This is the note on rethinking our approach to family justice that I never thought I’d find myself writing, and as a result I need to begin with an explanation and an apology. In this short post, I describe what I see as lawyers’ duties to promote settlement, to respect informed compromise and to refrain from litigating family law disputes without good and sufficient reason. First, however, I’ll explain the circumstances that have provoked me to write.
I’m involved in a number of the present efforts to reform family justice. In one particular group, I have received a certain amount of kickback when I suggest that lawyers should play a larger role at the front end of family law disputes, in order to steer as many of those disputes away from court as possible. (Well, perhaps not kickback so much as dismay.) I would invariably respond that the early involvement of lawyers would result in the parties receiving an explanation of the law and the range of likely outcomes, thereby minimizing unreasonable positions and moving the parties toward settlement, as I have described elsewhere. Although this struck me as self-evident, it is not.
I recently had the pleasure of a lengthy road trip with a colleague that gave us lots of time to talk about access to justice, the nature of the reforms required and the barriers to those reforms. I was taken aback to learn that many of the members of her local bar preferred to take adversarial positions in family law disputes, were generally disinclined to pursue out of court resolution and often took a hard line when giving independent legal advice on mediated settlements that encouraged litigation. She suggested that there were two reasons why the family law bar took this approach, firstly because litigation is where the money is (which is true), and secondly because lawyers have a duty to zealously advocate for their client’s interests (which is sort of true). Another lawyer, a leader within his province’s bar, independently made this latter point later the same day. Upon reflection, I suspect that there are other factors that explain this sort of antagonistic approach, including tradition – “this is the way we’ve always done it” – and a sort of old school lawyerly machismo that views willingness to negotiate as a sign of weakness.
Needless to say, these perspectives on the attitudes of the local bar surprised me, and as a result I must apologize for my misapprehensions and whatever scant degree of priggish self-righteousness may perchance have escaped my lips. I should also thank Rob Harvie, QC for his thoughtful comments on an earlier draft of this note.
Let me now explain, and perhaps persuade, why lawyers have a duty to promote settlement and encourage their clients toward reasonable positions, and why Dante wasn’t too far off when he placed barratry in the eighth circle of hell.
Clients in Family Law Disputes
The clients of family law lawyers are uniquely vulnerable. They are not investment bankers dispassionately considering an IPO, nor are they career criminals facing another eight months for yet another B&E. They are people who often have had no prior involvement with the justice system, who are recovering from the breakdown of a important romantic relationship, who find themselves at odds over the very things that matter most in their lives, and who have little to no knowledge of the law that applies to their dispute or the courts that will process it. By and large, they are wracked by fear and anxiety about how their dispute will turn out, what will become of their children, how they’ll make ends meet and what their futures hold.
Although most clients’ fear and anxiety will dissipate over time, the emergence of a family law dispute is a time of profound uncertainty and unease. Legal advice given in such circumstances must be delivered with the deft and delicate touch that only experience provides. The right advice, in my view, can help the client reframe his or her experience of the dispute, rein in unreasonable expectations and improve the long-term chances of settlement. The wrong advice can needlessly damn a family to the conflict and enmity litigation engenders, and risks a permanently dysfunctional co-parenting relationship.
The advice provided by a skilled family law lawyer takes into account not just the text of the applicable legislation, but the case law interpreting that legislation, the applicable common law principles and the specific circumstances of the family as described by the client. Such advice is rarely if ever exact, in the sense of if-X-then-Y; in family law matters the best that can usually be offered is the lawyer’s opinion as to the range of potential values Y might hold. Although the ultimate value of Y is unknown, the lawyer’s advice should give the client an understanding of the basic law, some expectation of what lies ahead and a sense of the limitations of probability. It has been my experience that clients invariably appreciate this sort of advice at initial consultations, regardless of whether I’d given them good news or whether I’d agreed to take their case; even those clients for whom I was unable to find a silver lining left my office with a weight off their shoulders and a palpable sense of relief. All of those clients left my office better informed about the law and range of likely outcomes.
The conduct of a file after this initial consultation requires ongoing legal advice as to the client’s options, the range of outcomes and opportunities for negotiation, adjusted to account for improvements in the information available as a result of disclosure and discovery, and the evolving circumstances of the parties and their children. The client’s emotional state has a significant impact on the advice given about options for settlement; I have consistently found that the further my clients moved toward accepting both the end of their relationship and the parameters imposed by operation of law, the more opportunities for compromise and settlement arise. Contrary to the general rush to conclusion urged by studies such as the report of the national Action Committee’s family justice working group (PDF), files that would be impossible to settle at the beginning of the case often prove remarkably tractable once the passage of time has worn away the sharp edges of the parties’ emotions. Of course, trial always remains available in the event negotiations fail.
This, mind you, is just one way of doing things. An alternative approach might be to uncritically validate the client’s fears and anxieties and take the resulting instructions without assessing: the potential fallout from carrying them out; whether they are in the client’s interests or not; their odds of success; and, their probable long-term repercussions on the client’s relationships with the opposing party, the children and the children’s extended family.
Of course, these two approaches are merely points on a continuum; I do not mean to suggest that family law lawyers either do one or the other. Some lawyers place greater emphasis on negotiation and mediation; others are more inclined to start with litigation and work toward settlement as an end game. Some are more forceful in addressing unreasonable positions; others are less willing to challenge a client’s wishes and instructions. However, the difference between these approaches is not just a matter of personal style, there are professional obligations at play as well, and it is here that my concerns lie.
Lawyers’ Duties to their Clients
My colleagues are correct that lawyers have a duty to advocate for their client’s interests. That and integrity are probably the defining professional characteristics of being a lawyer. However, where I and my colleagues’ impression of the views of their local bar differ concerns the extent to which this duty is compatible with a settlement-oriented approach.
First, lawyers’ duty is not to provide zealous advocacy, that is a concept found in, and likely unintentionally borrowed from, the Model Rules of Professional Conduct of the American Bar Association, not those of the Canadian Bar Association. Our duty as advocates is much more restrained, an attitude that is especially appropriate for those practicing family law. Rule 2.1-3(e) of the Code of Professional Conduct for British Columbia, for example, says:
A lawyer should endeavour by all fair and honourable means to obtain for a client the benefit of any and every remedy and defence that is authorized by law.
Rule 4.01(1) of the Alberta Code of Conduct (PDF) says:
When acting as an advocate, a lawyer must represent the client resolutely and honourably within the limits of the law …
The rule in Chapter IX of the Canadian Bar Association’s Code of Conduct (PDF) says:
When acting as an advocate, the lawyer … must represent the client resolutely, honourably and within the limits of the law.
The job of an advocate, then, is to “endeavour” to “obtain” for the client the benefit of remedies “within the limits of the law,” and to do so in a “resolute” manner. This really doesn’t have quite the ring of “zealous” advocacy, does it?
The annotations to these rules are roughly similar between the codes. The Alberta commentary says, among other things, that:
In adversarial proceedings, the lawyer has a duty to the client to raise fearlessly every issue, advance every argument and ask every question, however distasteful, that the lawyer thinks will advance the client’s case … in a way that the promotes the parties’ right to a fair hearing in which justice can be done.
This too speaks of a restrained yet resolute advocacy. Lawyers must advance the issues and arguments necessary to “advance” their clients’ cases, not those necessary to “grind the opposing party into a crushing defeat.” Moreover, lawyers have a duty to present their cases in a manner that promotes the parties’ – plural! – right to a fair hearing.
Lawyers’ obligation as advocates to resolutely pursue the benefits authorized by law for their clients is set off, or supplemented, as I see it, by an obligation to pursue settlement. Rule 2.1-3(c) of the British Columbia code says:
Whenever the dispute will admit of fair settlement the client should be advised to avoid or to end the litigation.
Rule 2.02(7) of the Alberta code is a bit more forceful (emphasis added):
A lawyer must advise and encourage a client to compromise or settle a dispute whenever it is possible to do so on a reasonable basis and must discourage the client from commencing or continuing useless legal proceedings.
For an otherwise milquetoast code, those are some strong words. They are mirrored by the rule in Chapter II of the CBA code, which provides that “the lawyer must be both honest and candid when advising clients.” The sixth comment on the CBA rule says:
The lawyer should advise and encourage the client to compromise or settle a dispute whenever possible on a reasonable basis and should discourage the client from commencing or continuing useless legal proceedings.
These rules impose on lawyers a duty to “encourage” settlement “whenever possible,” providing always that the settlement be “fair” and “reasonable.”
Without a doubt, lawyers have an obligation to honourably and resolutely work toward such relief for their clients as is available under the law. This obligation, I suggest, is in no way incompatible with lawyers’ equal and ongoing obligation to pursue reasonable settlement and avoid litigation. It seems to me that the obligations are in fact complementary and that, at least in family law, the pursuit of reasonable settlement is resolute advocacy.
Lawyers’ Duties to Clients in Family Law Disputes
The litigation of family law disputes is rarely a happy and convivial affair. When a dispute heads to court, spouses who once trusted each other implicitly and gladly sacrificed their personal interests for the greater good of the whole suddenly and jarringly find themselves embroiled in an adversarial contest, and paying handsomely for the pleasure out of the equity in their home or their children’s patrimony. The negative consequences of litigation on families are legion, and are not limited to lawyers’ fees alone.
Surely, the avoidance of litigation, and the concomitant hazards it brings, is in the interests of most parties to a family law dispute and in the interests of their children as well. Encouraging our clients to consider alternatives to litigation is resolute advocacy and is in no way contradictory to our obligation to achieve a result within the limits of the law.
This is not to say that litigation is not necessary. It most certainly is. Litigation is required whenever orders are needed for the protection of persons or property, to prevent a child from being abducted or relocated in advance of trial, or to resolve a truly intractable dispute between truly intractable parties, including the mentally disordered. The commencement of proceedings can also be used to exploit the disclosure and discovery provisions of the rules of court, to chivvy an uncooperative individual into negotiations and to signal the commitment of a party to a particular position. That being said, litigation should generally be eschewed whenever possible, in my view, if its myriad harmful effects on the family are to be avoided.
Thankfully, there are alternatives to court for the resolution of family law disputes, many of which are quite popular within the bar. Lawyer-to-lawyer negotiations are often successful where counsel are prepared to take a pragmatic, solution-oriented approach to the points of difference between their clients and have the maturity to acknowledge the weaknesses of their clients’ positions. Mediation, with the right mediator with the right skill set, can resolve even the most unyielding differences – I’ve even successfully mediated mobility disputes, if you can believe it – particularly if the consequence of failure is trial. I am particularly fond of the holistic approach offered by collaborative processes that address the family’s emotional needs along with their legal issues, although I acknowledge that the cost of involving the required professionals can be prohibitive at times.
What duties, then, do family law lawyers owe to their clients? In my humble and likely mistaken opinion, they are these.
Now, I am well aware that litigation is where the money is. Nothing satisfies monthly billing expectations quite like a one-week trial; certainly none of the files I have resolved through negotiation, mediation or collaborative processes have ever paid as handsomely as the files that went to trial. However, the economics of a practice focusing on the pursuit of reasonable settlements are not as grim as I think most people expect, and in my experience a settlement-oriented practice yields pleasant collateral benefits from a quality of life perspective. Those adopting a settlement-oriented approach to their family law cases will need to maintain more active files to make ends meet (or satisfy the partners) than those persistently engaged in more adversarial approaches, however lawyers with such an approach deal with ex parte and short-leave applications less often, have equally fulfilling practices, are much more likely to go home before six o’clock, engage in fewer rancorous exchanges with opposing counsel, have smaller accounts receivable and are less likely to develop ulcers.
Curiously, in the end we do tend to resolve our files out of court, or in court with the assistance of a judge in a non-adversarial context. A national survey conducted by the Canadian Research Institute for Law and the Family in partnership with two prominent academics found that the bulk of lawyers’ family law files are resolved by lawyer-to-lawyer negotiations and that trial placed ahead of only arbitration and collaborative processes in the resolution of disputes:
The opinions of my colleagues suggest that these findings do not translate into how we handle initial consultations and independent legal advice on settlements, and this is where I think change is urgently required. The ultimate resolution of a file is one thing, but we have a positive duty to be settlement-minded right from the start.
The initial advice we give to our clients should be the sort of advice that identifies and discourages unreasonable expectations and dampens the flames of conflict. We should approach agreements with an attitude of respect for voluntary compromise, and accept that clients are motivated to settle by a host of intangible values in addition to their legal interests. We should discourage unnecessary litigation to the extent possible, even if it comes at the cost of a heavier personal file load. We should emphasize the need for global fairness to the family over unfair but optimal results for the individual, and address this consideration openly and frankly with our clients. We can be strong advocates for our clients while diligently pursuing our duty to encourage settlement as our codes of conduct require.
Earlier this week, the Supreme Court of Canada published its revised Policy for Access to Supreme Court of Canada Court Records. It took effect March 17, 2015 and replaces the policy dated February 9, 2009.
In addition to the hearing schedules, docket information, party information, case summaries, webcasts of appeal hearings and factums on appeal, the Court will begin to post memorandums of argument on applications for leave to appeal after they are granted.
The revised policy also introduces a Registered Access process for frequent users.This is for people who require regular access to multiple court records in one case file, or to single or multiple court records in more than one case file without having to complete a Request for Court Records each time.
In late January, the Federal Courts Rules were amended to permit the maintenance of court files in electronic form. The changes to the Rules, for the first time, removed the requirement that the official court docket for a proceeding be kept in “paper”. These changes open the door to improved electronic service and filing of court documents in the Federal Court.
Justice Brown’s comments regarding the Ontario Court, seem applicable, “Consign our paper-based document management system to the scrap heap of history and equip this Court with a modern, electronic document system.”
The changes to the Federal Court Rules have been several years in the making. A discussion paper released in 2011 by the Federal Court’s Sub-Committee on Technology proposed changes to make the Rules technologically neutral and facilitate the use of information technologies. Proposed rules were then published in the Canada Gazette in January of 2014, almost a year before the final rules came into force.
For example, the previous rule required that ‘books and records’ be maintained in Ottawa for each proceeding:
21. The Administrator shall keep, in the National Capital Region, all books and records necessary for recording the proceedings of the Court and shall enter therein all orders, directions, foreign judgments ordered to be registered, pleadings and other documents filed in proceedings.
The new rule does not refer to ‘books’ and does not require the records be physically maintained in the capital region.
21. The Administrator shall keep all records necessary for documenting the proceedings of the Court and enter in them all orders, directions, foreign judgments ordered to be registered, pleadings and other documents filed in a proceeding.
The amendments also contemplate the filing of electronic materials with the Court. The rules clarify that only a single electronic ‘copy’ is required, rather than the three or five [paper] copies previously required. After the amendments came into force, the Federal Court of Appeal issued a Notice to the Profession noting in part that:
As a result, the amendments to the Rules dealing with electronic filing and electronic records should be read as enabling, in the sense that they allow electronic filing and the use of electronic records by the parties as and when the Service acquires the capacity to give full effect to those amendments. That is not presently the case.
The Federal Court does currently permit electronic filing in many instances through its website and, for those proceedings which are case managed, accepts correspondence in some instances by email.
One amendment that addresses problems with electronic filing in a court that spans the entire country – time zones. The amended rules specify that for electronically filed documents, “the time of its receipt by the Registry is that time in the Eastern time zone.” The Regulatory Impact Analysis Statement mentions that objections had been raised to this change during consultation due to its particular impact on the Pacific time zone.
One of the more substantive changes is to the definition of ‘Document’ in Rule 222. This definition is part of the section on discovery obligations of parties. The amendments remove reference to “computer diskette” and instead refer to:
data that is recorded or stored on any medium in or by a computer system or other similar device and that can be read or perceived by a person or a computer system or other similar device”
All relevant ‘documents’ as that term is defined must be listed and described in the affidavit of documents.
Consent to electronic service of documents has been formalized in the Rules. Parties to proceedings in the Federal Court can serve and file a short statement consenting to be served electronically by email. Form 141A allows a party to list the email addresses to which documents may be served. Previously, the Court had a Practice Notice which established procedures for electronic service although in practice, many counsel dealt with electronic service and exchange of documents informally.
The Federal Court of Appeal’s practice direction states that the Courts Administrative Service “requires a significant infusion of funds in order to give full effect to the modifications contained in the amendments to the Rules. The Service is actively pursuing this additional funding.”
Hopefully soon, the Federal Court will be able to make more of its materials available electronically, including online and have less reliance on paper. This is particularly important to the Federal Court which has registries and court rooms across the country. Currently, the court administration must physically transport materials from office to office as needed by judges, parties and their counsel. The changes to the Rules are a welcome move towards a more electronic and modern court.
A new breed of for-profit coding schools has emerged in recent years, largely as a skills-focused alternative to traditional higher education. Now one of them has joined forces with a traditional university to build a master’s program.
The University of New Haven has teamed up with Galvanize, one of those upstart coding schools, to create GalvanizeU, a 12-month master’s program in data science based in San Francisco. The program will allow students to both take courses and work alongside industry players. The inaugural class will begin coursework next week.
Jim Deters, chief executive of Galvanize, said he wanted to build a new type of skills-based school. He knew a lot about the skills important to the tech world, but he didn’t know much about the world of education.
When the company started gSchool, an unaccredited program, in January 2013, Mr. Deters said he realized there were many challenges he hadn’t expected, and so he saw the benefit of forming a partnership with a traditional college.
“I was the guy looking at disrupting education completely from outside, and then we decided to do it from outside in and within by partnering with an interesting innovator like UNH,” Mr. Deters said.
The relationship between Galvanize and the Connecticut university was facilitated by University Ventures, a private-equity firm that had been working with New Haven to develop a program of this kind.
When University Ventures contacted the college about creating an engineering program, later reimagined as a data-science program, New Haven decided to go for it, recognizing the advantages of working with a private-equity firm, said the university’s president, Steven H. Kaplan.
“They function in a much more rational and effective manner than most colleges and universities, most not-for-profits, clearly because they’re profit-driven,” Mr. Kaplan said. “They pay attention to things such as efficiencies and rationalization of processes. They don’t let themselves get bogged down in bureaucracy.”
For New Haven to create this kind of program on its own, he added, it would take far more time and a reallocation of resources, especially for a program 3,000 miles away in San Francisco, near the businesses most likely to hire its graduates. He said that the project would help the university move into new areas of instruction and research quickly and then bring that experience back to its own campus.
New Haven brings legitimacy to the project, not just because of its accreditation and the fact that students who complete the program will receive a degree from New Haven, but also because it understands the inner workings of colleges and the responsibilities of faculty members, Mr. Kaplan said.
The people at Galvanize are “incredibly entrepreneurial and innovative,” he said, but they’re not academics, at least not in the traditional sense.
The program is the first of its kind, Mr. Deters said, in that it was “built from the ground up.” Organizers didn’t assemble a data-science degree by grabbing a few computer-science courses from here and mathematics courses from there.
Mr. Deters said the partnership was trying to take all the things higher education does right, removing the bureaucracy, and creating an environment and classroom aligned with the industry. Rather than having education and industry as completely separate entities, the program is bringing them together — what he called its “secret sauce.”
Galvanize and the university jointly developed the curriculum, which was then subjected to review by various university offices as well as both the State of Connecticut and the State of California. Galvanize instructors will do the teaching, at the company’s office, but the university was involved in hiring them, so they are recognized as UNH professors. The university also has oversight of students admitted to the program, said Ronald S. Harichandran, dean of New Haven’s college of engineering.
The program is oriented toward industry, including internships at local companies and intensive capstone projects, so being in the heart of San Francisco was crucial, Mr. Harichandran said. It wouldn’t have been easy for the university to set up shop in San Francisco and establish relationships with Silicon Valley companies. “It’s like a restaurant,” he said. “Location, location, location is everything.”
The guests’ hobbies so far include skydiving, mountain climbing, oil painting, magic, astronomy, opera singing, winemaking, boxing, chess, ballet, and more. (No winter campers, yet.)
Clever podcast with some interesting lawyers.
Each Thursday we present a significant excerpt, usually from a recently published book or journal article. In every case the proper permissions have been obtained. If you are a publisher who would like to participate in this feature, please let us know via the site’s contact form.
Sarah Burningham | University of Saskatchewan College of Law
(2015) 1 Canadian Journal of Comparative and Contemporary Law 317
Excerpt: Part III
[Footnotes omitted. They can be found in the original via the link above]
III. Legal Mechanisms to Challenge Health Care Coverage Decisions
A. The Charter
In the years immediately following the adoption of the Charter, some scholars suggested that it should be interpreted so as to provide protection for socio-economic rights, including the right to health care. Such an interpretation would provide fertile ground to argue that the right to access particular therapies fell within its ambit. However, Charter claims seeking health care entitlements have been mostly unsuccessful to date.
Patients with rare diseases seeking to use the Charter to challenge health care coverage decisions have two potential avenues of argument. First, patients could argue that their section 7 “right[s] to life, liberty and security of the person” are unjustifiably infringed by legislation that limits access to medical services. Second, patients could argue that the government failed to live up to obligations created by either section 7 or section 15 of the Charter.
Using the first avenue, patients may argue that legislation which removes or narrows medical options available to them contravene section 7 of the Charter. This avenue contemplates legislation which expressly prohibits patients from obtaining certain treatments or medical services, such as the kind of legislation that was at issue in Chaoulli. In that case, a Quebec statute provided that patients could not obtain private health insurance for medical services available within the public health care system. A patient challenged the constitutionality of this legislation, arguing that the lengthy “delays resulting from waiting lists” in the public health system combined with removal of the option to obtain private insurance negatively impacted his health and thus infringed his section 7 rights to life and security of the person. Three of the justices of the Supreme Court of Canada agreed, finding further that the legislation was arbitrary and thus inconsistent with the principles of fundamental justice. One justice preferred to decide the case under the Quebec Charter of Human Rights and Freedoms and the three remaining justices upheld the provision under the Canadian Charter.
Patients with rare diseases will find Chaoulli of limited help, however, as their access to health care is impeded not by legislation that prohibits them from accessing certain services, but rather, by government inaction (e.g. not paying for necessary medical treatments or procedures). What is needed, from the perspective of patients with rare diseases, is a hook on which government obligation to fund treatment can be hung. The approach discussed below provides a more promising means to fashion such a hook.
In theory, governmental obligation may be created by either sections 7 or 15 of the Charter. In practice, however, courts have shied away from recognizing positive obligations under section 7 of the Charter. The Supreme Court of Canada has stated that “[t]he Charter does not confer a freestanding constitutional right to health care.” And, lower courts have similarly dismissed suggestions that the government is in violation of section 7 when it declines to cover the costs of a particular medical treatment.
Patients with rare diseases must then look to section 15 and the right to equality to establish any funding obligation. A section 15 analysis requires a court to ask: “(1) Does the law create a distinction based on an enumerated or analogous ground? (2) Does the distinction create a disadvantage by perpetuating prejudice or stereotyping?” As the Supreme Court has observed, “[t]he focus of the inquiry is on the actual impact of the impugned law, taking full account of social, political, economic and historical factors concerning the group” and “involves looking at the circumstances of members of the group and the negative impact of the law on them.”
Accordingly, a patient with a rare disease must establish that the refusal to pay for a particular medical service draws a distinction [that] create[s] a disadvantage.” The patient may point to the fact that the health care scheme created by federal and provincial legislation draws a distinction between insured and non-insured services, leading to differential treatment between patients whose medical care is covered and those whose medical care is not. The patient may further point to the fact that some of those in the latter group will include patients with rare diseases. It is not obvious on the face of the scheme that the distinction is drawn on the basis of an enumerated or analogous ground – in this case, rare disease or disability – as both those with rare diseases and those without rare diseases are denied funding if the service in issue is not covered by the public system.
However, the law protects individuals from discrimination that, while not obvious on the face of the statute in question, is apparent following deeper and more probing scrutiny of the statute. If, on closer examination, it becomes apparent that patients with rare diseases are disproportionately denied funding for medical services or disproportionately affected by denial of funding, then differential treatment is established. Such a conclusion may be reached by evidence illustrating how insufficient financing negatively impacts patients with rare diseases; patients may demonstrate that, without government funding, they cannot afford the treatment in issue, and, without that treatment, their pain and suffering is increased or their life expectancy shortened. On this point, if the scientific evidence is inconclusive on the matter of a therapy’s effectiveness, patients seeking these experimental treatments may be unable to tender compelling evidence that their physical pain is increased by the denial of coverage for that treatment. However, that is not the end of the matter, as these patients could underscore the emotional burden of being denied hope that experimental treatments offer. To establish that the law “create[s] a disadvantage by perpetuating prejudice or stereotyping,” patients with rare diseases may point to the economic disadvantage they shoulder by paying out-of-pocket for medical expenses. This burden increases the economic hardship on patients who may already be off work as a result of illness. Being denied access to treatment may also add to the sense of exclusion and stigmatization already experienced by patients with rare diseases.
If an infringement is established, the burden shifts to the government to prove that the breach can be justified under section 1 of the Charter. An infringement is defensible if the legislative objective is “pressing and substantial,” the chosen course is rationally connected to that objective, the injury to the right is small, and the infringement is proportionate to the benefit and effect of the impugned law. In the context of a section 15 challenge by a claimant with a rare disease, several factors will be relevant. At the section 1 stage, courts tend to show deference to government decisions that require balancing multiple and varied interests or allotting limited resources. Health care coverage decisions appear to be the sort of decision that will generally attract deference. Because courts require that the government establish an evidential basis for its impugned action, a government will not simply be able to assert that its action achieves health care objectives and meets the other section 1 requirements without furnishing evidence. However, as von Tigerstrom points out, it may be challenging for courts to evaluate the evidence put forward by the government: Are purported financial worries genuine or is cost used to shield a discriminatory decision? And when does cost justify a decision not to cover a certain treatment? Must it be too expensive for the public system to absorb, or is it enough that the government has decided to fund procedure x over treatment y, both being equally medically effective?
Two Supreme Court of Canada cases will be relevant to any claim brought under section 15. In Eldridge v British Columbia, the Court found that the failure of hospitals to provide sign-language services for hearing-impaired patients was a violation of section 15. In finding that the government’s decision constituted discrimination, Justice La Forest for the Court noted:
In order to receive the same quality of care, deaf persons must bear the burden of paying for the means to communicate with their health care providers, despite the fact that the system is intended to make ability to pay irrelevant … Once it is accepted that effective communication is an indispensable component of the delivery of medical services, it becomes much more difficult to assert that the failure to ensure that deaf persons communicate effectively with their health care providers is not discriminatory.
One could conceivably argue that patients with rare diseases who do not obtain necessary treatment are not receiving “the same quality of care” as those patients with or without rare diseases who have access to publicly funded treatments.
However, patients with rare diseases may find it difficult to establish an infringement of section 15 given the Supreme Court’s decision in Auton v British Columbia. In that case, families unsuccessfully argued that the government’s failure to provide therapy for their autistic children was discriminatory under section 15. In reaching its decision, the Court reviewed the provincial set-up, which distinguished between “core services” and “non-core services,” the first being those made available by physicians and hospitals, and the second being those performed by other health care professionals and insured only if so stipulated in the regulations. The Court held that the therapy, being a “non-core service” provided by professionals not designated under the regulations, was not “a benefit provided by law” as there was no legislative entitlement to it. The Court observed that “the legislative scheme does not promise that any Canadian will receive funding for all medically required treatment,” apparently even if the treatment is “essential to the health and medical treatment of an individual.” The Court also dismissed the suggestion that “the scheme itself [was] discriminatory,” finding that it was designed and intended to cover only some, not all, medical services. Thus, “exclusion of particular non-core services cannot, without more, be viewed as an adverse distinction based on an enumerated ground.” As the Court’s conclusions in Auton make clear, the rigors of a section 15 analysis will not be lessened even in the case of patients who argue that access to treatment is necessary for their health and wellbeing.
Further, the Court held that once the position of the claimants in Auton was evaluated alongside the “appropriate comparator group” (e.g.persons without a “mental disability” desiring beneficial but novel medical services), “differential treatment either directly or by effect [was] not established” as the evidence did not indicate that the government gave additional consideration to or was more likely to grant applications for unproven therapies made by persons in the comparator group. Given the narrow characterization of the “comparator group” in Auton, the case would seem to preclude reliance on section 15 by persons seeking unproven treatments which are not included in the existing public insurance scheme, in the absence of evidence that other groups receive coverage for unproven therapies at greater rates. This reading of the case has significant implications for patients with rare diseases, given that many rare diseases have no treatment and thus a significant number of patients may desire to access unproven therapies.
Also relevant is the decision of the Nova Scotia Court of Appeal in Cameron v Nova Scotia. In that case, an infertile couple claimed that omission of ICSI from the provincial health plan discriminated on the basis of disability, as the plan covered IVF treatment for couples who suffered only from female infertility and thus did not require ICSI. The Court agreed that the policy was discriminatory, holding that denial of access to Medicare (“a cornerstone of social programs in Canada”) reinforced the “vulnerability” and ostracism of infertile couples. However, the Court found that the infringement was saved under section 1 of the Charter. As part of the section 1 analysis, the majority of the Court emphasized the importance of the purpose of the exclusion, namely ensuring “the best possible health care coverage to Nova Scotians in the context of limited financial resources.”
Based on Auton and Cameron, it seems that patients bringing a section 15 challenge to establish that a government has an obligation to fund a particular treatment will face an uphill battle, as courts generally show great deference to decisions of this nature. However, that hill may be mounted in a case with the right set of facts, a strong evidential foundation establishing discrimination, and weak government arguments at the justification stage. Additionally, equality jurisprudence appears to be undergoing transformation. As the Supreme Court further develops section 15 doctrine and principles – by, for example, moving away from the “comparator group” analysis – the likelihood of success of this type of claim increases. After all, the “comparator group” was one of the stumbling blocks in Auton. Without the “comparator group” hurdle, it will be easier for a claimant with a rare disease seeking unproven medication to establish the existence of “differential treatment.”
Even if a Charter challenge is not successful, there may be merit in bringing such a claim. For example, Charter challenges hold government actors accountable by compelling them to produce evidence justifying their actions and decisions in the health care realm. Of course, these benefits need to be balanced against the potential costs (in terms of both money and time) of Charter litigation.
B. Administrative Law
Patients with rare diseases may also consider using administrative law processes and procedures to challenge coverage decisions. Like Charter litigation, administrative law obliges governments to account for their actions and ensures that institutional decision-making is done in a fair and impartial manner. Administrative law may be preferable to Charter litigation, as it tends to be quicker and less expensive.
As noted above, some provincial administrative tribunals, like Ontario’s Health Services Review and Appeal Board, have limited authority to weigh in on health coverage decisions. For example, the Appeal Board can determine whether persons who contest denial of insurance are indeed covered under the provincial Act. The board is also empowered to make decisions on reimbursement for health care expenses incurred outside of Canada. However, the scope of the board’s jurisdiction is limited, and it has no general authority to evaluate coverage decisions.
In addition to these administrative mechanisms, a patient may turn to the courts for judicial review of either the substantive decision (i.e. the decision to cover (or not) a particular medical service) or the process used to make that decision. Under the principles of administrative law, government decision-makers must act within the ambit of power bestowed upon them by statute and they must act in a way that is sufficiently fair and transparent.
As discussed above, coverage decisions are made by numerous government actors, acting pursuant to statutory authority. Generally, coverage decisions are made by the provincial cabinet and Minister of Health, regional health boards, and other officials within the provincial health department. Judicial review is concerned with whether these bodies have properly acted within their jurisdiction and thus each case will require a detailed analysis of the governing statute and the action purportedly taken under it. General principles are canvassed below, but, of course, the old caveat rings particularly true in the context of administrative law: the outcome depends on the particular facts of the case.
In Lexogest Inc v Manitoba, the Manitoba Court of Appeal found that the Manitoba Heath Services Commission acted outside its jurisdiction by setting up a funding policy which covered abortion services if they were provided in hospitals, but not if they occurred in other health centres. While the Commission had legislative sanction to determine which services would be covered, it could not exercise this power arbitrarily.
The Ontario High Court of Justice in Re Koonar, dismissed an application brought by physiotherapists who sought review of the decision of the provincial health department to deny insurance coverage for their services. The Court found that “[t]he extent of that insurance was a policy decision, a legislative decision which is not subject to review.”
In another case, following a decision by a government official to withdraw a particular drug from availability through the Special Access Programme (which provides an exceptional means for patients to access unapproved drugs), patients sought review on the grounds that the official acted outside the scope of his statutory authority. The Federal Court agreed, holding that the official had, by limiting his decision in advance and in a manner not consistent with the legislative purpose, unlawfully fettered the broad discretion granted to him under the statute.
With that background set out, it is apposite to turn to the particular situation at hand, namely, an administrative-based challenge to a government decision to exclude from its insurance plan a treatment desired by a patient with a rare disease. First, a patient may consider challenging the procedure used to make the impugned decision. At common law, administrative actors owe a duty of procedural fairness to individuals whose rights or interests are affected by specific, individualized decisions. No duty is owed for general, policy decisions. Most often, decisions about which medical services should be funded will be policy decisions, involving the apportionment of resources among competing groups, and thus no duty of procedural fairness will attach. In some cases, a duty of procedural fairness may be owed to an individual if the decision is sufficiently particular to that individual. This would likely be the case for a patient who requests reimbursement for out-of-province treatment. While the content necessary to satisfy the duty of procedural fairness varies from case to case, it may require that the affected individual be given an opportunity to respond or to submit evidence for the decision-maker’s consideration. However, as noted, for the most part, patients with rare diseases who as a group seek coverage for medications are likely not owed administrative procedural fairness protections. The government may, on its own initiative and without legal compulsion, seek input from patients with rare diseases in making health care coverage decisions, and indeed, certain processes have been recently put in place to facilitate public participation in these types of decisions.
Second, a patient may challenge the substantive decision to include or exclude medical services from public insurance plans, by, for example, arguing that the decision-maker erred in giving weight to irrelevant considerations or misconstrued relevant evidence. A court must determine the governing standard of review, being either “correctness” (whereby the court embarks on a fresh assessment of the matter) or “reasonableness” (the more deferential standard, which asks “whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”). If a board is granted considerable discretion under its enabling statute and it is deciding a question within its domain of expertise, its judgment will often be shown deference by the reviewing court. This will frequently be the case for health coverage decisions, as many statutes grant power to administrative actors in general terms which impute significant discretion to the body in question. However, as noted above, outcomes in administrative law depend heavily on the context and the statute in issue, and thus the matter will turn on the particulars of the statute.
C. Human Rights Legislation
Canadian human rights legislation guarantees protection from discrimination in the provision of public services. Patients with rare diseases may seek to use human rights legislation to contest decisions that have the effect of denying them access to health care services. While it appears that no recorded cases have considered human rights legislation in the context of patients with rare diseases seeking treatment, this avenue has been successful in analogous situations, and thus a review of cases sheds light on how courts may decide claims brought by patients with rare diseases.
Human rights legislation has been successfully relied upon by trans-persons seeking public insurance coverage for sex reassignment surgery. In Waters v British Columbia, the BC Human Rights Tribunal found that the provincial health plan, which paid for vaginoplasty for trans-women but did not cover the whole cost of phalloplasty for trans-men, was discriminatory. Similarly, in Hogan v Ontario, a majority of the Ontario Human Rights Tribunal held that the government’s decisions to remove sex reassignment surgery from the list of funded services and not to extend stop-gap funding to cover the claimants who were in the midst of the procedure was a violation of the Human Rights Code, as the government had not established it was incapable of accommodating this group of claimants. The majority carefully noted that the government retained the power to make coverage decisions and to remove therapies from coverage. But, in this case, it was unacceptable for the government to “pull the plug” on claimants who were well into the process.
In two recent cases, male patients argued that provincial insurance plans, by covering screening for breast and uterine cancer but not covering screening for prostate cancer, discriminated on the basis of sex. The complaint was dismissed in both cases. In Armstrong v British Columbia, the BC Court of Appeal upheld the conclusion of the adjudicator who found that the coverage decision was not related to sex, but rather based on medical efficacy, as prostate cancer screening, unlike breast and uterine cancer screening, was not proven to be effective. Similarly, in Cochrane v Ontario, the Ontario Human Rights Tribunal found that the evidence did not prove that prostate cancer screening increased survival rates and thus, like in Armstrong, efficacy – not sex – was the motivation for the decision. In both cases, the adjudicative body tied coverage decisions to evidence of efficacy, perhaps cementing a requirement that coverage decisions be evidence-based. If the approach in Armstrong and Cochrane is followed in the future, it seems unlikely that courts will order that the government pay for experimental treatments that lack at least some evidence of medical efficacy.
The BC Human Rights Tribunal similarly focused on evidence of efficacy in Turnbull v British Columbia. Under the provincial health plan, venous angioplasty was not covered for multiple sclerosis (MS), but was covered for other conditions. Turnbull argued that this constituted discrimination on the basis of disability, because the treatment would be covered if he had a different disease instead of MS. The fact that the treatment was novel and untried for MS factored heavily into the tribunal’s decision to dismiss the complaint.
In the well-known case of Canada v Buffett, however, Buffett successfully argued that the failure of the Canadian Forces to pay for in intra-cytoplasmic sperm injection (ICSI) for male service members while paying for in vitro infertilization (IVF) for female service members constituted discrimination on the basis of sex and disability.
Also relevant are decisions related to the obligation of governments to fund special programming for children with disabilities. In Moore v British Columbia, the Supreme Court of Canada found that the province acted discriminatorily when it abolished special programming that benefited a child with a mental disability. The Court rejected the assertion by the province and the school district that their action was necessary to tackle a “budgetary crisis,” as “the cuts were disproportionably made to special needs programs” and no consideration was first given to other ways in which the financial crisis could be resolved. Extrapolating principles from this decision to the health care context, it would seem that, while budgetary considerations can justify delisting or excluding medical services from coverage, patients with rare diseases must not bear the brunt of financial constraints. In other words, governments cannot justify coverage decisions based on economic arguments if those decisions disproportionately impact patients with rare diseases.
As this brief review highlights, individuals have had mixed success in using human rights legislation to challenge governmental resource allocation decisions. For patients with rare diseases to make use of this tool, they must “demonstrate prima facie discrimination … [by] show[ing] that they have a characteristic protected from discrimination under the [relevant human rights] Code; that they experienced an adverse impact with respect to the service; and that the protected characteristic was a factor in the adverse impact.” Their efforts in this regard will be furthered by the types of arguments and evidence recounted under the discussion of section 15 of the Charter. In order to establish that “the protected characteristic was a factor in the adverse impact,” patients may need to present evidence that the sought treatment is likely to be effective. If they are unable to do so, they may fail to prove that the impugned decision was in fact made on the basis of disability, rather than on the grounds that the therapy is not scientifically proven.
The government then has the onus of proving that denial of funding is justified and may argue that budgetary constraints and the high cost of orphan drugs warrant the impugned action or decision. However, as the Supreme Court of Canada stated in Moore, “accommodation is not a question of ‘mere efficiency’, since ‘[i]t will always seem demonstrably cheaper to maintain the status quo and not eliminate a discriminatory barrier’.” The budgetary circumstances must be such that funding cannot reasonably be extended to cover the requested therapy without causing serious difficulties for the government. Given the exceptionally high cost of some orphan drugs, the government may be able to establish that it could not reasonably afford to cover these treatments. It should be noted, however, that data from Europe suggests that fees paid for orphan drugs constitute only a small fraction of the overall health budgets of many countries. Further, if the cost of the treatment is minor, the court may reject the government’s assertion that covering the cost of therapies for patients with rare diseases would be an unreasonable burden.
D. International Law
International covenants affirm that facilitating access to health care is a crucial component in attaining the overall wellbeing of all people. By way of example, the Universal Declaration of Human Rights states that “[e]veryone has the right to a standard of living adequate for the health and wellbeing of himself and of his family, including … medical care.” Similarly, Article 12 of the International Covenant on Economic, Social and Political Rights (ICESPR) recognizes “the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.” Parties to the Covenant commit to “achieving progressively the full realization” of this right, including “[t]he creation of conditions which would assure to all medical service and medical attention in the event of sickness.”
Canada is a party to the ICESPR and thus has obligations under international law to fulfill the commitments made under that treaty. The ICESPR has not found its way into domestic implementing legislation, however. Thus, while it cannot ground a claim by a patient with a rare disease in Canadian courts, it does form part of the background in which judicial interpretation of domestic legislation in, say, an administrative or Charter case, occurs. The impact of international covenants is succinctly explained in a report to Parliament:
[W]hile unincorporated treaties do not necessarily alter Canadian domestic law, they can and do influence its interpretation. A common law doctrine, which applies in Canada, holds that in interpreting legislation, courts should presume that Parliament intended to legislate in a manner consistent with its international treaty obligations … [I]t is clear that the courts can make use of international human rights law in interpretation.
Accordingly, patients with rare diseases cannot directly rely on the guarantees contained in international treaties. However, patients would be well advised to emphasize Canada’s international obligations if bringing claims under domestic legislation or the Charter, particularly given the generous scope of some provisions in international documents. For example, if the benchmark set out in the ICESPR were adopted by Canadian courts, then entitlement to many medical services would likely follow. These services would include therapies that are necessary to extend life or ease pain, and also, arguably, experimental therapies that, while unproven, are reasonably anticipated by patients to have some positive effects. The latter category is suggested on the basis of the stress, disappointment and feelings of hopelessness associated with denial of funding for treatment (and thus, in effect, denial of treatment if costs make it unattainable). These emotional responses should be taken into account when considering what services are necessary in order for patients to achieve the “highest attainable standard of physical and mental health” as provided for by the ICESPR.
E. Tort Law
Tort law is another potential tool for patients seeking funding for desired medical services. This section addresses the issue of whether a patient who is unable to access treatment as a result of a government’s refusal to fund that treatment could claim against the government on grounds of negligence. This question considers the matter of resource allocation at the macro-level (i.e. the policy phase where “big picture” resource allocation decisions are made), as well as at the micro-level (i.e. everyday, individual decisions about how to make use of and expend resources). The discussion thus far has focused on legal claims brought to challenge the decision of governments or government actors, not individual physicians, though they too make a type of resource allocation decision at a patient’s bed-side when they decide whether to administer treatment. This section of the paper considers whether individual physicians and other health care providers who refuse to provide treatment in order to conserve system resources could be liable if the patient then suffers harm. In other words, can physicians rely on what Caulfield calls the “cost-containment defence”?
At the macro-level of resource allocation, what use can be made of tort law to contest allocation decisions? In a recent review of Canadian jurisprudence, Lorian Hardcastle identifies several types of claims that may be brought against the government: claims for mishandling pandemics; claims related to system management failures; and claims for deaths caused by long wait times. A brief review of some of these cases is in order before a discussion of the probability that patients with rare diseases will succeed with system-level negligence claims.
The Ontario Court of Appeal has struck claims brought by patients and health care professionals who argued that the province failed to protect them and to manage the hospital system properly after they contracted communicable diseases. The Court soundly rejected the plaintiffs’ arguments in Eliopoulos Estate v Ontario (Minister of Health and Long-Term Care), observing:
[T]o impose a private law duty of care on the facts that have been pleaded here would create an unreasonable and undesirable burden on Ontario that would interfere with sound decision-making in the realm of public health. Public health priorities should be based on the general public interest. Public health authorities should be left to decide where to focus their attention and resources without the fear or threat of lawsuits.
Similarly, the Quebec Court of Appeal dismissed an application for the certification of a class action brought by cancer patients who accused the government and hospitals of negligently delaying their treatment. The clear policy nature of the decision did not warrant allowing the claim to proceed.
In contrast, the Ontario Court of Appeal in Heaslip Estate v Mansfield Ski Club declined to strike the claim of plaintiffs who argued that the government acted negligently by failing to send air-based medical support to transport an injured teenager, contrary to the government’s own guidelines. The Court believed that the situation fell within the pre-existing class of duties which entailed liability if “a public authority… negligent[ly] fail[ed] to act in accordance with an established policy where it is reasonably foreseeable that failure to do so will cause physical harm to the plaintiff.” The Court added that a duty could be found on an Anns negligence analysis. The Court distinguished the type of government decisions that are immune from liability due to policy considerations from the claim before it, as this claim was “based upon the negligent failure to respond to a specific request for a service that is being provided under an established policy” rather than a challenge to the development of general policy.
This review of cases suggests that tort law is not a promising prospect for patients with rare diseases who seek to challenge government health care allocation decisions. As Hardcastle notes, many of these cases are decided at the duty stage, and courts have been unwilling to find the requisite proximity between the plaintiffs and the defendant governments or hospitals which is necessary to base a duty of care. Chief Justice McLachlin explained the proximity requirement in Hill v Hamilton-Wentworth Regional Police Services Board as follows:
The most basic factor upon which the proximity analysis fixes is whether there is a relationship between the alleged wrongdoer and the victim, usually described by the words “close and direct”. This factor is not concerned with how intimate the plaintiff and defendant were or with their physical proximity, so much as with whether the actions of the alleged wrongdoer have a close or direct effect on the victim, such that the wrongdoer ought to have had the victim in mind as a person potentially harmed. A sufficiently close and direct connection between the actions of the wrongdoer and the victim may exist where there is a personal relationship between alleged wrongdoer and victim. However, it may also exist where there is no personal relationship between the victim and wrongdoer.
Undoubtedly, government decisions about what medical services to fund or not fund will deeply and significantly impact some individuals. However, it seems unlikely that courts would expect the government to ave individual patients “in mind” as “person[s] potentially harmed.” In a general sort of way, the government will expect that its decisions in the health care realm will affect people’s lives, but, generally, it will not anticipate the specific harms that may result or the particular persons (or groups of persons) that will be impacted. Unlike in Hill, where police were found to be adequately proximate to an individual suspect to ground a duty of care, no patient is “singled out” or “particularized” when the government makes general health coverage decisions. The government is dealing with – to use the language from Hill – “the universe of all potential” patients.
Even if plaintiffs establish proximity, a court may find that the duty should be abrogated for policy reasons under the second branch of the Anns test. In Hill, McLachlin CJC explained that “the final stage of Anns is concerned with ‘residual policy considerations’ which ‘are not concerned with the relationship between the parties, but with the effect of recognizing a duty of care on other legal obligations, the legal system and society more generally’.” For example, under the “residual policy consideration” criterion, a court should ask whether there is “potential for conflict between a duty of care in negligence and other duties owed by” the government, such as, “duties [owed] to the public at large.” This concern motivated the Ontario Court of Appeal in Eliopoulos Estate (discussed above) to hold that “impos[ing] a private law duty … would create an unreasonable and undesirable burden … that would interfere with sound decision-making in the realm of public health.” Courts are likely to find that duties to individual persons are inconsistent with the government’s overarching responsibility to provide a cost-effective, reliable and fair health care system. Courts will thus “negate” the duty on the basis of policy-related worries that the imposition of such an obligation would unduly interfere with the government’s discretion to allocate resources in a manner it believes best meets the needs and expectations of all Canadians.
Additionally, it must be noted that, pursuant to the Supreme Court’s decision in Just, governments are not liable for “true policy decisions” that “involve or are dictated by financial, economic, social or political factors or constraints.”Health care coverage decisions, as they involve resource distribution and financial wrangling, are likely the type of decision for which a government will not be liable.
Thus, for patients with rare diseases, the policy hurdles to establishing a duty of care will be difficult to overcome. A patient would need to establish that the impugned decision is in fact an “operational decision” which executes established policy. One could attempt to characterize the decision to deliver accessible, high-quality health care a “policy decision” and choices about individual services “operational decisions” made in the course of realizing that policy. This approach may avoid running afoul of the Supreme Court’s observation that, “[a]s a general rule, decisions concerning budgetary allotments for departments or government agencies will be classified as policy decisions,” because funding (or not funding) individual services may not implicate larger budgetary decisions if the “operational decisions” are made by “lower level” actors within the parameters – including ultimate financial constraints – of the policy. That is, the decision regarding how much money to allocate to overall health spending may be a “policy decision” immune from liability, but, provided the budget is not exceeded, decisions about how to spend that money (on treatment x and not treatment y) may be “operational decisions.” However, based on Canadian case law, this approach, in so far as it seeks to challenge listing and delisting decisions, is unlikely to find favour before the courts unless and until courts perceive “money decisions” to be operational ones.
Turning to micro-level decision-making, physicians and other medical service providers are unlikely to escape liability for malpractice by arguing that fiscal restraints justified their decision not to provide a particular service. In Law Estate v Simice, the British Columbia Supreme Court rejected the physician’s defence that he did not send the patient for a CT scan because of monetary restrictions. The Court noted: “if it comes to a choice between a physician’s responsibility to his or her individual patient and his or her responsibility to the medicare system overall, the former must take precedence in a case such as this.” The Court observed that the physical harm to the patient is “far greater than the financial harm” to the system.
This line of reasoning will be useful if a patient with a rare disease is denied an expensive treatment by a physician on the basis of cost considerations. However, it is unclear whether this scenario is common and thus Simice may not be particularly helpful for patients with rare diseases.
A lawsuit pursued against an individual physician will require consideration of whether the physician has met the requisite standard of care, which is assessed in comparison to “the conduct of a prudent and diligent doctor in the same circumstances.” The efficacy of the sought drug may be relevant at this stage of the analysis. If, for example, the drug is experimental and unproven, a defendant physician can more easily establish that he or she acted “in accordance with the conduct of a prudent and diligent doctor in the same circumstances,” by arguing that his or her peers would be cautious about administering medication without the belief that the drug has at least some chance of benefiting the patient. The fact that the patient has a rare disease – and not a common illness – may also be relevant to the determination of whether the health care provider has fallen below the standard of care. Some lower courts have found that the rare nature of an illness militates in favour of a finding that the defendant met the applicable standard, as physicians in the same setting with the same experience would not recognize the unusual disease.
Even if claims against individual health care providers were likely to be successful, it should be added that tort law challenges to individual decision-makers may not be ideal from the perspective of patients with rare diseases as a group, as the individualized outcome in tort cases does not necessarily lead to the larger, policy change desired by many patients. As Caulfield notes:
[T]ort law is not the best tool for effectuating health care reform. Malpractice lawsuits are determined on a case-by-case basis. They focus on the rights and legal duties of individual physicians and patients. And while the principles of tort law obviously have social utility, such as the compensation of patients who are injured by negligence, the rights and duties of patients and physicians are rarely subordinated to the needs of the broader health care system.
While an individual patient may win his or her case, the larger group of patients is still left without access to treatment.
LinkedIn is doing more these days to attract college students, and to work with colleges to use the website to get better data on what their students do after graduation.
The social-networking company announced on Wednesday a new feature that allows college students and graduates to add their college affiliation to the education section of their profile by clicking a button on the college’s website or in an email from the college. When they do that, public information from their profile, such as where they live and work and what they do, is then compiled into college-specific metrics.
The metrics, which are accessible via LinkedIn, allow users to see what a college’s alumni are up to. Those statistics are not new, but the new button could increase the number of students who take part, which could bring more data to the colleges and to LinkedIn.
At the University of California at San Diego, career-services and alumni-relations offices have been combined as part of an effort to commit to ensuring the success and mobility of students, said Armin Afsahi, associate vice chancellor and chief alumni officer.
LinkedIn has played a key role in helping UC-San Diego keep track of and engage with alumni, and the Add-to-Profile button is just the next step, Mr. Afsahi said.
UC-San Diego is one of 13 colleges using LinkedIn’s Add-to-Profile button so far.
The program aggregates data in a way that can help to serve both alumni and students. “Data should inform all of this,” Mr. Afsahi said. “Companies like LinkedIn have been so terrific in providing an aggregate database. By serving the users, they’re also providing aggregate data that informs so much better decision making and relationship development.”
It’s not always clear to students where their major will lead them after college, Mr. Afsahi said. With LinkedIn, they can see what alumni who earned degrees in a specific area have done since graduating — and that can help students decide whether to change their major.
“If I’m a 19-year-old or a 20-year-old, the most validating thing that assures me that I’m on the right track is by looking at the other 20,000 people who are like me who are graduates from my school,” Mr. Afsahi said.
It can also help alumni looking to recruit at their alma mater.
UC-San Diego, like many recruiters in the private sector, has a license that allows it to see LinkedIn’s back-end data, which permits advanced searches, Mr. Afsahi said.
He gave this example of how such a search could be useful: Someone putting on a theatrical production in New York contacts Mr. Afsahi for recommendations of people for the show. He can then do an advanced search through the data to find ideal candidates to suggest, and he can reach out to them, through either LinkedIn or information in the college’s alumni database.
“It becomes almost like a brokering function,” Mr. Afsahi said.
At a time when the value of higher education is being questioned, Mr. Afsahi said, it’s important for colleges to do everything they can to help students succeed after they graduate.
“That’s the changing face of higher ed,” he said. “We’ve always graduated and assumed they’ll go on and do great things — and they have, our graduates do great things — but what we’re doing at UC-San Diego is fully committing ourselves to making that happen and being intentional about doing so.”
Tutorial: How to sync a GitHub or Google Code repo to a SourceForge project | SourceForge Community Blog. http://sourceforge.net/blog/tutorial-how-to-sync-a-github-or-google-code-repo-to-a-sourceforge-project/
Last week, I joined some 25 others at a Winnipeg bar for Paint Nite. Many of those present were painting for the first time since elementary school. Nonetheless, two hours (and a few beers) later, we each walked out proudly holding the product of the evening’s work. I posted a picture of my creation online and soon received a lot of positive (and some incredulous) feedback on the painting.
That experience got me thinking about what we mean when we talk about creativity. How is it that a room full of individuals who don’t normally paint could each manage to produce a decent painting after just a couple of hours? What made that evening different from every other night?
Paint Nite organizers provide the tools: paint, brushes and canvas. They provide instruction and a safe atmosphere in which to try something new. Those attending each came with an attitude of openness and having set aside time in which there were no other competing distractions. The venue provided food and drink to keep up the spirits and blood sugar levels of those attending.
In that environment, with those tools and a little encouragement, the creative process was fruitful for even the most artistically challenged among us.
According to the CBA’s Futures report, one of the criteria for being a good lawyer is creativity. In fact, one of the over-arching themes of that report is the need for all lawyers to both develop and use creative approaches to adapt to the demands of the future of legal practice. That may feel like something of a challenge for many lawyers, who tend to think of themselves as more rational than creative.
But Kevin Ashton, author of How to Fly a Horse suggests that the idea that only a few possess creative genius is something of a myth. Ashton, who was interviewed this week on CBC’s The Current believes that creative intelligence is something we all possess and that creativity is an innate human behaviour:
Birds fly. Humans create.
Ashton noted that innovation really comes about as a series of incremental steps in which we look at an existing process or thing and consider how to do it better or make improvements.
Many think of creativity as a rare skill possessed by those who come up with big, breakthrough ideas — visionaries such as Steve Jobs, for example. But creativity comes in all sizes. Creativity scholars distinguish between “Big C” creativity and “Small c” creativity.
“Big C” creativity is the breakthrough kind of thinking that most people associate with “creative thinkers” such as Jobs and Thomas Edison, but it’s relatively rare. “Small c” creativity, on the other hand, describes the seemingly small ideas that can make a big difference in our lives, like a new organization system at home or project management system at work. A single “Small c” idea won’t bring fame or fortune, but lots of them will, over time, lead to incremental advances and daily improvements. And the best way to come up with a “Big C” breakthrough is to cultivate “Small c” thinking on a daily basis.
Creativity, therefore, is not about talent or some flash of inspiration. It’s about showing up and doing the work. It’s about developing a creativity habit. We’re all inherently creative. We just need to be creative.
More practically, how do risk-averse lawyers develop a creative habit? The answers are not so different than what I found in my Paint Nite experience, You need to set aside time to create, but it’s not necessary to completely carve out an isolated, distraction free space.
You need to think like a beginner. If you didn’t know anything about the problem to be solved or process to be improved, what questions would you ask? Challenge your assumptions and try to look at it through fresh eyes.
Listen to instruction, but don’t wholly rely on it. Use the tools you’re given, but make your own connections. Try something new even if it might fail, and trust your instincts.
Finally, keep at it. Embrace your innate creativity and give it ample opportunity to do its work in your life. When you make creativity a habit, you’ll find infinite opportunities to exercise it.
Canadians often look at intrusive, anti-privacy surveillance in other countries, and at things like the NSA and Patriot Act in the United States and think we are above that. But it is becoming apparent that Canada is just as bad. We need to do better than this and move the pendulum back towards individual rights and freedoms, and away from a surveillance society that does very little if anything to actually protect us.
For example, it recently came to light that the Communications Security Establishment, or CSE, Canada’s equivalent of the NSA, monitors and stores emails sent to Canadian government agencies.
This kind of surveillance is usually justified as being necessary to deal with terrorism and threats to national security, and its effects are downplayed by comments like its just metadata, or Canadians aren’t targeted. But there does not seem to be any evidence that all this surveillance and collection actually prevents anything bad from happening. Metadata is every bit as personal, private, and informative as the data itself. Who is targeted does not change the fact that personal information on citizens is being collected and retained, and that this information has the potential to be abused and used for undesirable purposes.
Mathew Ingram puts it well in an article in the Globe entitled We can’t accept Internet surveillance as the new normal.
The only good news is that the ongoing revelations about the nature and type of spying – largely because of Edward Snowden – are creating a growing public backlash, and tech companies are working to make it harder to intercept communications. Bill C-51, the anti-terrorism bill currently in the hearing stage is a case in point, which has attracted a huge amount of criticism – both over a lack of oversight, and as to the intrusiveness and potential abuse of authority that could result.
See, for example, this Huff Post article entitled Edward Snowden Warns Canadian To Be ‘Extraordinarily Cautious’ Over Anti-Terror Bill, and Michael Geist’s article entitled Why The Anti-Terrorism Bill is Really an Anti-Privacy Bill: Bill C-51′s Evisceration of Privacy Protection
There is even a website dedicated to stopping the bill.
Lawyers should be able to get continuing legal education credit for watching daytime court shows like Judge Judy and The People’s Court. Seriously.
Daytime court shows are a window into the brains of regular people as they try to deal with their legal problems. If you watch closely, they contain important lessons about your clients that can make you a more effective advocate.
You can also learn a lot from watching conciliation court, but conciliation court judges and referees don’t let the drama play out. They cut off the wandering stories and just pry the material facts out of the parties. On court shows, the drama is the whole point, so the “judge” doesn’t cut off the “litigants” to keep the calendar moving. As a result, you get to see what the parties are thinking. You get a glimpse of their strategy, their ulterior motives, and their idea of justice.
Here are some of the things I’ve learned from Judge Judy and her colleagues on the court TV bench.1. Everyone Thinks They Can Be a Lawyer
The subtleties of legal argument are mostly lost on non-lawyers, who frequently think they would do a better job than a lawyer. Watch the after-the-verdict interview, and you’ll find that the losing party almost always thinks Judge Judy was just too dense to understand his or her clever theory of the case.
This often plays out when you meet with a potential client, too. Potential clients often walk into a lawyer’s office full of suspicion, if not outright mistrust. If you can’t get them to trust you and stop second-guessing you, it will be tough going throughout the representation. This generally takes longer than one meeting, obviously, but mutual trust is the key to a successful attorney-client relationship.2. Many People Just Want to Be Right
Time and again, Judge Judy’s litigants get off the point to argue about who was right about minor, immaterial details. Non-lawyers often treat litigation like a game where points are awarded for being right about anything that seems important at the time. They waste time and often harm their case by constantly wandering off the subject.
In order to help your clients testify more effectively, you have to help them understand what is relevant to their claims — or at least to trust you when you tell them. Yes, sometimes you may want to tell more of the story, but that should be a strategic decision, not something your client insists on doing in a futile effort to “win points.”3. The Legal Dispute is Rarely the Real Issue
If the legal dispute were the real issue, the parties probably would not want tell so many irrelevant facts in the first place. The reason they want to talk about all those side details is that they tell the story of what really matters. Many lawyers do not take this into account, and focus only on the money owed (or not owed). But if you can find a way to resolve the real dispute, the legal dispute may resolve itself.
(It is also a good idea to figure this out early on, because the money may not matter so much to your client once the other issues are resolved, and that could be a problem for you, especially if you are working on contingency.)4. You May Be Surprised by Your Clients
Every now and then, one of the parties will say something that makes sense — or even that is truly profound. That is why you should pay attention while your clients wander off in tangents in your office. They may not understand what is relevant, but they always know what they think is important. And sometimes they are right.
Listening to your clients takes time and patience. It’s easy to fall into the habit of skipping ahead to the important stuff. The problem is that as you skip ahead based on your expectation of what is important, you may miss some critical facts you weren’t expecting. That just means the whole story will come out later — probably when it will do the most harm. Make sure you let your clients tell their stories in your office so you aren’t surprised later on.
Next time you are working from home — or sidelined by the flu, spend a few hours watching some court TV shows. While you cannot (yet) get CLE credit for watching Judge Judy, consider it valuable research into the attorney-client relationship.Updates
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Each Wednesday we tell you which three English-language cases and which French-language case have been the most viewed* on CanLII and we give you a small sense of what the cases are about.
For this last week:
1. Potter v. New Brunswick Legal Aid Services Commission, 2015 SCC 10
 The issue in this appeal is whether and in what circumstances a non-unionized employee who is suspended with pay may claim to have been constructively dismissed. The case involves the indefinite suspension of an employee with pay in the context of negotiations for a buyout of his contract of employment. The courts below found that the suspension did not amount to constructive dismissal and that the employee, Mr. Potter, had therefore repudiated the contract when he brought an action for constructive dismissal. For the reasons that follow, I respectfully disagree. Mr. Potter’s employer, the New Brunswick Legal Aid Services Commission (“Commission”), lacked the authority, whether express or implied, to suspend him indefinitely with pay for the reasons it gave. I find that Mr. Potter was constructively dismissed and that he is accordingly entitled to damages for wrongful dismissal. I would adopt the trial judge’s provisional assessment of those damages, with the exception that the pension benefits Mr. Potter received should not be deducted from them.
2. Meads v. Meads, 2012 ABQB 571
 This Court has developed a new awareness and understanding of a category of vexatious litigant. As we shall see, while there is often a lack of homogeneity, and some individuals or groups have no name or special identity, they (by their own admission or by descriptions given by others) often fall into the following descriptions: Detaxers; Freemen or Freemen-on-the-Land; Sovereign Men or Sovereign Citizens; Church of the Ecumenical Redemption International (CERI); Moorish Law; and other labels – there is no closed list. In the absence of a better moniker, I have collectively labelled them as Organized Pseudolegal Commercial Argument litigants [“OPCA litigants”], to functionally define them collectively for what they literally are. These persons employ a collection of techniques and arguments promoted and sold by ‘gurus’ (as hereafter defined) to disrupt court operations and to attempt to frustrate the legal rights of governments, corporations, and individuals.
3. Fantl v. Transamerica Life Canada, 2015 ONSC 1367
 The Plaintiff’s negligent misrepresentation claim arises from a statement in the Information Folder that the Defendant was using “best efforts” to replicate the performance of the S&P 500 Total Return Index (the “S&P 500”). According to the Plaintiff, this representation was untrue, inaccurate and misleading.
 At the certification motion, the Defendant conceded that the Plaintiff’s negligent misrepresentation claim “pass[ed] over the cause of action and identifiable class criteria” and accepted that there were some common issues for this claim that could be certified (Motion judge’s reasons, para. 15). The motion judge found that while the Plaintiff’s “litigation plan may have to be updated,” he was a suitable representative plaintiff (Motion judge’s reasons, para. 18). Thus, the Plaintiff satisfied four parts of the five-part test for certification under s. 5(1) of the Class Proceedings Act, 1992, S.O. 1992, c. 6 (the “Act”).
The most-consulted French-language decision was Multani c. Commission scolaire Marguerite-Bourgeoys,  1 RCS 256, 2006 CSC 6
1 Il s’agit, dans le présent pourvoi, de déterminer si la décision d’un conseil des commissaires interdisant à un des élèves relevant de ce conseil de porter un kirpan à l’école, tel que le requiert sa religion, porte atteinte à la liberté de religion de cet élève. Dans l’affirmative, il faut se demander si cette atteinte constitue une limite raisonnable pouvant être justifiée par le besoin de maintenir un environnement sécuritaire à cette école.
2 Comme je l’expliquerai plus loin, je suis d’avis que la prohibition absolue de porter le kirpan porte atteinte à la liberté de religion garantie à l’élève concerné par l’al. 2a) de la Charte canadienne des droits et libertés (« Charte canadienne »). Cette atteinte ne peut être justifiée en vertu de l’article premier de la Charte canadienne, car il n’a pas été démontré qu’une telle prohibition constitue une atteinte minimale aux droits de cet élève. La décision du conseil des commissaires doit donc être déclarée nulle.
* As of January 2014 we measure the total amount of time spent on the pages rather than simply the number of hits; as well, a case once mentioned won’t appear again for three months.
What makes a law school great? What should a law school curriculum seek to accomplish in light of the school’s obligations to its students, its university, the pursuit of knowledge, the profession, and society as a whole? What should a law school strive to be?
Every law school has to answer these questions one way or another, and events of the last few years – the crises of American legal education and Canadian articling, and global and technological shifts in the legal services market – have given them greater urgency.
In this column I want to share my own law school’s recent efforts to answer them, and the significant curricular changes we have adopted in our attempt to bring ourselves closer to our standard for a great law school. This is not to suggest that our perspective and approach are the right ones (although I am in no way going to pretend to be neutral given I was Chair (later Co-Chair with Jennifer Koshan) of the committee leading the process). It is simply to put them out there as one law school’s view on what it should strive to be.
Our answer started at the level of general principles. In particular, we decided that a great law school program must focus on three things: competence, performance, and engagement.
Competence requires knowledge and understanding of the concepts, methods, analysis, reasoning and critical perspectives in and about law. It requires intellectual engagement and rigour, and is directly connected to the scholarly mandate of a University education. Performance requires the ability to translate knowledge into action. It is where intellect meets practice, and learning turns into judgment or – aspirationally – wisdom. Engagement requires intensity and resolution in learning, investing time and effort in preparing for and attending classes, in completing course work and through participating in extra-curricular activities.
Competence and performance are distinct yet connected. Knowing something does not wholly teach you how to use what you know. And using what you know may require abilities – communication, inter-personal skills, practice management – which are distinct from substantive knowledge. At the same time, however, performance is impossible without substantive knowledge. And the ability to use and apply substantive knowledge will deepen it.
Engagement connects to both competence and performance. To put it bluntly, the only way students will achieve competence and performance is through a program which engages them – in which they are motivated to do the work necessary to gain knowledge and to learn how translate that knowledge into action.
From that level of principle we moved to the more specific – and more difficult and contentious question – of how we could change the delivery of our program to better ensure our students are engaged in achieving both competence and performance. After a year and half of work by a Committee made up of a quarter of faculty, and another eight months of working with faculty as a whole and consulting with students, the Law Society of Alberta and the profession, we adopted significant changes to all three years of our curriculum. The new Calgary curriculum contains most of our existing courses, and maintains our strong specialization in natural resources, energy and environmental law. But it gives students more opportunities to develop performance, deepen their competence and to be engaged in their learning.
Traditional legal education teaches competence well. Most Canadian law school grads, including ours, have knowledge and understanding of the concepts, methods, analysis, reasoning and critical perspectives in and about law. What law schools don’t do particularly well is allow students to deepen competence through performance, or to learn the aspects of performance that are distinct from competence. The new Calgary curriculum aims to deepen competence and enhance performance. Specifically:
As an example, in Ethical Lawyering students will be evaluated through assignments that may include writing a short policy paper on a regulatory issue (e.g., ABS), drafting a law society complaint against a lawyer, drafting an originating notice to remove a lawyer for a conflict, drafting a statement of claim or defence given an allegation of professional negligence, writing a memorandum of argument in a case of ineffective assistance of counsel or writing a reflective essay on the lawyer’s obligation to pursue (or not) lawful but immoral actions for a client.
Over time the number of PBL courses will be expanded.
In order to foster student engagement – to encourage investment of time and effort in their legal studies – the Calgary curriculum focuses on 1) increasing student choice; 2) introducing more focused and intensive learning (to allow students to deepen their effort in one area rather than skimming the surface of several); and 3) improving scaffolding in the first year program.
The Calgary curriculum will remain a work in progress. We know that some changes will in practice work out better or worse than we envisioned them. We also know that the legal services market will continue to evolve, as will the resources and technology available to us as educators. We must continue to break down artificial separation between the academy and practice, where law as a lived enterprise is viewed as irrelevant to academic inquiry, and the academic study of law is viewed as irrelevant to practical problems. Part of our answer to the question of what makes a law school great must, in the end, include a willingness to continue to strive to achieve greatness, and never to assume that we’ve done so.
A college’s online presence isn’t as simple as the classic .edu. The college also has to worry about .com, .net, and .org, to protect its good name. And as of this week, there’s another domain type to worry about: .college.
On Tuesday colleges with registered trademarks were given first dibs at .college domains. Trademark holders are eligible to register and obtain domains that exactly match their trademarks — at no charge — until April 17. Another registration phase begins on April 20.
When new domain types were first discussed, there was “some discussion, some excitement, and some hand wringing” about what they might mean for colleges, said Gregory A. Jackson, who was formerly vice president for policy at Educause, an academic-technology organization, and chief information officer at the University of Chicago.
Some people in higher ed took the “who cares” approach, either because they didn’t think anyone looked at web addresses or because it would be impossible to keep up with all of them, Mr. Jackson said.
Others considered claiming as many domains as they could. There are a number of reasons that acquiring additional domains might be useful.
For colleges that didn’t obtain the ideal domain under .edu, it’s a second chance. Mr. Jackson gave as an example the University of Chicago, which has uchicago.edu rather than chicago.edu.
Others will claim additional domains to protect themselves. In fact, most institutions are likely to acquire them as an act of defense, Mr. Jackson said. Better to scoop up a handful of domains, perhaps distributing them to student groups, than to risk having some other organization or person grab the name and use it in a way that could be misleading or embarrassing.
And .college isn’t the only domain they now must worry about. Mr. Jackson said there’s also a lot of discussion about .sucks, a domain any institution really wouldn’t want to lose track of, given its potential to paint a college in a negative light.
Many institutions will claim the obvious domains, Mr. Jackson said, but there are endless possibilities. The question is, he said, do you claim every single domain you can think of, or “just throw up your hands and say, at some point, this becomes too confusing”?
“It’s an opportunity for some, a modest hassle for others,” Mr. Jackson said. “And I would guess, here and there, it’s going to be a major hassle for places that don’t think of this, and someone goes and claims the name they wish they had, and uses it in a way the university wishes they wouldn’t.”
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40% of small law firms don’t have a website, and Casey Flaherty’s Legal Tech Audit was just the beginning of his quest to reform the way law firms use technology and price their services.40% of Small Law Firms Don’t Have a Website
Don’t always look at solos and lawyers in small law firms as luddites or curmudgeons because they don’t have a website.
We don’t agree. Lawyers ought to have a website as a matter of common decency, if nothing else. Listen in for our reasoning.Interview: Casey Flaherty
I’ve administered the audit 10 times to nine firms (one firm took it twice). As far as I am concerned, all the firms failed—some more spectacularly than others. The audit takes me 30 minutes. … The best pace of any associate was 2.5 hours. The worst pace was 8 hours. Both the median and mean (average) pace rounded to 5 hours.
In our interview, Flaherty talks about where the LTA came from, how he developed it, and what it means for the future (including his own future at Cost Control, LLC, his new venture).Listen and Subscribe
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