In his concurrence on a criminal justice opinion, the ever-irascible Judge Richard Posner takes aim at many phrases that most judges (and lawyers) love. He was perfectly happy with the outcome of the case, which upheld a drug sales conviction. He’s just mad about how the majority opinion was written.
“I disagree merely with the rhetorical envelope in which so many judicial decisions are delivered to the reader,” he writes.
Among the phrases Posner slams:
• “Great deference.” Why give “great deference” to probable cause determinations by magistrates who are “certain or almost” certain to approve them?
• “Actual guilt” and “actual innocence.” Why not use the simpler terms “innocence” and “guilt”?
• The “heavy, nearly insurmountable burden” of proof for defendants challenging the sufficiency of evidence. The phrase appears to be “hyperbole,” and why should the defendant have this high burden?We Don’t Know Much at All about How the Criminal Justice System Operates
Over at the Marshall Project, there is a piece that highlights just how little data we have about policing. The White House set up a police data initiative, but it is voluntary, and participation has been less than spectacular, to say the least.
Of nearly 18,000 police agencies from coast to coast, just 53 had signed on to the effort. Of that inaugural class, eight released data on officer-involved shootings, and six published information on their officers’ use of force.
Because the data gathering is so poor, there are huge categories of things about which we know nearly nothing, including:
If you’re looking for a comprehensive list of legal tech companies, Stanford has got you covered. Apparently there are now 539 (!) companies in the field. The list is divided into eight categories, including document automation, practice management, and analytics.Top Rates for BigLaw are Now an Absurd $2,000/Hour
Yes, $2,000 per hour. You read that right. In-house counsel will pay twenty Benjamins per hour to external law firm attorneys when they face “bet-the-company IP work, enterprise level M&A litigation, large-scale government investigation, and defense against high-profile activist hedge funds.”New Jersey Says Lawyers Are Mis-Using the Term ‘Super Lawyers’ in Advertising
It may seem at times that everyone is able to call themselves a Super Lawyer or a Rising Star, without any real context as to what that means. The New Jersey Supreme Court Committee on Lawyer Advertising is not terribly fond of that and issued a reminder as to what additional information needs to be included if a lawyer chooses to use those terms when advertising their services.
Lawyers may refer to such honors in their advertising “only when the basis for comparison can be verified” and the group bestowing the accolade “has made adequate inquiry into the fitness of the individual lawyer.” […]
The inquiry into fitness has to be more rigorous than a simple tally of years in practice and lack of disciplinary history, according to the committee. Honors that don’t involve a bona fide fitness inquiry include popularity contests that tally votes by telephone, text or email.
When an award meets this preliminary test, lawyers who want to use it must provide a description of the award methodology, either in the advertising or by reference to a “convenient, publicly available source,” the notice says.
Bottom line: at least in New Jersey, if the sole grounds for your Super status is that a lot of your friends voted for you, it does not meet the test that would allow you to use it in your advertising.
Briefs: Posner Gets Mad at Legal Jargon, BigLaw Rates Hit $2,000/Hour, Etc. was originally published on Lawyerist.com.
Lawyers do some crazy things to get links to their websites. From posting spammy blog comments, to crappy infographics, to sending email spam to bloggers, to spinning up unreadable articles, to linking 50 websites together.
Seriously, lawyers have tried it all.
At the other end of the spectrum, you have the equally misinformed “if you write it, search traffic, inquiries, and clients will come” crowd. That’s not to say becoming a recognized authority on a niche subject can’t earn you links; it most certainly can. But it takes a lot of work, a long time, and typically cannot be outsourced.
But let’s not kid ourselves. Getting ranked favorably in Google’s search results is not exactly a white hat wonderland.
There’s plenty of blame to go around for crappy Internet legal marketing. But instead of lamenting the loss of a simpler time in legal marketing, let’s cut through the BS and talk about what solo and small firm lawyers can actually do to earn links that drive inquiries from potential clients.The Importance of Links
While there are some who predict the death of links, acquiring quality links has long been—and continues to remain—critical to success in search. In fact, quite recently, Andrey Lipattsev, Search Quality Senior Strategist at Google, confirmed links & content are the most important ranking signals that Google uses.
Before we explore some of the ways I’ve seen links help lawyers earn meaningful traffic, here are a few obligatory disclaimers for the uninitiated:
Now that you’ve sobered up a bit, let’s examine a few ways lawyers build links that matter.Internal Links You are probably overlooking an important source of links: your own web pages.
I suspect some of the search-savvy among you expected to jump directly to external links (other web pages pointing to your web pages). But if my suspicions are correct, you are probably overlooking an important source of links: your own web pages.
The power of internal linking is regularly overlooked by novice and experienced SEO experts. Old-school webmasters probably remember when on-page signals reigned and building intricate internal link schemes could propel pages to the top of the search results. Like most things in the search world, internal links were widely abused, causing search engines to adjust, but not abandon, these signals.
In fact, internal links make up part of the content soup Andrey Lipattsev referred to in the video above.
To get a better sense of how search engines work and why internal links matter, I recommend checking out Paul Haahr’s presentation at SMX West 2016:
Internal links play a role in three major components of search.1. Discovery
Internal links help search engines find your pages. The most basic rule here is to make sure all of your pages can be found and crawled by a link from another page.
All hypertext links should also include contextually descriptive words relevant to the page to which they point. For example, a link that points to your contact page should probably include “contact” as part of the anchor text.2. Context
Like page titles, internal links help search engines understand what your pages are about. This is critically important to whether your page will even be considered as part of a search engines what pages to consider analysis (i.e. relevance to the query).3. Usability
Internal links help visitors use your site, and it’s not always obvious or intuitive how your visitors will navigate your site. I encourage you to read Dr. Pete’s The 2 User Metrics That Matter for SEO. But in a nutshell, search engines want to deliver results that satisfy their users’ queries.
Useful internal links attract a visitor’s attention and compel them to click through to another page on your site. This gives you additional opportunities to supply your visitor’s demand for information and may reduce the chance that the visitor will return to the search engine to perform the same query. This tells the search engine your web pages satisfied the user’s query, potentially improving your site’s ranking for that query.Creating and Maintaining Internal Link Structures
If you’re building a new site from scratch, you ought to spend some time considering your site’s internal link structure. I see too many legal websites that implement haphazard navigation, category, and tag structures. This is particularly problematic for WordPress sites (mostly because WordPress makes it so easy to create these elements).
Think about the information that will be most important to your potential clients, and then tell search engines that those pages are more important through well-organized internal links. In other words, would a visitor to Page X be interested Page Y? If so, make it easy for the visitor to quickly find and click on that page.
In my view, there’s no single correct way to organize a site. However, it’s usually pretty easy to tell how well a site is organized from its internal link structure. If you’re just getting started, I encourage you to read Everything You Need To Know About SEO Web Structure & Internal Links by Tom Schmitz. It’s a few years old, but Schmitz’s book still contains a lot of great information related to organizing internal links.
If you already have an unruly site, you’re going to need to look into “crawling” your website to get a sense of what your internal linking structure looks like. I’m partial to Screaming Frog’s SEO Spider Tool. In this context, pay particular attention to the Internal tab and internal inlinks and outlinks. Check to see if your site follows a logical internal linking structure that would be useful for visitors.
It’s also useful to compare your internal linking structure to your competitors who appear prominently in search rankings for relevant terms.
You should also check to see whether any of your internal links are broken (i.e. return a 404 error) or include unnecessary redirect chains (i.e. return 301 or 302 errors). These can send mixed signals to users and search engines.
Finally, be mindful of how you link out to other sites. Google recently issued link penalties for patterns of unnatural outbound links. If you have participated in certain incestuous outbound link schemes, consider yourself at risk to be penalized.External Links
External links point at a domain different from the domain on which the link exists.
Most search marketers agree that signals related to these links play a significant role in how search engines order relevant pages for a search query. But …
External links aren’t equal. At the risk of stating the obvious, links aren’t equal. Further, their inequality isn’t like linear inequality; it’s more exponential or logarithmic. This makes focusing solely on quantity a losing game.
Don’t rely on one metric. The most common metrics we have to determine link quality aren’t very reliable. I’m not going to be able to completely untangle this here, but don’t obsess solely on metrics like domain authority. That’s not intended as an indictment on those metrics, it’s just that search engine ranking soup is complex and nuanced.
Spam still works. Search engines are good and getting better, but they’re not perfect. While I tend to recommend taking a long-term approach to link building, I’m sure many of you have plenty of counter-examples of aggressive spammy link building that just works. At least until it doesn’t.
It’s complicated. A cynical person might suggest that search engines are interested in spreading misinformation and creating FUD around what works. A less cynical person might suggest that search engines release aspirational information—suggesting where it is trying to go, as opposed to what’s working today.
Each lawyer must decide their own link-risk tolerance.
Now let’s look at some examples of ways solo and small firm lawyers can build links that matter without breaking the bank.Local Links
As search engines evolve, they are getting better at delivering personalized, localized results to their users. For many solo and small firm lawyers who want to be found online by people in their local communities, local link building should be made priority. But local link building is a lot less about link-begging and buying and much more about taking a leadership role and developing relationships in your community.
Local results are based primarily on relevance, distance, and prominence. These factors are combined to help find the best match for your search. For example, Google algorithms might decide that a business that’s farther away from your location is more likely to have what you’re looking for than a business that’s closer, and therefore rank it higher in local results.
Prominence refers to how well-known a business is. Some places are more prominent in the offline world, and search results try to reflect this in local ranking. For example, famous museums, landmark hotels, or well-known store brands that are familiar to many people are also likely to be prominent in local search results.
Prominence is also based on information that Google has about a business from across the web (like links, articles, and directories). Google review count and score are factored into local search ranking: more reviews and positive ratings will probably improve a business’s local ranking. Your position in web results is also a factor, so SEO best practices also apply to local search optimization.
Let’s start with a few lay-ups. Listing your firm in legitimate local business directories is typically easy and free. You’ll usually be able to determine the legitimacy of a directory by simply looking at the site. If the directory site looks like it hasn’t been updated since the 90s, contains a series of hyphens in the domain, or is heavily littered with AdSense or other ads, it’s probably not even worth your time.
On the other hand, if the directory lives within a legitimate site, like your local municipality’s official site, then it makes more sense to complete a listing.
Even better than general local business directories are legitimate local legal directories. Again, these might also be found within local legal organization websites.
Using the Ahrefs Site Explorer Tool, I sifted through a couple of search prominent law firm websites from around the country. You can do this too.
Here are two examples:
You can also earn these relevant, highly-local links by being active in your local community. Here are a few more ideas:
These are the type of things you should be doing anyway.
It can also be useful to participate in online conversations at local blogs and forums. Not only do these matter to search engines, but they’re also likely to get clicked by real people who actually need your help.Content Marketing
You’ve probably heard that if you focus on just writing great content, links, ranking, and visitors will just appear.
If you’re a talented, prolific writer, they might. And even if you’re not, you might get lucky here and there. But if you’re in a competitive practice area and location, you’re probably going to have to do something beyond merely pushing publish.
The best way to get other sites to create high-quality, relevant links to yours is to create unique, relevant content that can naturally gain popularity in the Internet community. Creating good content pays off: Links are usually editorial votes given by choice, and the more useful content you have, the greater the chances someone else will find that content valuable to their readers and link to it.
This, of course, isn’t wrong per se. However, even most link-worthy content needs a little nudge.
Let’s start with some basic examples.Write an Article
In this example, the firm simply wrote a post discussing the NFL concussion story.
This link from the firm got picked up by a writer at the thenation.com. Let’s assume, for the sake of argument, that this firm did nothing else but publish this post and through pure search serendipity, the author found it and linked to it. This is the editorial link-vote search engines want to recognize.
But it’s quite possible the firm took some action to get this post in front of the writer. Maybe they:
However it went down, this is the type of link that helps.Contests
Let’s consider something a little more gimmicky that’s a bit easier to pull-off: a jingle contest.
Now it is unlikely jingle contests will get picked-up by wsj.com. But the same, or similar, concept can work on a hyper-local level.Write an Ebook
Another option is write a book or online guide.
If you’ve already tried this and it didn’t work, ask yourself why not. It’s possible the content you had wasn’t very good, or you just didn’t get it in front of anyone who was willing and able to link to it.Resources
Lawyers tend to love adding legal information resources on their sites. Most of them are lousy and are reincarnations of other firms’ pages. This is particularly problematic with practice area pages. But even basic legal definitions, glossaries, and case summaries can earn links as source material.Write About Currents Events
Being a regular source of credible information on current events can also earn valuable links.
Unfortunately, too many lawyers prefer to regurgitate local news stories without adding anything of substance. After all, that’s hard and takes time.Discounts
Here’s an example of something that might be considered a bit controversial: offering a discount.
A 10% discount on a personal injury contingency fee? This might be the first time I’ve ever seen this.Support What You Love
Another really easy and obvious method for link building is to sponsor organizations, events, and other causes that you care about. Here’s a sponsorship of Creative Commons.
creativecommons.org:Finally, Prioritize Relationships and Reputation
With all of this talk of search engines and links, it’s easy to lose perspective of what’s most important: reputation and relationships. But it’s not reputation or the web, it’s reputation and the web. In fact, as the lines between the web and the real world continue to blur, they actually work together.
If you take this approach to marketing your practice online, not only will you earn visibility in search engines, you’ll also avoid algorithm updates that harm your traffic.
Here are some additional resources for follow-up reading on link building:
Photo by: U.S. Navy photo by Mass Communication Specialist 2nd Class Andrew Meyers [Public domain]
Each Monday we present brief excerpts of recent posts from five of Canada’s award-winning legal blogs chosen at random* from seventy recent Clawbie winners. In this way we hope to promote their work, with their permission, to as wide an audience as possible.
A Third View on Legislating Two Languages at the SCC
In the last number of days, Professor Grammond and incoming AUT Law School lecturer (and my very generous blogging host) Léonid Sirota have posted thoughtful analyses of whether Parliament can legislate a requirement that judges of the Supreme Court understand French and English without the assistance of translation. Grammond argues yes; Sirota says no. The two authors differ in their readings of the Supreme Court Act Reference and, specifically, in their interpretation of what is captured by “composition of the Supreme Court of Canada” in section 41(d) of the Constitution Act, 1982. Both, in my view, are right in some respects, but wrong in others. …
Boosting collaboration and productivity should be a core element of how you manage your legal and support teams. Enable your legal practice management software to deal with multiple users and create flexible and clear workflows. Clio allows for collaboration and tracking productivity within your team with a multitude of different tools, functionalities, and interfaces. …
Excess liability coverage: Frill or necessity?
No one, no matter what area of law they practise, is immune to a claim. You also run the risk that the claims made against you in any one year could exceed the $1 million per claim/$2 million in the aggregate policy limits of the primary LAWPRO insurance program. Excess Liability Insurance provides you with that additional layer of protection should defence and indemnity payments exceed the limits provided by the primary LAWPRO program. …
National Self-Represented Litigants Project Blog
Ontario Family Legal Services Review Offers Opportunity for Legal Profession to Show the Public it is Listening – and Cares
“Review announces sweeping changes in para-professional services for family law – help is on the way for families who cannot afford lawyers”. “Review backs status quo – says paralegals “not ready” to deliver family legal services, leaving family litigants with limited or no choices”. Submissions are now closed for the Ontario Family Legal Services Review, chaired by Madam Justice Bonkalo. Which headline will we be reading when the Review issues its September report? …
Thoughtful Legal Management
The Future is Now
William Gibson coined the phrase: “The Future is already here – is just not very evenly distributed.” Well a very telling sign that the future is arrived is the appearance of a robot inside a law firm. Fortune Magazine, in an article entitled: “Meet Ross, the World’s First Robot Lawyer” states that: “Global law firm Baker & Hostetler, one of the nation’s largest, recently announced that it has hired a robot lawyer created by ROSS Intelligence, Futurism reports. Ross will be employed in the law firm’s bankruptcy practice which currently employs close to 50 lawyers.” …
*Randomness here is created by Random.org and its list randomizing function.
ARAG is a legal insurance provider that works to increase access to justice by offering affordable legal services delivered by seasoned attorneys. Attorneys who enroll in ARAG’s network get access to a client base and resources to help them grow their practice.Details
Consumers of moderate and modest means often believe that they will not be able to access legal services because they will be too costly. Those consumers also often hold the belief that the services of an attorney will make no difference in resolving their legal problems. Legal insurance helps these consumers by taking the risk and guesswork out of getting legal help. ARAG’s insurance policies and certificates meet stringent federal and state laws, rules and regulations to protect consumers and attorneys.
Legal insurance works similar to health insurance. Plan members pay a monthly fee to ARAG and are then able to access ARAG’s 11,000-provider attorney network. ARAG generally handles receipt of the consumer fees and negotiates a fixed rate with attorneys in its network and then pays those attorneys directly. Clients are relieved of the anxieties of finding a reputable provider, negotiating fees, and paying legal bills. ARAG also provides plan members with guidebooks, informational materials, and an interactive DIY legal document assembly tool created by attorneys.
While many individuals have trouble accessing legal services, many attorneys, particularly solo and small practitioners, have a difficult time finding clients. Attorneys have an opportunity to enroll in ARAG’s attorney network, which gives them access to a base of clients with no referral fee or joining fee. ARAG also works to create an attorney network that reflects the needs and demographics of its members, including providing multilingual attorneys and interpreting services. ARAG provides resources and training on best practices and technology trends to help attorneys keep pace with client expectations.How to Join the ARAG Network
ARAG contracts with each attorney individually. Find full details of the rights and obligations of an ARAG Network Attorney and how to begin the enrollment process here.
ARAG: Increasing Access to Justice and Attorney Referrals was originally published on Lawyerist.com.
The first provincial application under this exemption was Re HS in February 2016, where the motion judge described her role in such an application,
 … The role of this Court is limited to applying or authorizing an existing constitutional exemption and determining whether a particular person qualifies for that exemption…
The process for doing so would be to apply the criteria enunciated by the Court in the 2015 Carter decision at para 127 to a a competent adult person as someone:
The Court continued to clarify that “irremediable” does not necessarily require a patient to receive treatment against their consent.
Since that time, there have been about 20 successful Carter applications across Canada since February, none of which were contested by the Crown. The first to be opposed was in April, in Canada (Attorney General) v E.F., where the motions judge still granted the application on May 5, 2016.
The basis of the Crown’s objections were:
The Applicant’s condition was described as a “severe conversion disorder”, with involuntary muscle spasms causing her severe and constant pain and migraines. She was effectively blind from spasms in her eyelids, and was unable to eat for up to two days at a time due to her digestive problems. The effect of the condition was a significant impact on her quality of life, including muscle wasting and the need for a wheelchair. The competence of the patient to make this decision was not in dispute.
The Alberta Court of Appeal heard an expedited appeal, which was released this week, where they addressed two issues:
The Court of Appeal referred to legislative backgrounder by the Canadian government, which on page 29 addresses whether the constitutional declaration made in Carter would apply outside of those with terminal illnesses.
Paragraph 27 of Carter appears to confer a broad right when read in isolation, and the definition of “grievous and irremediable medical condition” includes those that are not terminal or life threatening. The focus of the declaration was on the suffering of the person based on their s. 7 Charter rights.
The backgrounder states that a broader reading of the decision actually confers a more limited right, based on the factual circumstances of the parties in that case. The Court makes reference to the applicant and others who are “like her,” using her medical situation as a comparator in several locations in the decision. The Court also analyzed the evidence of assessment within the context of end of life decision making, including palliative care and life sustaining medical equipment.
The biggest argument for a more narrow interpretation of the Carter declaration is judicial deference to Parliament to craft a constitutionally compliant mechanism, in particular because there are competing values of great importance.
The Court of Appeal upheld the motions judge decision on all of these points, and rejected these submissions. They referred to the first paragraph of the Carter decision:
 It is a crime in Canada to assist another person in ending her own life. As a result, people who are grievously and irremediably ill cannot seek a physician’s assistance in dying and may be condemned to a life of severe and intolerable suffering. A person facing this prospect has two options: she can take her own life prematurely, often by violent or dangerous means, or she can suffer until she dies from natural causes. The choice is cruel.
The Court of Appeal referred to the important interest at stake to hold against reading in or inferring additional limitations beyond what the Supreme Court of Canada stated at para 127 in Carter. They then examined whether the Carter declaration excluded medical conditions which had its origins in a psychiatric condition.
Although the Carter declaration in para 127 does not explicitly exclude those with mental illnesses, the Crown referred to para 111 of the decision to suggest that they were excluded by the Court:
 Professor Montero’s affidavit reviews a number of recent, controversial, and high-profile cases of assistance in dying in Belgium which would not fall within the parameters suggested in these reasons, such as euthanasia for minors or persons with psychiatric disorders or minor medical conditions. Professor Montero suggests that these cases demonstrate that a slippery slope is at work in Belgium. In his view, “[o]nce euthanasia is allowed, it becomes very difficult to maintain a strict interpretation of the statutory conditions.”
The Court of Appeal rejected this argument, finding this passage as part of a larger analysis employed by the Court in reviewing practices in other countries. They upheld the motions judge decision that persons with a psychiatric disorders could also avail themselves of this right, if they are both competent and clearly consent. The constitutional exemption was granted as a result to this applicant.
The concern around vulnerable populations will continue once the new legislation is in place. Bill C-14 is largely silent on minors and those with psychiatric illnesses. Of greater scrutiny is the the applicability to non-terminally ill applicants.
The proposed section 241.2 (1)(c) of Bill C-14 establishes the eligibility for medical assistance in dying only to those who have a “grievous and irremediable medical condition.” Unlike the Carter decision itself, the Bill then defines what this means in the proposed section 241.2(2) as follows:
(2) A person has a grievous and irremediable medical
condition only if they meet all of the following criteria:
(a) they have a serious and incurable illness, disease or disability;
(b) they are in an advanced state of irreversible decline in capability;
(c) that illness, disease or disability or that state of decline causes them enduring physical or psychological suffering that is intolerable to them and that cannot be relieved under conditions that they consider acceptable; and
(d) their natural death has become reasonably foreseeable, taking into account all of their medical circumstances, without a prognosis necessarily having been made as to the specific length of time that they have remaining.
Jennifer Gibson, Director of the University of Toronto Joint Centre for Bioethics, has stated that this “reasonably foreseeable” term,
…departs materially from Carter, which did not require a patient to be dying or approaching “natural death” in order to be eligible for medical assistance in dying. In clinical practice, there is often considerable uncertainty about prognosis, which renders ‘reasonable foreseeability’ another unhelpfully vague concept.
The legislative background provides this explanation for the qualifier:
The criterion of reasonable foreseeability of death is intended to require a temporal but flexible connection between the person’s overall medical circumstances and their anticipated death. As some medical conditions may cause individuals to irreversibly decline and suffer for a long period of time before dying, the proposed eligibility criteria would not impose any specific requirements in terms of prognosis or proximity to death (e.g., a six month prognosis as the U.S. states’ medical assistance in dying laws require).
The medical condition that is causing the intolerable suffering would not need to be the cause of the reasonably foreseeable death. In other words, eligibility would not be limited to those who are dying from a fatal disease. Eligibility would be assessed on a case-by-case basis, with flexibility to reflect the uniqueness of each person’s circumstances, but with limits that require a natural death to be foreseeable in a period of time that is not too remote. It should be noted that people with a mental illness or physical disability would not be excluded from the regime, but would only be able to access medical assistance in dying if they met all of the eligibility criteria.
Most individuals experiencing the type of suffering contemplated in Carter and addressed here in E.F. would invariably have some form of serious medical condition. Because the “foreseeable death” is understood here as entirely distinct from the diagnosis, it’s not entirely clear why it is even included here as a requirement.
If Carter is about cruelty, then perhaps it is even more cruel to deny this relief for individuals who do not have a terminal illness and may suffer for an even longer, and unknowable quantity of time. Bill C-14, should it become law, will invariably require further judicial interpretation, perhaps attempting to quantify the amount of suffering experience, and the reasonableness of any delay before a foreseeable death.
This would appear to be the exact type of judicially created “complex regulatory regimes” that the Supreme Court of Canada was trying to avoid at para 125 of Carter. As health services, including physician assisted dying, will invariably be implemented provincially, we can only hope that a more detailed legislative framework is imposed on top of the exemptions to the Criminal Code proposed by the Federal government.
One Sunday each month OnPoint Legal Research provides Slaw with an extended summary of, and counsel’s commentary on, an important case from the British Columbia, Alberta, or Ontario court of appeal.
Schrenk v. British Columbia (Human Rights Tribunal), 2016 BCCA 146
AREAS OF LAW: Human rights; Employment; Derogatory statements; “Condition of employment”
~Insults inflicted upon employees in the workplace, even in the course of their employment, only fall under s. 13 of the Human Rights Code if the wrongdoer has sufficient employer-given power to impose the unwelcome conduct as a condition of employment, or if the conduct is tolerated by the employer.~
BACKGROUND: The Appellant, Edward Schrenk, was a site foreman employed by a contracting company on a road improvement project in Delta in 2013-2014. The Respondent Mohammadreza Sheikhzadeh-Mashgoul (“Mr. Mashgoul”) was a civil engineer and was the site representative of a consulting engineering firm serving as contract administrator for the project. In that capacity, Mr. Mashgoul supervised work done by the contracting firm. While on site the Appellant made derogatory statements to Mr. Mashgoul and others about Mr. Mashgoul’s place of birth, religion, and sexual orientation. Those statements were followed by derogatory emails sent directly to Mr. Mashgoul. The engineering firm for which Mr. Mashgoul worked complained to the contracting company, and the latter terminated the Appellant’s employment in March 2014. Mr. Mashgoul filed a complaint with the Respondent Human Rights Tribunal in April 2014 against the Appellant, the contracting company, and the City of Delta, which was the owner of the road project. He alleged that the Appellant engaged in unacceptable discriminatory and insulting behaviour, and that Delta and the contracting company permitted or tolerated this behaviour. The Appellant responded that the alleged remarks had no connection to Mr. Mashgoul’s employment, and in fact Mr. Mashgoul was in a position of power over the Appellant. The Appellant and the contracting company brought applications to dismiss the complaint under s. 27(1) of the Human Rights Code, which provides that a complaint may be dismissed if it is not within the jurisdiction of the Tribunal, the acts or omissions alleged do not contravene the Code, there is no reasonable prospect the complaint will succeed, or proceeding with the complaint would not further the purposes of the Code. The Tribunal dismissed the Appellant’s application to dismiss, finding that s. 13 of the Code protects complainants who are employees, liberally defined, who suffer a disadvantage in their employment in whole or in part because of their membership in a protected group. The Appellant then filed a petition for judicial review on the grounds that the Tribunal lacked jurisdiction to hear the complaint. The petition was dismissed. The chambers judge found that the issue was whether Mr. Mashgoul experienced discrimination regarding employment, and agreed with and adopted the reasons of the Tribunal. The chambers judge found that if the Appellant were correct in his interpretation of the Code, an employee could only complain of discrimination if the discrimination came from another employee of the same employer, or that employer.
APPELLATE DECISION: The appeal was allowed. The Appellant said the judge erred in misinterpreting the Code by concluding all that is required to found jurisdiction is that the complainant be negatively affected in the course of his employment by discrimination on prohibited grounds engaged in by any person. Not all discrimination in the workplace constitutes discrimination “regarding employment or any term or condition of employment”, as s. 13 stipulates. The question is whether the relationship between Mr. Mashgoul and the Appellant was of the sort regulated by the Code. The Appellant argued that it is not possible for a supervisor, who has control over and may direct the work of a subordinate co-worker, to complain to the Tribunal that the subordinate has discriminated against him or her regarding employment. In McCormick v. Fasken Martineau DuMoulin LLP, 2014 SCC 39, the Supreme Court of Canada clearly stated that control and dependency define the essence of the employment relationship for the purposes of human rights legislation. The exceptions to this rule are cases where discrimination can be established in the absence of an employment relationship because the subject of the complaint has the ability to influence or interfere with the employment relationship. The Court of Appeal rejected the Tribunal’s narrow conception of the issue on appeal, which was not simply whether the Tribunal had jurisdiction to address the conduct of one employee on a worksite that adversely affected an employee of another employer on that worksite. If the wrongdoer does not have such authority that he or she is able to impose offensive conduct on the complainant as a condition of employment, or if the wrongdoing is not tolerated by the employer, the Tribunal has no jurisdiction over the wrongdoer.
Counsel Comments provided by Edmund P. Caissie, Counsel for the Respondent, Mr. Schrenk
The interesting twist in this Human Rights case was that my client, Edward Schrenk, a construction foreman, was named as a Respondent as well as his employer, Clemas, despite the fact that neither of them had an employment relationship with the Complainant.
Most Human Rights complaints claiming employment discrimination are made by employees against their own employer, and while some of those cases name a fellow employee as a Respondent as well, even those cases are rare.
While there are reported cases of complaints filed, and later sustained by the Court, against parties who were not employers of the Complainant, I argued that all of those cases involved a third party who had influence over the Complainant’s employment, such as granting a licence to work in a profession.
In the Schrenk case, our Court of Appeal correctly, in my humble opinion, reasoned that there had to be an ‘employment like’ relationship or a power imbalance to be redressed, to found jurisdiction for the Human Rights Tribunal.
I argued that our legislature could not have intended that every racial slur or sexist remark or homophobic taunt would be the subject of a Human Rights hearing (in the Schrenk case scheduled for 5 days!), or they would have sanctioned neighbors for offensive language. It is a fair inference that the legislature did not want to open the floodgates to a deluge of such complaints, which would likely overwhelm the Tribunal, where societal evolution was already moving in the right direction to regulate such ‘antisocial’ behaviour.
Another interesting aspect of this case was that I had represented Mr. Schrenk earlier in a case in which he suffered a traumatic brain injury which, according to his neurologist, made it very difficult for him to control the kind of angry outbursts that got him into trouble in this case.
Despite Mr. Schrenk being a victim himself with a significant disability, and despite his own employer firing him for his outbursts against an inspector at his construction site, it was the Human Rights Tribunal itself that opposed our application for judicial review and which opposed our recent appeal to the BCCA. The Complainant did not participate in those appeals at all. (Mr. Schrenk’s employer settled directly with the Complainant by paying him to drop the complaint against Clemas but leave it running against Mr. Schrenk, after we lost the first level of appeal.)
If I had not decided to represent Mr. Schrenk pro bono through the appeal process, the scales of justice would be imbalanced indeed, against an individual who was himself deserving of sympathy and advocacy as a result of his own disability (without in any way condoning the inappropriate things he said to the Complainant).
Every week we present the summary of a decision handed down by a Québec court provided to us by SOQUIJ and considered to be of interest to our readers throughout Canada. SOQUIJ is attached to the Québec Department of Justice and collects, analyzes, enriches, and disseminates legal information in Québec.
PÉNAL (DROIT) : La peine de cinq ans imposée à l’accusé, qui s’est reconnu coupable de conduite avec les facultés affaiblies ayant causé la mort de l’une des victimes et des lésions corporelles à une autre, n’est pas manifestement non indiquée et c’est à bon droit que la juge de première instance a distingué son cas de l’affaire Paré c. R. (C.A., 2011-11-07), 2011 QCCA 2047, SOQUIJ AZ-50802777, 2011EXP-3534, J.E. 2011-1966.
Intitulé : Méthot c. R., 2016 QCCA 736
Juridiction : Cour d’appel (C.A.), Montréal, 500-10-006039-158
Décision de : Juges Nicholas Kasirer, Dominique Bélanger et Mark Schrager
Date : 22 avril 2016
PÉNAL (DROIT) — détermination de la peine — infractions routières — conduite d’un véhicule avec facultés affaiblies — conduite avec facultés affaiblies causant la mort — conduite avec facultés affaiblies causant des lésions corporelles — plaidoyer de culpabilité — antécédents judiciaires — fourchette des peines — norme d’intervention — peine manifestement non indiquée — détention — interdiction de conduire — point de départ.
Appel d’une peine. Accueilli en partie.
L’appelant s’est reconnu coupable de conduite avec les facultés affaiblies causant la mort (art. 255 (3) du Code criminel (C.Cr.)) et de conduite avec les facultés affaiblies causant des lésions corporelles (art. 255 (2) C.Cr.). Son véhicule a percuté celui de l’une des victimes, Leduc, qui, à son tour, est entré en collision avec un autre véhicule circulant en sens inverse et au volant duquel se trouvait la seconde victime, Royer. Leduc a été gravement blessé et Royer, tué sur le coup. La fille de quatre ans de l’appelant, qui était assise à ses côtés, a subi de légères blessures. Selon ce qu’a rapporté la juge de première instance, l’appelant avait consommé 9 ou 10 bières ce jour-là et son alcoolémie était de 206 milligrammes par 100 millilitres de sang. Il a été condamné à des peines concurrentes de cinq et trois ans d’emprisonnement, assorties d’une interdiction de conduire d’une durée de cinq ans débutant le jour du prononcé du jugement. Il soutient que la juge de première instance a erré en ne donnant pas suffisamment d’importance au principe d’individualisation et en imposant l’interdiction de conduire à compter du prononcé du jugement.
La juge a déclaré que la peine d’incarcération qu’elle imposait se situait dans la fourchette du milieu (soit de 3 à 6 ans) des peines imposées au Québec pour de telles infractions commises dans des circonstances similaires. C’est à bon droit qu’elle a distingué le cas de l’appelant de Paré c. R. (C.A., 2011-11-07), 2011 QCCA 2047, SOQUIJ AZ-50802777, 2011EXP-3534, J.E. 2011-1966, où une peine de cinq ans pour conduite les avec facultés affaiblies a été réduite à trois ans. De plus, la juge a bien pris en considération tous les facteurs atténuants de telle sorte que l’on ne peut déceler une erreur de principe ou un manque de raisonnabilité dans le jugement. En outre, alors qu’il affirme que sa fille n’a pas été blessée et remet en question la conclusion de la juge à cet égard, l’appelant ne fournit aucune preuve du contraire. En ce qui a trait au fait de ne plus pouvoir conduire dans le contexte de son travail et de ne plus pouvoir exercer ses droits de garde, ces éléments sont insuffisants pour conclure que la peine prononcée est manifestement non indiquée. Quant aux circonstances aggravantes, il est vrai que la juge de première instance a retenu à tort l’absence de remords de l’appelant. Néanmoins, cette erreur est contrebalancée par le fait qu’elle a aussi retenu, à titre de circonstance atténuante, les remords exposés par la soeur de ce dernier. Cela n’a pas eu de conséquence sur le quantum global de la peine et ne saurait justifier l’intervention de la Cour. Quant à l’interdiction de conduire, à la lumière de R. c. Lacasse(C.S. Can., 2015-12-17), 2015 CSC 64, SOQUIJ AZ-51239148, 2016EXP-59, J.E. 2016-20, la juge a commis une erreur de droit en imposant une interdiction de conduire «à compter de ce jour». Une telle ordonnance doit débuter au terme de la période d’incarcération et non à la date du prononcé de la peine. Les parties suggèrent une interdiction de conduire de deux ans, ce qui est raisonnable dans les circonstances, compte tenu notamment des efforts de réhabilitation de l’appelant relativement à son alcoolisme et le faible risque de récidive noté au rapport prédécisionnel.
Le texte intégral de la décision est disponible ici
From Blue to Indigo to … « Citing Legally http://citeblog.access-to-law.com/?p=617
I remember in law school, my professor started our course in immigration law with a sound question, “apart from the CRA, which is the most profitable department in the Federal Government?” Apparently, the answer at the time was the department of immigration. The right of permanent residence fee (RPLF) was a whopping $975 per person, the initial fee for a humanitarian application was $1,100 and there were additional fees. Refugees coming to Canada were particularly burdened by these fees. Public pressure and litigation led to a review of onerous fees and many were reduced by 50%. It was clear then, and it was clear under the Conservative government, that immigration policies were guided by economics.
In 2014, the Conservative government published a Glossary of Terms that included the four (4) categories of immigrants to Canada:
Immigration categories are shown for the three main groups of permanent residents—family class, economic immigrants, and refugees—as well as for “other” immigrants who do not qualify in any of these categories.
Further, they defined “economic immigrants”:
Permanent residents selected for their skills and ability to contribute to Canada’s economy. The economic immigrant category includes skilled workers, business immigrants, provincial or territorial nominees, live-in caregivers and Canadian Experience Class.
From the Conservative perspective, refugees were clearly not part of growing the Canadian economy and they were not recognized for they economic contributions. Since then, study after study is proving the Conservatives were clearly wrong. It is becoming clear that, over the long-term, refugees are a significant economic benefit to the recipient countries.
Refugees Pay More Taxes than Investor Class Applicants
In 2015, an intrepid journalist in Vancouver reviewed taxes paid by the “millionaire class” applicants who came to Canada under the Investor Class program. At various times, these individuals were required to provide $800,000 or $1,200,000 to the Canadian government under the program; in turn, they were provided a special program and Officers dedicated to helping their families settle in Canada. Based on the investigation, it turns out that the program resulted in scant benefit to the Canadian economy:
They may have been millionaires, but they were earning very little money here in Canada. Immigrant investors declared about $18,000 to $25,000 of income annually, he said.
“Why? Either because they were living off existing wealth, or they weren’t declaring their [global] incomes,” Young said. […]
“If an immigrant investor already had a very successful business back in China, why would they shut that down and try to start afresh in Canada?” he said.
He argues the program amounted to a cash-for-passport deal, without benefiting the Canadian economy.
In contrast, the investigation led to the anti-intuitive conclusion (aren’t those the best kind?) that refugees provide significant economic benefits to Canada:
By contrast, refugees to Canada start out earning about $17,500 a year, and by the end of their first 10 years, 66 per cent of them are declaring an earned income.
Their annual earnings eventually reach a level closer to economic immigrants to Canada, in the $30,000 range, he said. […]
“Refugees that are actually employed, their incomes were on a par with economic immigrants, very much contradicting this notion that refugees are coming and acting as a drain for taxpayers and a drain on the Canadian economy,” [Sharry Aiken, who teaches refugee law at Queen’s University] said.
European Investigation Confirms Economic Benefit of Refugees
Recently, the Tent Foundation issued an investigative report on this subject, “Refugees Work: A Humanitarian Investment That Yields Economic Dividends”. As reported by the Guardian:
Refugees will create more jobs, increase demand for services and products, and fill gaps in European workforces – while their wages will help fund dwindling pensions pots and public finances, says Philippe Legrain, a former economic adviser to the president of the European commission.
Simultaneously refugees are unlikely to decrease wages or raise unemployment for native workers, Legrain says, citing past studies by labour economists.
Most significantly, Legrain calculates that while the absorption of so many refugees will increase public debt by almost €69bn (£54bn) between 2015 and 2020, during the same period refugees will help GDP grow by €126.6bn – a ratio of almost two to one.
“Investing one euro in welcoming refugees can yield nearly two euros in economic benefits within five years,” [the report] concludes.
This european report further confirms the benefits of bringing refugees to Canada. It has always been clear that accepting these applications is the right thing to do on the humanitarian front; however, it is now clear that these individuals should be accepted based on economic reasons.
IRCC Minister is on the Right Page
At our national CBA Immigration conference in Vancouver, Minister McCallum gave a frank key-note speech. He noted the different classes of immigrants above and, typical to his manner, he candidly stated that it makes to sense to distinguish refugee applications from economic class applications. Everyone who comes to this country, if they are given proper support, education and resources, will strive to better their community and this country.
Lawyers, like many office workers, are susceptible to chronic back pain. We sit and stare at computer screens for long hours, and our careers are plagued with stress-inducing situations. Those are the primary causes of chronic back pain.
Because I am a six-foot-three man with bad posture, I have had terrible back pain for years. But it came to a head about a month ago when I bent down while holding my one-year-old and severely strained my lower back. About a week later, after I was able to walk like a human being again, I decided to do something about it. Here are the steps I am taking to overcome my back pain.Recognize You Have a Problem
This part is, unfortunately, easy to identify if you’ve already been reduced to a quivering blob of pulled muscles.
According to the National Institutes of Health, about 80% of people will experience lower back pain. The risk factors for back pain include:
I fit this profile pretty much perfectly. Most lawyers probably do, too. But even if you may not fit this profile exactly, don’t ignore potential back issues before they start.Make Time for Exercise
While it may seem like a no-brainer, at least one study shows that walking can help ease back pain. Other studies show that regularly walking can improve your mood. So get out of your office at least once a day to walk for thirty minutes or more.
Of course, a large part your ability to exercise during the day depends on the location of your office. If you work in a big office building surrounded by parking decks and a six-lane highway, that is not conducive to taking a lunchtime stroll. But given the health and mental benefits, you cannot afford not to incorporate walking and exercise in your daily routine one way or another.See a Professional
Your goal should be staying healthy so that going to a doctor or chiropractor is the last resort. That being said, you can benefit from chiropractic adjustments, especially if you have ongoing spinal issues such as mild scoliosis. If you do have severe back pain, seek a professional opinion. You do not want your back pain to develop into something worse, like a herniated disc.
You should also consider trying yoga or other types of core-strengthening regimens. While you can always buy a DVD or look up exercises online, consider going to a class, especially if you are not an experienced yogi. The most important thing is to make whatever exercise you choose to do a routine — even if it is just a couple times per week.To Sit or Stand?
The buzz surrounding standing desks began a few years ago. We now know that sitting all day is bad for us. It increases the chances of dying in the next three years. It increases the risk of heart disease and type-2 diabetes. It also, unsurprisingly, increases your risk of back and neck pain even if you have textbook good posture.
One of the biggest downsides to standing desks is the cost, which can range from a few hundred to a few thousand dollars. If you are not willing to make that kind of investment, try to make your chair and computer setup more ergonomic. Following simple steps such as making sure you don’t have to turn your head to look at your monitor, or adding lumbar support pillow to give your back more curve while you work can help. Finally, try to pay attention to your posture while working, instead of just slouching over the keyboard.Maintaining Your Healthy Habits
Making these habits routine may be a struggle. I am the quintessential weekend warrior when it comes to working out. After about a week or two of trying to get back in shape, life inevitably gets in the way of exercise.
If you struggle with stress and back pain like I do, there are several ways to manage it. Meditation can help relieve stress and improve your mood. And just getting out from behind your desk and taking a walk can reduce stress and help your back pain.
But keep in mind that every person is different, and so you will find different things that work for you. What’s important is that you try to create a routine that is comfortable and doable. A routine will help you maintain a healthy lifestyle and prevent a back injury before one happens.
LexisNexis released three substantive updates to Firm Manager, its flagship practice management software: integration with the Intuit QuickBooks Online accounting software; bulk uploading of folders and files; and integration with most web-based and desktop email applications. These enhancements come just months after Firm Manager earned “Best Practice Management Software Platform” at the 2015 Legaltech News Innovation Awards, as well as first place in National Law Journal’s “Best of 2015” products in the category of “Docketing & Calendaring Software.”Details
Firm Manager’s updates make it clear that LexisNexis is actively listening to its customers’ requests. For instance, approximately 50% of its current customer base stated that email integration was a critical requirement. Among many of its features, the integration with email applications—including Gmail and Outlook 365—enables customers to automatically save emails and their attachments to individual case files.
Additionally, the QuickBooks Online integration proves to be extremely useful to small firms. According to a LexisNexis survey, more than 60% of small firms spend an average of 8 hours on billing each month. With this integration, billing becomes more streamlined, which decreases reliance on additional staff while increasing total number of billable hours in any given year. Firm Manager customers can also send other financial data to QuickBooks, including payments, time entries and credits.
Finally, the new data import tool makes uploading documents to the software a breeze. Customers can upload as many documents as they choose—there are no storage limitations for Firm Manager customers.How to Get It
Paid subscriptions to Firm Manager cost $44.99 per month for one user. You may add additional users at any point at a $29.99 charge per user, per month. After signing up, you will receive initial training and ongoing support to help you make the most your experience.
Firm Manager: Substantive Updates Deliver Increased Efficiencies to Small Firms was originally published on Lawyerist.com.
Today, Abacus Data Systems announced that Amicus Attorney (previously developed by Gavel & Gown Software) “will become an integrated part of the Abacus family.”
However, the companies will continue to operate independently:
Both companies will continue to offer all products and services with no changes made to either company’s staff or management team.
So why does it matter to lawyers? Stepping stones.
There isn’t a lot of growth in legacy software, like AbacusLaw and Amicus. Both are desktop/on-premise practice management software. Newer, cloud-based options are steadily taking away market share. Here’s a snippet from the 2015 ABA TECHREPORT:
In small firms nearly 50% have case/practice management software available to them …. The most common software in this category is Outlook at 49%, followed by Casemap (11%), Clio (10%), Time Matters (9%), and PC Law (7%).
(Emphasis mine.) I’m sure AbacusLaw and Amicus are on the chart, and probably not much further down since they’ve got well-established, loyal user bases. But still, further down and probably sinking because legacy software isn’t picking up many new users.
But Abacus also has Abacus Private Cloud, which is a cloud-based “desktop-as-a-service.” Basically, you can move your entire law-firm network to a private, secure cloud server—whatever software you use. (Abacus says it has APC customers who use Clio for practice management.) So if you are already using Abacus—and now Amicus—moving to the cloud is a piece of cake.
And now Abacus has Amicus Cloud, a full-featured, cloud-based practice management suite. According to some of the members of our forum, Amicus Cloud needs some work, but it is well-suited for firms that want practice management software without many compromises.
So on the one hand Abacus just increased its “legacy” software user base by adding Amicus users. But many of those firms need to move to the cloud, and Abacus Private Cloud and Amicus Cloud make it much easier to keep those firms as customers—and bring on new ones.
If you are already an Abacus or Amicus customer, now you have new options for moving to the cloud, whether or not you are interested in working in a browser.
Abacus Acquires Amicus, Expanding its Cloud Offerings was originally published on Lawyerist.com.
Internet Archive: Free Interdisciplinary Resource | C-M Law Library Blog http://cmlawlibraryblog.classcaster.net/2016/05/19/internet-archive-free-interdisciplinary-resource/