According to the Energy & Policy Institute, Ontario is a world-wide hot-spot for litigation opposing wind energy. Opponents of wind power often have a heartfelt and deeply held belief that wind farms threaten their health and property values. But they have lost all Ontario legal cases based on concerns about human health, now including a constitutional challenge.
Wind farms have been actively expanding in Ontario since the Ontario Green Energy Act, 2009, took away municipal power to block wind farm development, and a Feed in Tariff for selling the resulting power provided a solid economic case. Such farms require a Renewable Energy Approval (“REA”), from the Ministry of Environment and Climate Change under the Environmental Protection Act (“EPA”). Each REA can be appealed to the Environmental Review Tribunal (ERT), but only on limited grounds including serious harm to human health.
Numerous anti-wind appeals to the ERT were rejected, because they did not meet this test. Anti-wind litigants then appealed to the courts, arguing that the statutory test was itself unconstitutional and contrary to their right to security of the person, guaranteed by the Canadian Charter of Rights and Freedoms. The Ontario Divisional Court has now definitively rejected that argument.
The anti-wind constitutional appeals
In Dixon v. Director, Ministry of the Environment, 2014 ONSC 7404, the Divisional Court heard appeals from three decisions of the ERT, each of which upheld an REA for an Ontario wind farm in Huron and Bruce counties:
a 33 MW, 15 wind turbine farm operated by St. Columban Energy LP (“St. Columban Wind Project”); the 270 MW, 140 turbine wind farm owned by K2 Wind Ontario Limited Partnership (“K2 Wind Project”); and the 180 MW, 92 turbine wind farm of SP Armow WindOntario LP (“Armow Wind Project”).
Under the EPA s. 145.2.1(2), the ERT hears appeals from REAs, but can turn them down only if “engaging in the renewable energy project in accordance with the renewable energy approval will cause (a) serious harm to human health…” The onus of proving such harm rests on those opposed to the REA. EPA s. 142.2.1(5) requires the Tribunal to confirm the Director’s decision if it “determines that engaging in the renewable energy project in accordance with the renewable energy approval will not cause [serious harm to human health]”.
No scientific evidence for fears about wind turbines
Study after study around the world has shown that, contrary to what many fear, wind farms at the Ontario minimum setbacks do not cause serious harm to human health, even though some people find them stressful and annoying.
“73….There is no sufficient evidence that the biological effects observed at the level below 40 dBLnight,outside are harmful to health…”
A recent study by Health Canada confirmed that some people find wind turbines stressful and annoying, but reached no conclusions as to why they do. In particular, they reported no evidence that the wind turbines cause the stress, as opposed to people’s fears about turbines.
The opponents’ evidence at these hearings revolved around the fears and beliefs that many wind farm neighbours have about adverse health effects from wind farms. The appellants argued that it was a breach of their Charter rights to the security of the person to expose them to the possibility of these harms:
“66….They contend that unlike the certainty of scientific knowledge which surrounds the effects of the discharge of a contaminant such as mercury, when dealing with the effect of noise and vibrations from commercial wind farms we are dealing with “known unknowns”. The uncertainty of the state of scientific knowledge about the effects on human health of commercial wind farms, according to the Appellants, materially informs the analysis of the Charter adequacy of the review tests found in EPA ss. 142.1(3) and 145.2.1(2). Which leads, then, to the question of whether the statutory test adopted by the Legislature materially departed from the consensus scientific view about the impact of commercial wind turbines on human health.”
But, the Court said, the opponents did not provide a scientific foundation for those fears:
“75…the Tribunals did not have before them expert evidence which seriously called into question the principle underpinning the EPA’s renewable energy project regulatory regime – i.e. that wind turbines which are set back 550m from a dwelling house and which do not generate noise levels in excess of 40 dBA at the lowest specified wind speed do not cause serious harm to human health based upon the current state of scientific knowledge.”
The Court agreed that the Tribunal had acted lawfully in rejecting the testimony of some wind farm neighbours, who testified that the wind farms are causing them adverse health effects, because of the lack of scientific support for these witnesses’ subjective belief in the cause of their symptoms.
Accordingly, the special EPA rules for approval of renewable energy projects, including wind farms, do not contravene the Charter:
“ …the statutory review test adopted by the Ontario Legislature in EPA ss. 142.1(3) and 145.2.1(2) in respect of the impact on human health of contaminants, such as sound and vibration, discharged from commercial wind farms does not, on its face, depart from the jurisprudential test for establishing a state violation of a person’s security of person under Charter s. 7.
 We also conclude that that statutory test did not depart from the consensus scientific view on the impact of commercial wind turbines on human health.”
The Court also rejected other procedural complaints raised by the wind opponents, who complained that they had been unfairly denied adjournments or other procedural requests during the Environment Review Tribunal hearings. Accordingly, all three appeals were dismissed and the renewable energy approvals given to the three wind farms were upheld.
I must preemptively refer you to John Gregory’s post from last year when it comes to canvassing the laws, and lack thereof, around how third party services (like Google, Facebook, PayPal, etc.) are obliged to act upon the death of an account holder. The whole legal terrain is fascinating, and consists of a stewing heap of conflicting rationales, policies, privacy legislation and common laws around the rights of heirs, deceased people, states and private corporations. It’s all heading in a better direction, probably, with the advent of uniform legislation like FADA, but for some time it has been quite a mess.
The question many have posed but no one can singularly answer is “what happens to the digital assets of a deceased person?” Does the data pass as a downloadable archive to the estate? Does a representative gain access in the place of the deceased owner or account holder? Is the information wiped? Or shall it sit on a server indefinitely with no one permitted to gain access?
Well, it really depends on the service. And that seems like mean comfort to many.“For many, Facebook has become a highly accessible (even mobile) vehicle for grieving and, ultimately, catharsis.”
Increasingly, especially with social media accounts that maintain a passive presence regardless of when a post was made, we see around us the digital ghosts of departed friends and family. Two years ago there was an interesting article discussing stories of “Facebook After Death” featuring anecdotes around a phenomenon which is only increasing—inexorable as death is (and now too our habits using social media). The article says, “As of 2012, 30 million people who maintained Facebook accounts have died, according to a report by The Huffington Post. Some studies approximate that nearly 3 million users have died in 2012 alone; 580,000 in the U.S.”
Someone even did a trendy infographic on the macabre topic:
The digital graveyard is only more crowded, with some idle genius calculating that the dead will outnumber the living on Facebook by 2065, if Facebook stops growing. Google established an Inactive Account Manager in mid-2013, but it has taken some time for Facebook to wade in and offer expanded controls beyond mere memorialization (which was introduced in 2009).
The news this past week, however, is that Facebook now lets you choose who will control your Facebook account through a proxy called a “Legacy Contact“. It’s not activated in Canada yet, but one may expect that could change.
Previously Facebook converted user account pages to “memorial” pages if someone close to the deceased reported the death to Facebook, and doing this removes many capabilities from the account. No curator was left with any ability to actually use the account. It remained a one-way exchange.
“The feature, called legacy contact, appears in Facebook’s security settings menu. There, you can select a specific Facebook friend who will be able to control certain aspects of your page, like your profile and header image, after you die. Alternatively, users can opt to have their account deleted after they pass away.”
Samantha Collier has also posted a personal story in connection with this news.
The Lifehacker article I linked to also has a link to an interesting post about creating a “in-case-of-emergency” kit for your data.
I’m still thinking about the “great disruption” that John O. McGinnis has been talking about and thought it might be useful to revisit the Disruptive Innovation in the Market for Legal Services conference held at the Harvard Law School in March of last year. Specifically the first panel of speakers where Clayton Christensen (author of the Innovator’s Dilemma and Harvard business administration professor) outlined what constitutes “disruptive innovation” in the market place.
Christensen defines disruptive innovation as something that transforms products or services “which are complicated and expensive into things that are so affordable and accessible so that a larger population of people have access to them.” This sounds very much like what’s been driving innovation in legal services; an attempt to reduce the complexity of practising of law so that a wider array of legal services will be available for those who need them.
His two examples both demonstrated how an innovative player in a particular industry creates a disruption by improving the performance of a specialized task and removing that task from a larger industry player. In the steel industry for example, specialized “mini mills” were able to produce rebar for concrete structures more efficiently than the traditional integrated steel mills could. At the same time the larger mills were happy to let this smaller and less profitable segment of their business go until eventually the mini mills had cornered the rebar market.
Once the mini mills had succeeded the price of rebar fell. It turns out that removing the “high cost competitor” from the equation negatively impacted on the mini mills ability to make a profit producing rebar. So they moved up the production line and developed an improved process for the next steel product produced by the integrated steel mills. The same cycle occurred until today the mini mill account for about 80% of all of the steel produced in the U.S.
Unfortunately the slides for the presentation were hidden from view but I think this is the diagram Christensen used to illustrate this process of a series of small disruptions taking hold in the market place:
Christensen made a couple of other interesting comment that resonated with me noting for example that this “trajectory of innovative development” aims to make good products better.
And this one about business evolution,
“… the business unit isn’t designed to evolve, they’re born and they die. But by creating mutant business models that can go after disruption the corporation can evolve even though the business units do not.”
Does this type of thing apply to the legal services industry? Does the legal services industry have a what Christensen calls a “technological core” which is the common element that enables this process of disruptive innovation?
Mike Rhodin (Senior VP, IBM Watson) was one of the respondents on this panel. He provided a wonderful history of the development of computers and computing. And he also talked about IBM’s evolution which has placed them as a leader in the “third era of computing”; the era that is ushering in “probabilistic and cognitive systems” that have the ability to learn.
Rhodin considers this third era of computing as the “next major disruption” representing a shift away from the “deterministic systems” that characterized the “monetization of the second era of computing.”
He describes our current information environment this way: 
“What’s happening … is the information is starting to become so vast that you can no longer rely on deterministic programming because you can’t process all the data. And because you can’t process all the data you have to start to rely on probabilistic techniques … statistics, analytics … You have to start developing systems that can understand things like human language … define the meaning of words, the meaning of information as it’s stored on disc. Not just rows and columns of numbers that are in traditional relational type databases or spread sheets, but actually in the written word, in the paragraphs of the law journals that you all read.”
So it’s starting to sound very much like this “third era of computing” may have a major influence on a language-based system like the law.
However … this is all well and good until you hear from a practising lawyer, someone like Sarah Reed (General Counsel, Charles River Ventures) who spoke after John Zuh (CEO of Legal Zoom).
Reed reminds us that the legal profession is “uniquely impervious to change.” She hasn’t been terribly impressed by some of the recent innovations in the legal industry.
She agrees that there have been some improved efficiencies through off-shoring of services or the use of e-discovery tools and she looks to some of the new products emerging pointing specifically to the area of search where there are some “big giants to be slain.” But the big players, the big law firms, have so far been good at adopting and absorbing these efficiencies without changing how things are done in the profession.
Reed identifies a few areas where she sees a need for improvement, for example, document drafting. She would like to see something like a “Stack Overflow for law” that could better standardize the process of putting legal documents together. And she would really like to see an end to the “soul destroying” effects of the billable hour. But she doesn’t see this happening any time soon because “big law firms are pretty good at nipping this in the bud.”
She sees the commodity side of legal services, where many new innovations are being introduced, as a “small part of the market.” Reed agrees there is a “huge untapped market” of people who need and would benefit from access to specialized legal services. And she points to evidence of this in the many legal clinics associated with law schools. But she also notes that the process of solving legal issues are often complex and can’t be easily handled with a simple form pulled down from the Internet.
This first panel at the Disruptive Innovation in the Market for Legal Services conference provided valuable context for the potentially disruptive innovations that continue to emerge in the legal profession.
It’s easy to think that, at least in your office, a major claim couldn’t possibly happen. But LAWPRO’s experience shows that errors, innocent oversights and gaffes in any type of practice can lead to big problems. And if you or your firm don’t have adequate insurance in place to address the claim, you could be facing personal exposure. The number of LAWPRO claims with values that exceed $100,000 has risen sharply in recent years and often the mistakes that lead to such claims result from very simple errors. Below are scenarios drawn from reported cases of alleged lawyer-negligence that show how easily large claims can develop.
Conveyancing: Condominium conundrum
You act for the purchaser of a residential condominium unit. Unbeknownst to your client, and despite the way the condo appears at the time of sale, not all parts of the unit being used as living space were actually transferred to your client. The condominium corporation tells your client that parts of her unit are common elements and she has to stop occupying those sections. She sues you for failing to identify this prior to the purchase. In fact, she winds up suing a number of people associated with this transaction. What could this cost you? In a case very similar to this, the lawyer and his firm were held to be responsible for $1.15 million.The legal costs were particularly substantial due to the number of parties involved and the complicated nature of the litigation.
Corporate/commercial: All you want to do is help the transaction close
You’re acting for someone purchasing a company. The vendor is unrepresented and won’t get his own lawyer. You offer to prepare all of the necessary legal documents for the transfer for both parties, but you don’t think it’s necessary to confirm in writing that you won’t be doing any additional filings for the other side, assuming it will be clear that person is not your client. The vendor doesn’t file the documentation that confirms he is no longer a director of the company. A subsequent sale of securities by the business results in him being held liable by Canada Revenue for taxes owed by the company, and he looks to you to pay it. By making the offer to do all the legal work involved in the transaction, the court held the lawyer in this case had a duty of care to the vendor that was breached. The judgment against the lawyer was just under $400,000.
Family law: When meeting client’s immediate needs conflicts with long-term goals
You act for the wife in a matrimonial dispute. The couple have done pretty well for themselves over the course of their marriage. You determine the husband could be a potential flight risk and originally intend to seek a preservation order. However, the wife could use financial help immediately,so instead you negotiate a deal to have the husband transfer assets to the wife which represent a lot, but not necessarily all, of the estimated equalization payment. When the husband suddenly disappears and the wife can’t recover what’s outstanding under the equalization payment, she sues you for $6,000,000. Thankfully, at trial the court found the lawyer’s actions did not cause the wife’s loss.
Franchises: When lawyers act as trustees
Your client acquires the exclusive right to set up franchise locations for a nation-wide restaurant chain in a specific province. You act for your client in setting up his business structure and the franchise documents. After he starts signing up investors for the franchises, it becomes apparent that there isn’t as much interest as he expected. Because it’s clear that not all units will be sold as originally set out in the documents, an amendment is made to the agreements that states your client will deliver the investors’ funds to your firm after closing and you will hold it in trust until all units are sold. Your client receives the money from the investors, but never remits it to you.
You later discover your client has used the funds to pay down his own business debts. Your client’s business fails and the parties who invested in the franchises can’t recover against him because he and his business are insolvent. The investors sue you. The court found that the lawyer breached his fiduciary duty to the non-client investors by not holding the funds in trust as originally held out. The investors, who each invested $50,000, were entitled to seek recovery against the lawyer for the full amount lost.
Intellectual property: Diarizing disaster
Your client holds several patents. You are to arrange payment of the necessary fees to a patent office, but through an oversight, payment is not made in time and the patents lapse. More than $1 million in damages was awarded in a case like this.
Mortgages: When trying to save money on an up-to-date search winds up costing a lot
You act for the mortgagee and mortgagor of a commercial property that’s under construction. You register the mortgage on the subject property, but you skip the search to save money and end up missing a critical fact. It ends up the mortgage is unenforceable because a recent amalgamation of the borrower’s companies means that the neighbouring properties, that used to be owned by separate but related companies, have now become joined as one. The mortgage was in contravention of section 50(3) of the Planning Act, R.S.O. 1990, c. P-13, since the borrower owned abutting lands. The borrower subsequently goes bankrupt and the mortgagee is found to be an unsecured creditor. At trial more than $2 million in damages was awarded against the lawyer.
Personal injury: Obtaining consent
You commence an action following a motor vehicle accident on behalf of the injured party and a compensation fund. You act on this file for six years. In consultation with both the injured person and the fund’s lawyers, who both seem to give their approval, a settlement is reached that you think is fair. Later, a senior officer in the fund declares the settlement to be inadequate and says you didn’t have proper consent to settle. At trial, the court finds that while you had in fact received consent, it wasn’t informed consent, because you failed to properly investigate the adequacy of the settlement. The court found the total loss to be more than $800,000. In 1990 the judgment, upheld on appeal and before adding costs, was for more than $344,000 against the defendant law firm.
Wills and estates: Sometimes you think you’ve got all the information you need
Your client gives you very clear instructions on how he wants his estate to be distributed, including a gift of certain lands to his brother. You ask the client to provide a legal description of the land, and you prepare the will in accordance with his instructions. After your client’s death you realize that the land was owned by your client’s company, not your client directly, and the company passed to a different beneficiary. The court found that there was both a duty of care to the intended beneficiary and, in the circumstances, the lawyer should have done a title search. The damages awarded against the lawyer were just under $500,000
Each Monday we present brief excerpts of recent posts from five of Canada’s award-winning legal blogs chosen at random* from sixty recent Clawbie winners. In this way we hope to promote their work, with their permission, to as wide an audience as possible.
Continuing legal education, professional development, formation continue (for those of us in Quebec)…Whatever we call it, we still have to do it. Finding relevant, interesting courses that fit into our schedules can be challenging. Enter Grapple. This easy-to-use online CLE site delivers content directly to you, when you want it, where you want it, on whatever device you want to use. It fits in perfectly with our philosophy at Gimbal: Grapple provides a high-quality product in way that saves you time, effort, and money….
In Defence of the CRTC’s Super Bowl Advertising Ruling
Last week’s CRTC decision to ban simultaneous substitution from the Super Bowl broadcast starting in 2017 has generated mounting criticism in recent days. While analysts initially noted that the lost revenue for Bell Media would not be material (a prediction borne out by a quarterly conference call where the decision was not raised by anyone), anger over the decision has continued to grow….
Access to Justice in Canada
Family Justice 3.0: A partially automated, settlement-oriented, lawyer-facilitated approach
The family justice system as we know it is in crisis. I think we’ve reached consensus on this point, as the truckload of recent reports from the national Action Committee on Access to Justice in Civil and Family Matters, the Canadian Bar Association and a handful of law societies seems to suggest. Whatever disputes are left likely centre on the extent to which the system needs to be rebuilt, how it ought to be rebuilt and how the rebuild will be funded….
More than one quarter of general counsel today are grappling with data breaches and it turns out Canadian in-house lawyers are more willing than their peers around the world to report them. According to a recent Association of Corporate Counsel 2015 survey of chief legal officers, one in four CLOs reported experiencing a data breach within their organizations over the past two years….
The international information professional organization SLA (Special Libraries Association) is organizing a free talk on February 25 entitled Social Media in the Library: Discovering Best Practice: “The ways social media tools are selected and used in the library change regularly in an evolving digital and social climate. …
*Randomness here is created by Random.org and its list randomizing function.
Some firms have taken the approach that they no longer wish to spend money on exposure. They believe that through healthy partnerships, they will be able to increase revenues with current clients and through the referral process continue to grow their business. Is that possible, quite likely but are there possible problems, absolutely.
By exposure I’m referring to everything from advertising to sponsorship to community events. There are so many different ways to spend money and countless people hoping you will spend it with them but there is only so much that can go around. How do you decide how much, for what and for whom?
The right mix will depend on the strategic plan for your firm. If extensive expansion is in the cards, than spending more will make sense. Being recognized at industry events through sponsorship and participation are great ways to “get known.” Advertising and other forms of promotion certainly have value even if the ROI is difficult to measure.
If slow and steady makes more sense than spending needs would decrease but you will still need to be visible where you clients are. Contacts change firms all the time which provides great opportunities for firms to expand client bases through these good contacts. However, there is the possibility of losing the client when a contact leaves if no one else knows who you are and what you do.
Exposure is critical in ensuring that other people know who you are and how you can help them. The level of exposure is really up to you.
Here are excerpts from the post:
[…] Here at In Progress, we hope to contribute to collective efforts by hacking Supreme Court doctrine. The idea is to open up the law around prisons and make connections to help generate anti-mass incarceration constitutional arguments. What’s more, the goal is to crowdsource the connection-making process. To do this, I am experimenting with doctrinal map designs to facilitate non-specialist learning of complex doctrinal systems.
Last time, I charted out a series of Eighth Amendment doctrinal networks and found them large and unwieldy. It’s not realistic to expect anybody to read over 100 Supreme Court cases while mining for anti-mass-incarceration arguments. So this time, I want to narrow the focus. Below find the 2-degree citation network linking the Court’s 2011 prisoner overcrowding decision Brown v. Plata to 1958′s Trop v. Dulles, a seminal pronouncement about the Eighth Amendment’s meaning as a guarantee of human dignity in light of evolving standards of decency. […]
Note the new design feature of the map above: its interactivity. Click on the map and then click on any of the opinions. You’ll find yourself looking an HTML deck that (a) has a very quick summary of the case holding; and (b) contains links to open resources about the case provided by CourtListener, Cornell Legal Information Institute, Oyez, and the Supreme Court Database. Some of the decks also contain other potentially useful information — check out the Brown v. Plata deck as an example (make sure you tap your right arrow key!).
As the above map demonstrates, legal hacking is a collective activity. If the map helps at all, it is only because it leverages free resources provided by great organizations doing great work. The HTML Deck platform is an especially cool free resource created by Dave Zvenyach, the 2014 DC Legal Hacker of the Year. His example should inspire us all to tinker and build and seek creative solutions. […]
For the map and more details, please see the complete post.
Here is the introduction to the post:
Professor Chris Marsden explains what is behind the Openlaws.eu project and explores the current landscape of access to law in the UK.
The law is a slow-moving beast, as are most lawyers (members of this august Society obviously excepted). Yet with more non-professionals appearing before the courts, in an ever more litigious society, but with fewer resources to engage legal professionals, learning something of the law is more important than ever. In a Knowledge Society, citizens can now access information about their surgeon, their school, their university professor, their neighbours – but not the law, with few exceptions. This is untenable; governments worldwide, together with legal professionals and scholars, have in the past two decades made plans to move towards open access to law via the Internet. This article explores how far the English law has moved, and what remains to be done. It concludes by explaining the pan-European openlaws.eu project, which is releasing its beta version in a Salzburg code camp on 20-21 March (the hills may well be alive with the sound of legal hacking). […]
Today is National Flag Day, and the 50th anniversary of the official adoption of the current Canadian flag.
National Flag Day was first instituted in 1996 by Jean Chrétien. On Flag Day in 2007, Peggy Nash attempted unsuccessfully to make it a federal statutory holiday.
Although dealing with the flag itself, and not the celebration of the flag, Parliament passed the National Flag of Canada Act in 2012. The initial version of the Bill included criminal penalties for mistreating the flag, until opposition in the House resulted in amendments stating that Canadians should simply being “encouraged” to display it.
The origins of the current Canadian flag start abroad, and not in England or France as you might expect. In an Arab Spring of an earlier time, July 23, 1952, the monarchy of Egypt was overthrown.
King Farouk, the deposed monarch, seems to himself predicted these turn of events at the end of the Second World War,
The whole world is in revolt. Soon there will be only five Kings left–the King of England, the King of Spades, The King of Clubs, the King of Hearts, and the King of Diamonds.
One of the precipitating factors for the revolution was the presence of the British in the Suez. In 1951, the Wafd Party in Parliament, who had transitioned Egypt to a constitutional monarchy, cancelled the Anglo-Egyptian treaty of 1936. This treaty was initially signed by King Farouk while in power, and allowed British troops to remain in Egypt to protect their interests in the Suez Canal.
The British and the Egyptians were initially able to resolve their differences diplomatically. They negotiated a staged withdrawal of the British from the Suez, and the British would pull out of the Sudan.
This changed after a failed assassination of Egypt’s new leader, Gamal Abdel Nasser, in October 1954. The opposition to Nasser was based, in part, in his inability to counter British authority. Soon after, Nasser decided to nationalize the Suez Canal on July 36, 1956.
Nasser continued to operate the Canal effectively and promised to pay remuneration to the owners of the Canal Company. Because the Canal was operated under the Constantinople Convention of 1888, there was no recourse the British or French had under international law as long as the Canal continued to operate.
The nationalization of the canal led to the invasion of Egypt by not only Britain, but by France and Israel as well. When the canal first opened in 1869, it had been partly financed by the French. Israel’s interest was in the Straits of Tiran, which had been closed by Egypt since 1951 in contravention of United Nations Security Council Resolution 95.
The Suez Crisis was a time of high tensions, but of cooperation as well. Both America and the Soviets opposed the invasion, and worked jointly to encourage the invading forces to withdraw. The Soviets even threatened to bomb the British with nuclear weapons.
The British, in turn, seriously contemplated invading Kuwait and Qatar to take their oil if the Americans imposed sanctions against them. Former colonial powers often have a hard time shaking off bad habits.
But it was a Canadian named Lester B. Pearson, Secretary of External Affairs of Canada at the time, who created the first United Nations Emergency Force, which eventually intervened in the affair. Canada was able to play a pivotal role particularly because of its neutral relationships with all the parties involved. There was little Canadian involvement in the Suez, and Canada had actually refused British requests for military aid in the Middle East on two separate occasions prior to the crisis.
Person was awarded the Nobel Peace Prize in 1957 because of the Suez Crisis, would later become Prime Minister in 1963. He experiences with the Suez though flavoured his perception of Canadian identity. Canada was an enormous country with a tiny population. A country with a small army and low risk of being invaded, but of enormous influence and high repute around the world.
The Egyptians, though grateful for Canadian assistance, had prevented Canadians from flying the Canadian flag because it incorporated the British Union Jack. Canada could only be effective as a peacekeeping if it maintained an independent and neutral identity, including the symbolism used on our standard.
Support for a new flag was divided at home, in particular in English-speaking parts of the country that wanted to maintain strong symbolic ties to Britain. A special committee canvassed thousands of submissions, many of which maintained a strong religious components.
An internal memo on March 23, 1964 emphasized that the committee “must avoid the use of national or racial symbols that are of a divisive nature.” In particular, the Union Jack and the fleur-de-lis was to be avoided. Canada was more than just our English and French components, even in 1964.
The new flag ultimately received widespread support, but not uniformly. In protest, the conservative provincial governments of Ontario and Manitoba maintained the Red Ensign through its adoption into a new provincial flag, where it remains to this day.
“Symbols are a powerful thing. They have been known to bring out intense emotions in people,” said Senator Mahovlich on May 16, 2012. Emotions without any though though can be dangerous, and it’s important to reflect on what the flag means for us as Canadians.
Do we still maintain the political neutrality which would allow us to intervene and resolve the world’s greatest crises? Do we retain the respect and admiration of all countries, not just those which are powerful? Would the Canada of today be able to accomplish what we were capable of 50 years ago?
In many ways we have fallen short of those ideals set out by Pearson, the same Prime Minister who had the courage to create a new flag. For example, we have failed in recent years to secure a seat on the UN Security Council, a diplomatic snub which should shock Canadians, but help us realize how we have fallen short of our mark. In many other ways though, we have excelled beyond it.
Hon. Maurice Bourget, Speaker of the Senate, stated on February 15, 1965, when the flag was first raised on Parliament Hill,
The flag is the symbol of the nation’s unity, for it, beyond any doubt, represents all of the citizens of Canada without distinction of race, language, belief or opinion.
We have gone beyond mere symbolic unity, and enshrined equality under the law through our Charter. We have become a far more diverse country, with all of our races, languages, beliefs and opinions, and have actually become stronger because of it.
But we also have a long way to go still.
In an editorial in the Toronto Star, Premier Kathleen Wynne invoked the 50th anniversary of the Canadian flag to focus on some of Pearson’s other accomplishments, and to call for a pan-Canadian economic union. Pearson introduced a new minimum wage, a 40-hour work week, and 2 weeks vacation time. National medicare, the Canada and Quebec Pension Plans, and funding for post-secondary education soon followed. This social plan is what allowed Canada to become the country we are today.
Wynne called for an infrastructure investment from the Federal government to allow Canada to grow further. She also called for:
Cooperation, the type we eventually saw in putting our flag together, is what is needed to move Canada forward to even greater accomplishments.
At a Flag Day celebration today in Mississauga with Jean Chrétien and Justin Trudeau, hundreds of Canadians celebrated Flag Day. Trudeau stated,
Our maple leaf has become to mean so much to us. I just wish Mr. Pearson could see us now.
Projects worked on at the event are listed at: http://www.poihomicides.org/projects.html
The Website for the event is at: poihomicides.org/
The schedule for the event is available at: http://www.poihomicides.org/schedule.html
The data worked on at the event are available at: http://www.poihomicides.org/the-data.html
Here is a description of the event, from the event’s Website:
[…] Join us for the UCLA Information Studies Department’s Hackathon on Police Brutality Data in Los Angeles County. The event looks to engage those interested in community organizing, social justice, hacking, data mining with the unique and imperfect data sets regarding police brutality in LA County. This hackathon will examine how police brutality data is captured and disseminated among state and federal organizations and work to bring attention to the existing data, as well as the holes in existing data through data mining and visualization. […]
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) : Le juge de paix magistrat avait des motifs raisonnables de croire que le crime de possession de matériel de pornographie juvénile avait été commis et que des éléments de preuve se trouvaient dans l’ordinateur de l’appelant; c’est à bon droit que le recours en certiorari et en prohibition a été rejeté à l’encontre de la délivrance du mandat de perquisition.
Intitulé : Cohen c. Québec (Procureure générale), 2015 QCCA 122
Juridiction : Cour d’appel (C.A.), Montréal, 500-10-005286-123
Décision de : Juges François Doyon, Jacques J. Levesque et Jean-François Émond
Date : 22 janvier 2015
PÉNAL (DROIT) — procédure pénale — procédure fédérale — appel — recours extraordinaire — certiorari — prohibition — mandat de perquisition — ordinateur — validité — dénonciation — ex-conjointe — théorie du «bien en vue» («plain view») — possession de matériel de pornographie juvénile — élément de l’infraction — contrôle.
Appel d’un jugement ayant rejeté une requête en certiorari et en prohibition. Rejeté.
La Cour du Québec a délivré un mandat de perquisition qui autorisait la saisie et la fouille de l’ordinateur de l’appelant relativement à du matériel de pornographie juvénile. L’ordinateur a été saisi à la suite d’une plainte de son ex-conjointe, qui, en cherchant un numéro de téléphone, y a découvert une bande vidéo montrant trois jeunes filles mineures s’adonnant à des gestes sexuels. Choquée, elle a montré la bande à un ami, qui lui a conseillé de joindre la police. Par la suite, les deux policières appelées sur les lieux ont aussi visionné la bande vidéo. Un mandat de perquisition a été délivré afin que l’ordinateur soit fouillé pour y saisir «toute preuve, fichiers images, écrits et vidéos concernant la possession de pornographie juvénile».
1) L’infraction de possession de matériel de pornographie juvénile: À la différence de l’«accès» à du matériel de pornographie juvénile, la «possession» nécessite un fichier de matériel pornographique acquis sciemment par l’utilisateur et stocké sur son ordinateur, d’où les éléments de «contrôle» et de «possession». En l’espèce, l’acquisition du fichier et le contrôle sur celui-ci ne sont pas que de simples hypothèses. En outre, le fait que l’ex-conjointe ait à deux reprises aisément montré cette bande vidéo à trois personnes étaye l’argument de l’accès direct à la bande et du contrôle du fichier. Enfin, la suggestion de l’ami de communiquer avec la police supporte l’argument qu’il ne s’agissait pas d’un simple accès à un site Internet. Le juge avait des motifs raisonnables de croire que le crime de possession de matériel de pornographie juvénile avait été commis et que des éléments de preuve se trouvaient dans l’ordinateur. 2) Le juge aurait erré en concluant que la saisie initiale était justifiée par la doctrine du «bien en vue» («plain view»): L’appelant conteste la légalité de la conduite de son ex-conjointe et de son «consentement» à ce que les policières saisissent l’ordinateur. Or, celle-ci était chez elle, au domicile commun, et elle était autorisée à utiliser l’ordinateur. Par ailleurs, la légalité du visionnement par les policières n’est pas pertinente à l’égard de la compétence du juge de paix de délivrer le mandat. De toute façon, la dénonciation de l’ex-conjointe pouvait, à elle seule, justifier le mandat, et la question de la doctrine du «bien en vue» n’a pas d’incidence sur cette conclusion. 3) Le manque de détails du mandat et la nécessité de prévoir des conditions d’exécution: La précision selon laquelle les éléments recherchés concernent la possession de matériel de pornographie juvénile suffit pour limiter légalement la recherche.
Le texte intégral de la décision est disponible ici
On one Sunday each month we bring you a summary from Supreme Advocacy LLP of recent decisions at the Supreme Court of Canada. Supreme Advocacy LLP offers a weekly electronic newsletter, Supreme Advocacy Letter, 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) (Jan. 7 – Feb. 11, 2015 inclusive).
Competition: Mergers; “Prevention”; Efficiencies Defence; Balancing Test
Tervita Corp. v. Canada (Commissioner of Competition), 2015 SCC 3 (35314)
The “prevention” wording of s. 92 generally supports the analysis and conclusions of the Tribunal and the Fed. C.A. To get the benefit of the s. 96 “efficiencies” defence, the Tribunal must be satisfied that the merger or proposed merger has brought about or is likely to bring about gains in efficiency, and the gains in efficiency would not likely be attained if a s. 92 order were made. In addition, and despite the paramountcy given to economic efficiencies in s. 96, s. 96(3) prohibits the Tribunal from considering a “redistribution of income between two or more persons” as an offsetting efficiency gain. The limitation in s. 96(3) demonstrates Parliament did not intend for all efficiency gains, however arising, to be taken into account under s. 96.
Criminal Law/ Constitutional Law/Charter: Doctor-Assisted Dying
Carter v. Canada (Attorney General), 2015 SCC 5 (35591)
The prohibition on doctor-assisted dying is void where (1) a competent adult affected clearly consents to the termination of life; and (2) they have a grievous and irremediable medical condition (including illness, disease or disability) causing enduring intolerable suffering. Declaration of invalidity suspended 12 months.
Labour Law: Freedom of Association; Police Unions
Mounted Police Association of Ontario v. Canada (Attorney General), 2015 SCC 1 (34948)
The current RCMP labour relations regime denies a meaningful process of collective bargaining, and imposes a scheme that does not permit them to identify and advance their workplace concerns free from management’s influence. Excluding RCMP members from collective bargaining under para. (d) of the definition of “employee” in s. 2(1) of the Public Service Labour Relations Act infringes s. 2 (d) of the Charter, and is not justified under s. 1
Labour Law: (federal) Expenditure Restraint Act
Meredith v. Canada (Attorney General), 2015 SCC 2 (35424)
Despite deficiencies in the “Pay Council process”, it nonetheless constitutes associational activity that attracts Charter protection. The Expenditure Restraint Act does not amount to substantial interference with that activity despite its constitutional deficiencies.
Labour Law: Essential Services; Right to Strike; Freedom of Association
Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC 4 (35423)
The prohibition against strikes in the Public Service Essential Services Act substantially interferes with a meaningful process of collective bargaining and therefore violates s. 2 (d) of the Charter; infringement is not justified under s. 1; declaration of invalidity suspended one year; appeal with respect to Trade Union Amendment Act 2008 dismissed.
Leaves to Appeal Granted
Criminal Law: Bail; Pre-Sentence Custody
R. v. Safarzadeh-Markhali, 2014 ONCA 627 (36162)
Do ss. 719(3) and 719(3.1), as applied in this case, breach s. 7 of the Charter.
Criminal Law/National Security: Foreign Wiretaps
X (Re), 2014 FCA 249 (36107)
Sealing order in this case. Can CSIS and for Communications Security Establishment request foreign partner agencies for assistance in targeting (phone) communications of Canadians travelling abroad.
Criminal Law: Sexual Offences
R. v. W.,2014 ONCA 598(36112)
Publication ban in the context of (alleged) delay re (alleged) historic sexual abuse.
Municipal Law/Telecommunications in Québec: Expropriation
White v. City of Châteauguay (Ville de), 2014 QCCA 1121 (36027)
Is the (municipal) expropriation for a cellphone tower here valid.
Summaries of selected recent cases are provided each week to Slaw by Maritime 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 – Indians, Inuit and Métis – Injunctions – Courts – Education
P.S. v. Ontario et al. 2014 ONCA 900
Civil Rights – Persons of Unsound Mind – Practice
Summary: The applicant was convicted of sexual assault of a young boy and sentenced to 45 months in prison. On the day he was released from serving his sentence, he was involuntarily committed under the Mental Health Act (MHA) to a maximum security facility, where he had remained for 19 years with no apparent end to the committal in sight. The applicant was deaf and had limited access to interpreters throughout his …
Nunatsiavut Government v. Newfoundland and Labrador (Minister of Environment and Conservation) 2015 NLTD(G) 1
Indians, Inuit and Métis
Summary: The Province of Newfoundland and Labrador issued a Permit to Alter a Body of Water under the Water Resources Act respecting the Muskrat Falls hydroelectric development authorizing the construction of infrastructure. The Nunatsiavut Government, representing the Inuit of Labrador, expressed fears that their rights, primarily fishing and related consumption, would be harmed by mercury contamination in water downstream of the development. The Nunatsiavut Government applied to quash the permit, asserting a breach of the duty to …
Mounted Police Association of Ontario et al. v. Canada (Attorney General) 2015 SCC 1
Civil Rights – Courts
Summary: Two police associations, on behalf of their members, commenced a Charter application, challenging the validity of certain provisions governing the labour relations regime for members of the Royal Canadian Mounted Police (RCMP). The associations sought a declaration, inter alia, that s. 2(1)(d) of the Public Service Labour Relations Act (Can.) (PSLRA), and s. 96 of the Royal Canadian Mounted Police Regulations (Regulations), infringed s. 2(d) the Charter (i.e., the freedom of association). Section 2(1)(d) of the …
Meredith et al. v. Canada (Attorney General) 2015 SCC 2
Summary: The Treasury Board approved a modification to the Royal Canadian Mounted Police (RCMP) compensation package that it had approved in 2008. The modification cancelled the market adjustment for 2009, reduced the economic increase from 2% to 1.5% for 2009 and 2010, and cancelled the increase to the service pay. Thereafter, the Expenditure Restraint Act (ERA) was tabled giving effect to the Board’s decision. The applicants, representing members of the RCMP, applied for judicial review of the Board’s decision, …
Commission Scolaire Francophone et al. v. Northwest Territories (Attorney General) et al. 2015 NWTCA 1
Civil Rights – Education
Summary: The Northwest Territories Attorney General and Commissioner (the defendants) appealed a trial decision (a) ordering them to construct more minority language school facilities, and (b) declaring unconstitutional the Minister’s directive on admissions to the minority language school (see  Northwest Terr. Cases Uned. 44). This appeal engaged the unique question of the scope of government’s discretion regarding admission to the French first language school in Hay River, École Boréale, and the constitutionality of a Ministerial Directive …
Association des parents ayants droit de Yellowknife et al. v. Northwest Territories (Attorney General) et al. 2015 NWTCA 2
Civil Rights – Education – Evidence – Practice
Summary: Minority language education had been provided in Yellowknife, N.W.T., since 1989. A separate school (École Allain St-Cyr (EAS)) was built in 1999. In 2003, the Commission scolaire concluded that the facilities were inadequate and commenced discussions with the territorial government for increased space. In 2005, the plaintiffs brought an action, alleging that not only were the school facilities less than ideal, they fell below the minimum constitutional requirement for minority language educational …
Nothing says “clueless Luddite” like a pointless email disclaimer:
**This is a transmission from the law firm of Fredrikson & Byron, P.A. and may contain information which is privileged, confidential, and protected by the attorney-client or attorney work product privileges. If you are not the addressee, note that any disclosure, copying, distribution, or use of the contents of this message is prohibited. If you have received this transmission in error, please destroy it and notify us immediately at our telephone number (612) 492-7000. The name and biographical data provided above are for informational purposes only and are not intended to be a signature or other indication of an intent by the sender to authenticate the contents of this electronic message.**
First, it should be “information that is privileged,” not “information which is privileged.” Second, I’m pretty sure Fredrikson & Byron’s prohibition on disclosure is not enforceable. Third, what the heck does that sentence in bold even mean? (Feel free to pile on in the comments.)
If you know anyone at Fredrikson, maybe you should send them a link to this post on disclaimers.
As President of the Toronto Lawyers Association and a criminal defense lawyer practicing for over 22 years I was outraged to read not merely about the arrest of Laura Liscio, but about the manner in which the arrest was conducted. Any individual accused of a criminal offense is shrouded with the presumption of innocence. Miss Liscio, a practicing lawyer, was arrested in the court house and handcuffed while in robes. Further exasperating this public show was Miss Liscio being paraded through the halls of the court house, out the front doors and eventually off to the police station. Police have discretion to execute arrests in various ways, including asking an individual to attend at a specified time at a police station for arrest. I cannot imagine that Miss Liscio presented a security risk, flight risk or any risk to destruction of evidence, necessitating her to be arrested while in robes in the court house. This atrocious public display leads one to believe that it must have been an intentional act in order to humiliate a practicing member of the Bar, and to denigrate the profession as a whole. This is a matter of concern for lawyers across the province and across the county.
I would expect that there will be an inquiry into this arrest and some action taken to ensure that this type of conduct be avoided in the future. Without commenting on the merits of the case, should Miss Liscio be found innocent of these allegations the public display of her arrest cannot be undone.
President, Toronto Lawyers Association
This morning in Federation of Law Societies of Canada v. Canada (Attorney General), the Supreme Court of Canada upheld (with minor adjustments) the decision of the British Columbia Court of Appeal and Canada’s Proceeds of Crime (Money Laundering) and Terrorist Financing Act, was held defective since it did not adequately protect solicitor-client privilege in its search procedures. Parliament will have to significantly revise the scheme to add more safeguards.
A narrow set of professional duties was held to meet the principle of fundamental justice test, established in the Malmo-Levine test: R. v. Malmo-Levine; R. v. Caine:
For a rule or principle to constitute a principle of fundamental justice for the purposes of s. 7, it must be a legal principle about which there is significant societal consensus that it is fundamental to the way in which the legal system ought fairly to operate, and it must be identified with sufficient precision to yield a manageable standard against which to measure deprivations of life, liberty or security of the person.
Cromwell J declined to follow the Federation’s broad claim that the independence of the Bar was a principle of fundamental justice. But he did give constitutional status to narrower aspects of lawyers’ duties. The state could not impose obligations on lawyers which would undermine their duty of commitment to their clients:
The narrower understanding of the independence of the bar which relates it to the lawyer’s duty of commitment to the client’s cause is the aspect of the lawyer’s special duty to his or her client that is most relevant to this appeal.
 The duty of lawyers to avoid conflicting interests is at the heart of both the general legal framework defining the fiduciary duties of lawyers to their clients and of the ethical principles governing lawyers’ professional conduct. This duty aims to avoid two types of risks of harm to clients: the risk of misuse of confidential information and the risk of impairment of the lawyer’s representation of the client.
 The Court has recognized that aspects of these fiduciary and ethical duties have a constitutional dimension. I have already discussed at length one important example. The centrality to the administration of justice of preventing misuse of the client’s confidential information, reflected in solicitor-client privilege, led the Court to conclude that the privilege required constitutional protection in the context of law office searches and seizures: see Lavallee. Solicitor-client privilege is “essential to the effective operation of the legal system”: R. v. Gruenke. As Major J. put it in R. v. McClure, “The important relationship between a client and his or her lawyer stretches beyond the parties and is integral to the workings of the legal system itself” (emphasis added).
 The question now is whether another central dimension of the solicitor-client relationship — the lawyer’s duty of commitment to the client’s cause — also requires some measure of constitutional protection against government intrusion. In my view it does, for many of the same reasons that support constitutional protection for solicitor-client privilege. “The law is a complex web of interests, relationships and rules. The integrity of the administration of justice depends upon the unique role of the solicitor who provides legal advice to clients within this complex system”: McClure, at para. 2. These words, written in the context of solicitor-client privilege, are equally apt to describe the centrality to the administration of justice of the lawyer’s duty of commitment to the client’s cause. A client must be able to place “unrestricted and unbounded confidence” in his or her lawyer; that confidence which is at the core of the solicitor-client relationship is a part of the legal system itself, not merely ancillary to it: Smith v. Jones. The lawyer’s duty of commitment to the client’s cause, along with the protection of the client’s confidences, is central to the lawyer’s role in the administration of justice.
 We should, in my view, recognize as a principle of fundamental justice that the state cannot impose duties on lawyers that undermine their duty of commitment to their clients’ causes. Subject to justification being established, it follows that the state cannot deprive someone of life, liberty or security of the person otherwise than in accordance with this principle.
Cromwell J held that the money-laundering scheme compromised those duties:
The lawyer is required to create and preserve records which are not required for ethical and effective representation. The lawyer is required to do this in the knowledge that any solicitor-client confidences contained in these records are not adequately protected against searches and seizures authorized by the scheme.
But lawyers aren’t above the law:
Only when the state’s imposition of duties on lawyers undermines, in fact or in the perception of a reasonable person, the lawyer’s ability to comply with his or her duty of commitment to the client’s cause that there will be a departure from what is required by this principle of fundamental justice.
Interestingly, Chief Justice McLachlin and Moldaver J, in a short concurring judgment felt that the duty of commitment to a client’s cause wasn’t sufficiently clear or certain to ground a constitutional principle. They would have hinged the analysis on the special status of lawyer-client privilege.
(The issue is ) better resolved relying on the principle of fundamental justice which recognizes that the lawyer is required to keep the client’s confidences — solicitor-client privilege
It has been a notable year for Canadian courts in the area of the law of the legal profession, with the Cour d’Appel clarifying the reach of professional secrecy over notarial documents in Canada (Procureur général) c. Chambre des notaires du Québec, 2014 QCCA 552 (CanLII), – rejecting aggressive enforcement activities by the Canada Revenue Agency.
Another loss for the Feds.
For 13 years I practiced in a small community in northern Ontario, and one of the things you do in such a practice is a fair bit of estate work. One of things I quickly learned was that what appeared to be sweetness and light prior to the death of a family member is something entirely different after the death of that family member. With one sibling named executor, other siblings started to question and attack that particular sibling. Siblings that were beneficiaries started arguing with each other and in many occasions it was a very unhappy experience for everyone but in particular the executor. On more than one occasion, the beneficiaries indicated that they were going to sue the executor and on a number of occasions they did so.
On one occasion both the executor and the beneficiaries thought that I was a good subject for a lawsuit. Fortunately that went nowhere.
So when I first heard that there was executor’s insurance in the marketplace, my reaction was twofold: 1) it’s about time and 2) why hadn’t that happened earlier.
If I was still in practice, it struck me that it is something that I would want to raise with clients that were executors simply because it would provide comfort to the executor if there were any problems raised during the processing of the estate by beneficiaries or others. In addition it would mean that resources of the estate would not need to be used to defend any potential attacks.
It also struck me when I first heard of it that as a secondary benefit there would be less likelihood that lawyers would get sued (people are always looking for a deep pocket) which would be both a benefit to me as a practicing lawyer and the law society.
I know that some of my colleagues might suggest that this insurance is unnecessary, because the executor has me as their advisor or because I have never had a problem estate file. While all that may be true, the reality is problem estate files do exist and it may fall in your lap at some point in the future.
All this is compounded by the fact that there is $1 trillion of wealth out there that is going to be transferred between generations as the baby boomers, to put it bluntly, start dying off. Therefore it is clear that wills and estates work will increase and the risk of executors being sued will also increase.
In conversations I have had it appears that some lawyers are contacting executor insurance providers after litigation has been commenced against the executor and are quite upset when, for obvious reasons, the insurer is not prepared to provide insurance for a matter that is already in litigation. All the more reason to recommend executors insurance to your client.
Executors insurance from what I can see is a very similar to title insurance. It is good consumer protection but also protects lawyers. It has reduced the exposure to errors and omissions claims resulting from title problems. In a similar way, executors insurance can save the lawyers from vexatious lawsuits, reporting to the Law Society, and ultimately paying deductibles.
From the first time I heard about executors insurance, I said to myself that if I was still in practice I would be suggesting to any executor clients that the estate should purchase executors insurance. It seems to me as well that every law society should be encouraging lawyers that do estate work to raise the issue of executors insurance with their clients. Obviously it is important that it be done in a way that does not take a great deal of the lawyers’ time and that the process should be simple and straightforward.
I wanted to write about executors insurance because it struck me from the very first time I became aware of it that it was something that could be so helpful to clients and at the same time place the lawyer in a very positive light in considering all potential scenarios with the for the executor of an estate.
John Hoyles, Chief Executive Officer
Canadian Bar Association
Dear fellow lawyers: everyone hates us, and sadly, Google searches prove it. All you need to do is take a look at some autocomplete suggestions to realize that people really like to spend a lot of time Googling about it. And when they are not hating on us, they are searching for some deeply odd stuff. Witness these five searches.
(Yes, these are all real).