an effort to satisfy the mindless criteria underlying law school rankings, especially U.S. News & World Report’s annual list. Those rankings didn’t exist until 1987; now they rule the law school world for both students and administrators. Flawed methodology infects each category—quality assessment, selectivity, placement, and resources. But with the acquiescence of the ABA, deans inflate their schools’ rankings with incomplete and misleading information and encourage prospective students to pursue dreams that, for most of them, are impossible, all in the name of increasing applications, enrollments, and tuition revenues.

Vulnerable young people become convinced that anyone can succeed as a lawyer. Because much of their undergraduate audience consists of liberal arts majors who can’t decide what to do next, law schools appear to be an attractive default option. Add a universal human affliction—confirmation bias—and the fit becomes too perfect: law schools tell prospective students what they want to hear, and sure enough, they hear it. The U.S. News rankings then tell them which schools to attend. Easy money for student loans fuels the entire system.

Meanwhile, the proliferation and growth of law schools offer a stark contrast to the shrinking job market. The number of JDs awarded annually grew from thirty-eight thousand in 2001 to more than forty-four thousand in 2011, but legal employment opportunities have trended in the opposite direction: nine months after graduation, only about half of the class of 2011 had secured long-term full-time work requiring a legal degree. Staggering educational debt burdens thousands of young attorneys who have no hope of getting the legal jobs that inspired them to incur those loans in the first place. Many of those lucky enough to find work in big law firms, traditionally the most envied segment of the profession, soon find themselves trapped in a hell of attorney dissatisfaction because the people running those firms now view their primary mission as perfecting a relatively new business model that prioritizes specially adapted metrics.

The big-law-firm analog to the U.S. News law school rankings had arrived a few years earlier when the American Lawyer, a publication that Yale Law School graduate Steven Brill founded, put out its first-ever list of the nation’s fifty largest law firms, the Am Law 50. Even more important, it disclosed average equity partner earnings for each. Beginning with the magazine’s inaugural issue in 1979, Brill had already begun reporting on the big money that some lawyers made. But the 1985 listing of the top firms—now referred to as “big law”—was a watershed event. A delicate subject that had been off-limits in polite company became a new, highly public basis for competition among lawyers, who are a fiercely competitive bunch. It hasn’t brought out the best in us.

Of course, lawyers are only one example of our cultural obsession with rankings. The search for supposedly objective certainty through the illusory comfort of a numerical answer makes any list of the supposed “best” or “top” of just about anything attractive. From high school football teams to liberal arts colleges to hospitals and more, any ranking takes on a life of its own. It guides consumer behavior and creates incentives for those who run the ranked institutions. But an emphasis on near-term results—namely, the organization’s immediately upcoming ranking—sacrifices enduring values.

The special role of the legal profession in our society made the impact of rankings particularly insidious. Big law became big business as a kind of arms race to the top of the new Am Law charts began. With the help of a new cottage industry—law firm management consultants—the prevailing business model for large law firms accelerated toward a handful of indicators that measure immediate results: billable hours, client billings, and associate-to-partner leverage ratios. Lost along the way to record equity partner profits were large elements of what once made the law a profession. To paraphrase the American Lawyer’s editor in chief, Aric Press, writing twenty-five years after the Am Law 50 first appeared, when the bonds of partnership are no stronger than last year’s IRS Form K-1 income statement, the essential attributes of partnership become casualties.

The principal victims of this phenomenon have been those lawyers who become trapped in the culture of short-termism. That culture is especially rampant among the prestigious big firms, where, as a group, attorneys are the unhappiest.

Excerpt adapted with permission from The Lawyer Bubble: A Profession in Crisis by Steven J. Harper. Available from Basic Books, a member of The Perseus Books Group. Copyright © 2013.

]]> http://www.slaw.ca/2013/05/09/thursday-thinkpiece-harper-on-the-crisis-in-the-legal-profession/feed/ 0 http://www.slaw.ca/2013/05/09/keep-the-change/ http://www.slaw.ca/2013/05/09/keep-the-change/#comments Thu, 09 May 2013 11:00:09 +0000 Bob Berring http://www.slaw.ca/?p=59360

Though my column focuses on legal information, in the United States legal education is intimately bound up with the trends in legal information. LEXIS and WESTLAW maintain a stranglehold on the marketplace by heavy investment in law school training. By putting boots on the ground in the form of dedicated training representatives, student advisors and, of course, free access 24/7 to the relevant systems, the big commercial data bases win hearts and minds. New law students are highly energized and very impressionable. What they find upon arrival in law school is, as far as they see it, the way things . . . [more]

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Though my column focuses on legal information, in the United States legal education is intimately bound up with the trends in legal information. LEXIS and WESTLAW maintain a stranglehold on the marketplace by heavy investment in law school training. By putting boots on the ground in the form of dedicated training representatives, student advisors and, of course, free access 24/7 to the relevant systems, the big commercial data bases win hearts and minds. New law students are highly energized and very impressionable. What they find upon arrival in law school is, as far as they see it, the way things have always been. But now legal education is on the brink of change, and with that change will come corresponding alterations in legal information.

The slowdown of the U.S. economy after 2008 produced a downward spiral in the market for new law school graduates. The resultant shake-out of law firms has allowed the firms to restructure themselves even as the economy crawls through its recovery. Fewer new hires are brought on board, fewer associates ever will become equity partners. Jobs in the public interest area are growing more and more competitive. Counter-intuitively while placement of recent graduates has grown more difficult, tuition at law schools has continued to rise. Debt loads for newly minted lawyers often reach into six figures. Very little thought is needed to explain the serious drop in law school applications this year. Everyone laments the situation, but now someone is doing something about it.

In the past four months the New York Times has carried a series of stories about the coming restructuring of legal education. Two op-ed pieces have graced its editorial pages, one tellingly authored by Dean Dan Rodriguez from Northwestern Law School, a top tier school. The American Bar Association has appointed a Task Force whose charge is to reshape the accreditation requirements for law schools, in fact to reconsider the entire structure of legal education in the U.S.. The Task Force has been made a high priority. It amuses me that other than Dean Rodriguez there has been very little heard from tenured faculty at top tier schools. This is a revolution that arises from the practicing Bar and working judges and adjunct faculty and regional law schools. The Ivory Towers may be surrounded.

What changes are afoot? One calls for offering a two year classroom experience with a placement into a supervised third year working environment. (Canadians may recognize the outlines of such a model). Drexel Law School in Philadelphia, a regional school that is part of a university that has been innovative in other fields, already offers a two year alternative. Drexel is ambitious with a young dean and a motivated faculty. Another possible change is the inclusion of more mandatory skills training. Some members of the practicing bar feel that it is not what you know, it is what you know how to do that counts. A third, and possibly the most frightening to the existing world of legal academia, is online law schools. Private players like Concord Law School have established a foothold in this field, but prestigious institutions, like my own, are looking at it now.

These changes will have a direct impact on legal information. If the accreditation rules change, I predict that many of the rules requiring accredited schools to hold specific sets of material in the library will be eliminated. A two year, skills-centered, law school will need materials, but they will be different. The LEXIS, WESTLAW and perhaps BLOOMBERG trainers, with the much desired knowledge management systems and ties to practice may be even more important, while our collections of books and data bases will pale in comparison. The concept of the online course, now fighting its way to legitimacy, may be the last straw to the centrality of the academic law library in the United States. A few great research collections may survive as historical museums of information but then we are becoming just that: museums.

If academic libraries fall into desuetude, the firms will follow. In San Francisco the local government is moving the Count Law Library into a new (old) facility on the understanding that books are vestigial. This is not news to most readers of this Blog, but it is one thing to know something is going to happen and it quite another to see it unfold. It may all be for the best, but I worry that much that is worthwhile will be lost along the way.

]]> http://www.slaw.ca/2013/05/09/keep-the-change/feed/ 1 http://www.slaw.ca/2013/05/08/macfarlane-study-on-self-represented-litigants-released/ http://www.slaw.ca/2013/05/08/macfarlane-study-on-self-represented-litigants-released/#comments Wed, 08 May 2013 20:00:12 +0000 Simon Fodden http://www.slaw.ca/?p=59693 The National Self Represented Litigants Project headed by University of Windsor prof Julie Macfarlane has released its report, "Identifying and Meeting the Needs of Self-Represented Litigants.". There is also available an executive summary of the report.

The Project interviewed 283 self-represented litigants from Ontario, Alberta and British Columbia, as well as 107 providers of advice or other legal service.

Despite the presence of a large amount of online information relevant to their legal issues, a large number of the litigants became confused and overwhelmed by the tasks involved in self-representation, finding the online material not helpful in addressing . . . [more]

]]> The National Self Represented Litigants Project headed by University of Windsor prof Julie Macfarlane has released its report, "Identifying and Meeting the Needs of Self-Represented Litigants.". There is also available an executive summary of the report.

The Project interviewed 283 self-represented litigants from Ontario, Alberta and British Columbia, as well as 107 providers of advice or other legal service.

Despite the presence of a large amount of online information relevant to their legal issues, a large number of the litigants became confused and overwhelmed by the tasks involved in self-representation, finding the online material not helpful in addressing the particular practical steps they faced in the legal process. The executive summary concludes, generally:

The study data illustrates a range of negative consequences experienced by SRL’s as a result of representing themselves. These include depletion of personal funds and savings for other purposes; instability or loss of employment caused by the amount of time required to manage their legal case; social and emotional isolation from friends and family as the case becomes increasingly complex and overwhelming; and a myriad of health issues both physical and emotionally.

The 150 page report contains a fair number of detailed "preliminary" recommendations, addressing such matters as the filling of court forms, the nature of online information, the re-examination of the current distinction between legal information and legal advice, and the unbundling of legal services.

The study was financed by the Law Foundations of the three provinces involved.

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