Mozilla utilizes open education resources to improve participation | Opensource.com https://opensource.com/education/15/3/mozilla-community-education
In the days of electronic access, judicial decisions (and sometimes other court records that have always been public in principle) no longer benefit from practical obscurity. Court have had to wrestle with the consequences of this, including tailoring the way decisions are written to reduce the amount of personal information they contain.
The Canadian Judicial Council has published material on this, as have the federal and state courts in the US.
Recently a US lawyer proposed that databases of court decisions should block search engines from indexing the decisions – a block that is very easy to implement, with a robots.txt notice put in the metadata of the site containing the decisions.
Is that a good idea? It would not bar access to those who know where to look (such as Can LII for Canadian decisions), but it would keep the casual searcher from stumbling upon potentially intimate, disputed or outdated information about people who may not have been voluntarily engaged in litigation.
Should Canadian court databases do this? What is CanLII’s policy?
New TLDs (top level domains) continue to become live. There are hundreds to choose from. Gone is the day that there were only a handful, and a business could tie them all up for their corporate name and brands.
Also gone is the day that they are all inexpensive. Some of the new TLDs command a premium price. A .lawyer TLD, for example, costs US$6500. A .guru domain is a bargain at US$29.
This Yahoo article talks about the .sucks TLD, which will be in the sunrise period on March 30, and generally available 60 days later. Some think brands should pay the US$2500 to secure their brand.sucks domain name to keep it out of the hands of others, while some think that’s a waste of time and money.
Most of the new TLDs would be irrelevant to businesses that are not in the niche intended for the TLD, such as .vacations or .guitars. But others, such as .sucks or .help are more generic and could be used by almost anyone. Businesses and celebrities have obtained their own names for TLDs that could be used for purposes that could be derogatory or contrary to their image simply to park them and prevent their use. And there might be merit in getting ones like brand.help for one’s own use.
But there is a limit to what makes sense and what is affordable.
As John Gregory reported in a recent SLAW post, the Ontario government is looking at online dispute resolution (ODR) for a variety of provincial offences. The system could start with minor traffic offences, and be expanded to other provincial and municipal offences, such as parking and by-law violations.
The proposal reflects a growing trend toward ODR for both civil and administrative matters.
The Ontario consultation document notes the high cost of dealing with provincial offences, with about 1.6 million charges laid annually. In Toronto alone, for example, provincial offences courts cost about $50 million a year, plus $5.5 million paid to police to appear in court.
The inconvenience, time and cost for a person to go to court are also major deterrents to fight a ticket and, therefore, a barrier to access to justice.
The Ministry of the Attorney General says it is looking for ideas for an online system that:
Technically, the ODR system would result in “administrative monetary penalties,” rather than judicial fines, but for all practical purposes it amounts to the same thing.
The consultation paper talks about “proportionality” as an important access to justice principle. Scarce resources, including judges and court facilities, ought to be used for the most serious matters. Other offences can be dealt with through more informal procedures.
The paper notes that other provinces have launched initiatives to resolve civil disputes using online technology. BC is using ODR for tenancy and consumer disputes, as well as property assessment appeals.
Alberta has launched a pilot program to take traffic offenses out of court, to be heard by an independent adjudicator (though that program still requires an appearance in person, rather than online adjudication).
In the UK, the Civil Justice Council is proposing an online system for adjudicating smaller civil claims (up to £25,000) without having to appear in person to give evidence. As reported by the Independent newspaper, judges would decide cases online after analyzing documents submitted electronically, with an option of telephone hearings. The proposal is said to be modeled on the eBay and PayPal Resolution Centers, which are the largest ODR platforms in the world, resolving more than 60 million disputes a year.
The UK already has an online system, run by the Traffic Penalty Tribunal, which arbitrates disputes between motorists and local municipalities in England and Wales. The online portal allows people to appeal fines, upload evidence and follow cases and hearings. Each government authority also has a dashboard showing current cases, enabling them to submit evidence and follow the progress of hearings and decisions.
This seems to be very similar to the Ontario proposal, although the consultation document notes that “the design elements of a delivery model, such as an online dispute resolution system, will require further consultation with technology and legal experts.” There will also have to be future consultation with the public and local authorities on how to implement a province-wide ODR system.
Technical resources are bound to be an issue in rolling out any ODR project. Ontario is already far behind many jurisdictions in making its courts accessible electronically.
In the UK, members of the legal profession complain that the government has not spent enough money to support existing initiatives, let alone the new ODR plan being proposed. Civil courts lack both staff and IT resources, they say, and recent budget cuts are making the situation worse.
And in Europe, where the “Regulation on Consumer Online Dispute Resolution” (ODR Regulation) and the “Directive on Consumer Alternative Dispute Resolution” (ADR Directive), adopted in 2013, are leading to the creation of out-of-court dispute resolution systems for consumer transactions, commentators are debating how to ensure online systems are fair, accessible and respect due process.
The ADR Directive allows consumers to refer disputes over goods and services purchased online and offline to private dispute resolution entities. Disputes arising from online transactions will be referred to a EU-wide ODR platform, which will then transfer the case to an appropriate ADR entity. It is expected that the ODR platform will be launched in 2016.
Guest columnist Anastasia Konina, writing recently in the online journal Jurist, says: “the proposed system of consumer rights enforcement has been heavily criticized for a number of reasons, such as “putting efficiency above judicial scrutiny,” loss of public access, pressure due to general confidentiality of ADR and ODR proceedings and banning access to courts.”
These are all issues that will have to be considered in Ontario’s proposal to adopt ODR and administrative penalties for provincial offences.
The Ontario Ministry is accepting submissions (electronic or paper) until April 14, 2015.
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 this last week:
1. Nissen v. Durham Regional Police, 2015 ONSC 1268
 In a criminal law context, “informer” privilege is almost absolute. What this means is that a person who provides information to police about actual or suspected criminal activity, in exchange for a promise of anonymity, is guaranteed that anonymity will be preserved. It is only where innocence is at stake that the privilege must give way. In any litigation, whether civil or criminal, the police, the Crown and the courts must protect the privilege. Even the right to full disclosure, which is part of the constitutional right to make full answer and defence, will not override the privilege.
 In this case, the court is confronted with the civil consequences of a breach of the privilege. Where the privilege is not observed, is the now-disclosed informer entitled to civil damages? That is the issue confronting the court in this case.
2. Jacobson v. Skurka, 2015 ONSC 1699
 In my opinion, most if not all of the evidentiary details provided by Mr. Skurka cannot be justified by the purposes of particulars. The evidentiary details are the means by which Mr. Skurka intends to prove his defence that he was not negligent or in breach of fiduciary duty and his allegation that Mr. Jacobson suffered no damages because he is not an innocent man. The above analysis reveals that much of the so-called particulars are just a responsive polemic that will just provoke a further polemic in the Reply and Defence to the Counterclaim.
 For these reasons, I strike the Statement of Defence and Counterclaim in its entirety with leave to deliver a Fresh as Amended Statement of Defence and Counterclaim.
3. Loyola High School v. Quebec (Attorney General), 2015 SCC 12
 Since September 2008, as part of the mandatory core curriculum in schools across Quebec, the Minister of Education, Recreation and Sports has required a Program on Ethics and Religious Culture (ERC), which teaches about the beliefs and ethics of different world religions from a neutral and objective perspective. Like all courses in the mandatory curriculum, the Minister may grant private schools an exemption from the ERC Program if they offer an alternative program that the Minister deems to be equivalent.
 This appeal results from a judicial review of the Minister’s decision to deny an exemption sought by a private, Catholic school. The Minister based her decision on the fact that the school’s whole proposed program was to be taught from a Catholic perspective. It was not, as a result, “equivalent” to the ERC Program. The school submits that this is an interference with its religious freedom. The Minister submits that it is a necessary strategy to ensure that students are knowledgeable about and respectful of the differences of others. In a sense, they are both right…
The most-consulted French-language decision was École secondaire Loyola c. Québec (Procureur général), 2015 CSC 12:
 Depuis septembre 2008, le ministre de l’Éducation, du Loisir et du Sport exige que le programme Éthique et culture religieuse (ÉCR) soit intégré aux matières obligatoires pour l’ensemble des écoles du Québec. Dans le cadre de ce programme, on présente, d’un point de vue neutre et objectif, les croyances et l’éthique de différentes religions du monde. Comme pour tous les cours du programme obligatoire, le ministre peut exempter certaines écoles privées du programme ÉCR si elles offrent un programme de remplacement qu’il juge équivalent.
 Le présent pourvoi résulte du contrôle judiciaire d’une décision de la ministre refusant une telle exemption à une école privée catholique. La ministre a fondé sa décision sur le fait que l’ensemble du programme proposé par l’école allait être enseigné selon une perspective catholique. Par conséquent, le programme n’était pas « équivalent » au programme ÉCR. L’école soutient que cette intervention de la ministre porte atteinte à sa liberté de religion. La ministre plaide que la neutralité de l’enseignement constitue une stratégie nécessaire pour s’assurer que les élèves connaissent et respectent les différences. En un sens, la ministre et l’école ont toutes deux raison . . .
* As of January 2014 we measure the total amount of time spent on the pages rather than simply the number of hits; as well, a case once mentioned won’t appear again for three months.
If you are interested in mindfulness or meditation as a way to reduce the stress of your law practice, you are probably already reading Jeena Cho’s articles on Lawyerist, but you should also check out her new podcast, Resilient Lawyer. Here is the latest episode:
Edit: Here’s the Will Meyerhofer interview (it’s a sneak peek!):
I have been absent from Slaw for a couple of months while I wrapped up an extended stint as a student in the Villanova University Master Certificate in Six Sigma program. I have finished the part of my learning that requires a university ID number. I have not lost my interest in continued learning in the area of defining, measuring, analysing, improving and controlling the processes that help my organization give excellent client service. Like many Slaw readers, I look forward to the next educative moment – which is just around the corner!
This May, I am looking forward to the Canadian Association of Law Libraries 52nd Annual Conference and in particular, the Pre Conference Workshop titled Measuring for What Matters: Demonstrating Value & Operational Excellence.
You may be thinking, why are you going to attend and pay for a session that has a substantially similar topic to one you just paid tuition for?
One of the great things about a session of this type is rather than being in a virtual class with students and professors from all over the world with areas of expertise from military to healthcare to finance to manufacturing, I will be in a small group of industry specific specialists. The presenter, consultant Rebecca Jones, is a well respected presenter on this topic and will paint a picture that will be relevant to my specific learning needs. My classmates will be people who have experiences that overlap mine and will share successes and challenges that I can immediately relate to.
Please don’t misunderstand; I thoroughly enjoyed my formal course work. I would not hesitate to recommend the Villanova University program to others, including law librarians and lawyers interested in process improvement. Learning IS a form of continuous improvement and this Pre Conference session is an improvement opportunity I don’t want to miss.
Augmented Traffic Control (ATC) is a tool to simulate network conditions. It allows controlling the connection that a device has to the internet. Aspects of the connection that can be controlled include:
bandwidth, latency, packet loss, corrupted packets, packets ordering
In order to be able to shape the network traffic, ATC must be running on a device that routes the traffic and sees the real IP address of the device, like your network gateway for instance.
This tool should be useful to anyone building an app on the network. CALI could use this to test behavior of Lessons on a bad connection, something we’ve been thinking about recently.
The Toronto Star posted an interesting story this past weekend discussing how courtroom innovations in New York, the U.K. and Windsor, Ontario are helping self-represented litigants navigate the legal waters.
You can read the story here.
There is a complete absence of mention of what is being done in Toronto. If the answer is “nothing”, then perhaps we should all be looking at what can be done.
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.
There are loads of music streaming sites on the web. One of the best is Songza.com. It suggests different playlists for the mood you are in and it has playlists for every conceivable music type. There is a Music Concierge that will give you options like Brand New Music, Working to a Beat, Working (no lyrics), Boosting your Energy, Basking in the Sun …
Watch for Edits of Not Yet in Force Acts
Once in a while a legislature will pass an act and then make amendments to it before it comes in to force. Just when you think you have everything figured out…. An example of this from Alberta is referenced in CanLII as Education Act, SA 2012, c E-0.3 , [Not yet in force] along with Bill 19 the Education Amendment Act, 2015 introduced yesterday in the Alberta legislature. …
Late Lawyers (And Other Musings)
New York City’s embattled, progressive mayor, Bill de Blasio, has in rapid order acquired a bit of a reputation for failing to arrive on time. His tardy tendencies have even launched a new cottage industry in the press, the “De Blasio was Late Again” outrage-of-the-day story….
It happens all the time in organizations, people get so busy doing their own work they stop hearing what other people in the company are working on. Although understandable to some extent, there are two really big issues that can arise because of it – both of which affect your clients.
We are all trying to get more revenue out of the clients we already have. Unfortunately we know that too many people only focus on the work they do for a client and we fail to learn as much as we can about the client. This has been discussed over and over again and at its plainest position, we need to do a better job asking questions.
The other – which may be more alarming – is we fail to learn enough about our own firm’s capabilities. Recently I heard about a firm that was outsourcing work because the primary people involved did not know that their firm had the capabilities in-house. The worst part about it was they had been doing it for years until someone finally noticed.
When a firm brings in a new practice or branches out to a new service area, it is simply not enough to tell staff once. A single communication announcing a major change doesn’t work. Regular on-going dialogue in multiple formats is essential to establishing understanding on the new area and how to market that new area internally and externally. If you don’t, you may end up in the situation where you are throwing away revenue by sending work out of your firm.
When you register for a course, you often have a choice: in-person or online. But at Peirce College, you don’t have to pick one or the other. All students will soon get access to both formats in the same course.
Peirce, a college in Philadelphia that caters specifically to adult learners, plans to allow its students to switch back and forth between attending class in person or online, based on which is more convenient for them on a given week. The flexible delivery model will be offered in certain programs this fall and it will be extended to the college’s entire curriculum by September of 2016. The initiative is part of the college’s 2015-2018 strategic plan.
Last year the college ran a pilot program to see how students would respond to the new flexibility, and the results were promising, said Stephanie Donovan, assistant professor and faculty chair for health programs.
Students who took courses in Session 3 with the new delivery model had much better attendance than students who had participated in Session 3 the year before, Ms. Donovan said. Absenteeism fell from 10.2 percent to 1.4 percent.
Peirce has many students who describe themselves as “very compliant, goody-two shoes” types, Ms. Donovan said. For students like this, missing class can be a source of anxiety. Students indicated that the new system would allow them to miss class for illnesses, child care, or other commitments without having to feel guilty, because they could complete their coursework online instead, Ms. Donovan said.
Some students might plan to take their classes in person, but use the online component to review information if they didn’t understand something. Others might plan to take most of their classes online, but make a trip to campus if they’re struggling with a concept and want to discuss it further with a professor.
Peirce College has already worked to make its programs easily accessible – all courses are offered online and in person — but students were looking for even more flexibility, said James J. Mergiotti, the college’s president and chief executive. The college “wanted to take it to the next level,” he said.
And the new model shouldn’t create much extra work for professors — they all already teach their courses in both formats, said Rita J. Toliver-Roberts, vice president for academic advancement.
Peirce students lead busy lives, so it’s the mission of the college to make higher education fit easily into them. A delivery method that gives students options does the trick. “It’s just a perfect fit in terms of what we’re trying to accomplish,” Mr. Mergiotti said.
I’ve written updates before on encryption for communications and why the legal profession should be interested in tools and trends like encrypted ephemeral messaging, Edward Snowden’s warnings for legal professionals, and the upcoming Chrome extension for end-to-end email encryption.
Much of the whys and wherefores around encryption and Privacy Enhancing Technologies (“PETs”) and their place in legal practice are part of a broader conversation around lawyers’ digital competency — such as what Amy Salyzyn often writes about here on Slaw. This in turn engages the larger topic of internet security (and for a general background see this recent article written by folks at NYU Law which covers key moments of modern internet security history, from the so-called “crypto wars” to the post-Snowden era).
For lawyers, it is settled that using technology requires you to either have a reasonable understanding of the technology used in the lawyer’s practice or access to someone who has such an understanding. I say it’s settled because that is pretty much a direct quote from a Federation of Law Societies of Canada guideline issued thirteen years ago. But it sounds sort of, well, like a gigantic platitude.
What do we exercise when it comes to technological choice really? Can I exclude being an email user? Can I choose to run a practice without a computer? And what constitutes a reasonable understanding of these systems?
Many (most?) of the communications technologies we use are mysteries to us non-expert users. We didn’t invite advances in technology, but they turned up and updated our devices with the newest firmware anyway. They brought electronic banking, e-discovery and electronic filing to us whether we asked for it or not. And who is choosing to be part of this “Internet of Things”? Or is that car you just bought and that new internet router, or that tablet you just downloaded apps on smuggling inter-connectivity into your life in ways you’re not really sure about? Did you choose to rely on a global cell phone system that uses SIM card technology that the NSA and GCHQ hacked? Or did that just happen to you, as it did for the other people who use AT&T, T-Mobile, Verizon, Sprint and 450 other wireless network providers around the world who got one of the 2 billion SIM cards produced by Gemalto last year?
Increasingly, and alarmingly, it seems a reasonable understanding (at least with respect to data privacy and security) is most fundamentally a recognition that we are vulnerable — probably in more ways than we appreciate, and probably in some way that your retainer should broadly disclaim if we use anything more advanced than a stapler in your office. But how is that protection? How is that anything but a pact of abnegation of risk?
Since there is only so much profit in preaching fear, I’ll focus on some tools and a couple of updates in the realm of Privacy Enhancing Technology that might materially contribute to client confidentiality.
Tutanota recently announced that it is leaving Beta as of March 24, 2015, claiming the company is “confident that no security issues remain in the code”. The encrypted email service lets you quickly engage in encrypted email correspondence. Tutanota (Latin for “secure note”) has iOS and Android apps, and uses a key that you arrange with your correspondents. It’s hosted on German data centers, was released as open source in September 2014, and while you are currently limited to an email on a Tutanota domain, you will soon be able use their encrypted webmail service using your own domain name — and according to their forums it may be as early as April or May this year.
Tutanota is one of a few encryption email services sprinting to the finish line. Last year I wrote about the Google “End-To-End” extension, but there is also the swiss-based Protonmail — which is still in Beta — as well as Lavaboom, which I have been trying to get beta access to for some time, but is also still under wraps.
As with all “zero knowledge” tools, these services don’t store your password/key on their servers, so the encrypted data is more secure from coerced access.
I’m also going to share a link to this list of major security software programs and operating systems. Perhaps a bit overkill, but depending on your clients, perhaps not. The list includes:
The purpose of personas is to create reliable and realistic representations of your key audience segments for reference. These representations should be based on qualitative and some quantitative user research and web analytics. Remember, your personas are only as good as the research behind them. Effective personas:
Represent a major user group for your website
Express and focus on the major needs and expectations of the most important user groups
Give a clear picture of the user’s expectations and how they’re likely to use the site
Aid in uncovering universal features and functionality
Describe real people with backgrounds, goals, and values
On the face of it, interviewing should not be all that difficult – particularly for lawyers. As members of a profession who primarily make their living either writing or speaking, the idea that having a conversation about your interests and abilities in your own profession sounds both logical and easy.
But throw the words “job interview” into the mix and a whole new paradigm emerges. With seemingly so much at stake, job interviews take on a new meaning for people who ordinarily would not shy away from talking about the field they have chosen and the background that they bring.
At the same time, it also seems that candidates often appear at interviews unprepared for a conversation in which they have voluntarily decided to participate.
Here are some thoughts from the January 2012 issue of LAWPRO Magazine about making the most of a difficult process, and in the end making good decisions about where you want to work.
How one professor saves students millions with his shared textbooks, an Interview with David Lippman of Pierce College | Opensource.com. https://opensource.com/education/15/3/interview-david-lippman-pierce-college
Lippman is also the creator of IMathAS, an open source, web based assessment system written in PHP.
In January 2015, the Ontario Superior Court provided another example of how, as an employer, if you’re going to terminate an employee for cause, you better have a good case backed by solid evidence. The case, Partridge v. Botony Dental Corporation, 2015 ONSC 343 (CanLII), is a relatively simple one. The employee, a dental hygenist, Ms. Lee Partridge, was terminated for cause by her employer, Botony Dental Corporation, after 7 years of employment. On her record of employment and in defence, the Employer alleged versions of the following grounds for termination:
Partridge chose to reject her former position as office manager on return from maternity leave, or that she demanded that the office hours be changed; or
Partridge systematically harassed coworkers and management; or
Partridge acted insolently or displayed insubordination; or
Partridge solicited Botony’s employees to open a competing business; or
Partridge copied confidential client records for the purpose of establishing a competing business; or
Partridge solicited patients for that purpose; or
That the removal by Partridge of one or two day sheets constitutes just grounds for dismissal.
The Employer also counter-claimed for $400,000 in lost revenue due to the alleged solicitation and removal of confidential client information(!). After reviewing all of the evidence, the Court concluded that the Employer was able to prove none of these alleged facts to a sufficient degree to justify cause. The Court found that Ms. Partridge had not been given one performance review during her tenure, had received text messages from her employer saying “love you”, “you’re the best” and “I really appreciate all that you do” and had received a raise in the past. In short, there was no documentary evidence in support of the employee’s termination for cause. I can’t neglect to mention that Ms. Patridge had just returned from a maternity leave when she was terminated and that this was determined to be a factor in her termination.
Ms. Patridge was awarded 12 months of pay-in-lieu of notice (less some mitigation) and an additional $20,000 in damages for breach of the Human Rights Code. 12 months is a significant amount of notice for an employee with 7 years’ service – a reality which the Court attributed to her struggles to find employment. However, one can’t help but imagine if the inability of the Defendant to prove any of the allegations and their counter-claim played a factor in the heavier penalty.
Bottom line? It is entirely possible that the Employer could have had a case for cause. However, in court, it doesn’t count if you can’t prove it. Proving it requires documents and facts. I wonder what kind of advice (if any) the Employer relied on in coming to the decision to terminate for cause and then, in deciding to litigate the matter so aggressively. It always helps to talk to a good employment lawyer before making these major decisions… A few hundred dollars of advice in the present can save thousands in the future.