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. Henry v. British Columbia (Attorney General), 2015 SCC 24
 Mr. Henry brought a civil suit against the City of Vancouver (“City”), the Attorney General of British Columbia (“AGBC”), and the Attorney General of Canada (“AGC”), seeking damages for his wrongful convictions and imprisonment. The claims against the City and the AGC are not at issue in this appeal. We are concerned only with the claim against the AGBC for damages under s. 24(1) of the Canadian Charter of Rights and Freedoms. Specifically, Mr. Henry alleges that the provincial Crown should be held liable for its failure — before, during, and after his criminal trial — to meet its disclosure obligations under the Charter. The sole question before us is the level of fault that Mr. Henry must establish to sustain a cause of action against the AGBC in these circumstances.
(Check for commentary on CanLII Connects)
2. Ontario Psychological Association v. Mardonet, 2015 ONSC 1286
 The common law implied undertaking limits the use that the recipient of compelled disclosure can make of information obtained by that disclosure: Kitchenham v. AXA Insurance Canada, 2008 ONCA 877 (CanLII) at para. 29. The implied undertaking accepts that the privacy interests of litigants must yield to the disclosure obligation within the litigation, but that those interests should be protected in respect of matters other than the litigation: Juman v. Doucette, 2008 SCC 8 (CanLII),  1 S.C.R. 157 at paras. 23-27. And thus, in the case at bar, the Defendants also have the protection of the implied undertaking, as far as it goes, which is not that far, because the deemed or implied undertaking does not apply to evidence disclosed in open court.
(Check for commentary on CanLII Connects)
3. Apotex Inc. v. Eli Lily and Company, 2015 ONCA 305
 This is not a bilateral context where Apotex is the only party that has been wronged by Lilly. Effectively, Apotex is asking the court to designate it as the de facto beneficiary of the wrongfully-obtained monopolistic profits despite recognizing in its pleadings that it was the public that suffered actual deprivation as a result of the monopolistic pricing. Unlike the plaintiffs in the “profiting from wrong” cases discussed above, Apotex is not positioned as the sole party with a legitimate right to “enforce” or “deter” the underlying wrong. The pecuniary interests of consumers, and potentially other generic companies, are also implicated. Lilly did not owe Apotex an equitable duty, nor is this case akin to the “exceptional” breach of contract cases where courts award restitution damages to a plaintiff in order to prevent a defendant from exploiting a bilateral agreement to its advantage.
(Check for commentary on CanLII Connects)
The most-consulted French-language decision was Québec (Procureure générale) c. Magasins Best Buy ltée, 2015 QCCA 747
 Rien dans la Charte (ou dans d’autres lois) ne permet d’en venir à une conclusion autre que celle-là, conclusion qui correspond d’ailleurs à l’usage interprétatif que l’Office québécois de la langue française a pratiqué pendant plus de 15 ans. La procureure générale, à ce dernier propos, fait remarquer qu’une interprétation administrative contraire au texte de la loi ne pourrait empêcher que l’on rétablisse le sens véritable de celle-ci. Cela est exact, mais, comme le souligne le professeur Côté dans un passage que cite le juge de première instance : « il faut donc un motif valable pour rejeter un usage interprétatif qui n’est pas contraire au texte ». Or, c’est justement ce qu’on observe ici : la conduite interprétative de l’Office et du gouvernement, en l’espèce, a longtemps été conforme à la loi et ce n’est que récemment qu’elle a changé de cap, changement qui ne reflète pas les textes législatifs et réglementaires.
(Check for commentary on CanLII Connects)
* 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.
Not all countries prosper … Why?
There are over 190 countries in the world today. Some prosper, some do not. Why?
Some answers to such a question is the subject of a book by Francis Fukuyama in 2014 titled Political Order and Political Decay.
Some elements of prosperity include the free market ideas of Adam Smith plus an honest and effective government. Apparently democracy is not required for a country to prosper, even though a majority of countries (over 115) are today democracies.
An effective government provides an array of public goods, such as clean air, defense, public safety, public health, a legal system, an education system, roads, ports, water, etc. Such goods should be available to all, and not just to government supporters.
No country can get rich without an effective government – Fukuyama page 41. But government like any private-sector firm can be well or badly managed.
Some actions or omissions of a government that can delay or adversely affect prosperity are as follows:
Examples of problems arising out of excessive government spending are found today in Greece and Italy. At page 74 Fukuyama states:
“At the root of the problems of Greece and Italy is the fact that both countries have used public employment as a source of political patronage, leading to bloated and inefficient public services and ballooning budget deficits.”
Prosperity can be adversely affected by poor economic policies.
China’s emergence as an economic power is an example of the adoption of good economic policies. China’s economic policies changed radically in 1979. At that time China opted to reform and open its markets and this resulted in unprecedented prosperity. This policy resulted in the release of many millions of persons from poverty. At this time China had in place a government bureaucracy that served broad public interests. In fact China invented government meritocracy and the civil examination in the third century B.C. (see Fukuyama, page 178).
In his book Fukuyama also describes a process of government decay where the effectiveness of a bureaucracy can be lessened by mistaken policies and by powerful interest groups – see Fukuyama page 464.
What’s it like to be the only woman in the room during corporate board meetings? Or the first woman to chair a financial regulation authority in the midst of an economic crisis? Last week, three groundbreaking leaders – all lawyers by training – came together to talk about their experiences as women affecting change in a male dominated industry.
The event was hosted by the Edmond J. Safra Center for Ethics at Harvard University. Moderated by Ron Suskind, a journalist and leader of the Center’s Project for Public Narrative, the panel featured:
Why their words matter
Sitting in the small, quiet venue on the Harvard campus, I was struck by how candidly each panelist spoke about being an outsider throughout her career. Each was often the only or first person with a different perspective, background, class, gender and experience in boardrooms or on committees.
As the legal sector (finally) prioritizes diversity as a valued component of leadership, it might benefit from the insights of Bair, Shapiro and Warren.
Discourse about what will make or break any sector in transition often includes what that some cynically refer to as buzzwords: vision, innovation, trust, values, strategy, diversity. These days, the word is “character”.
“Character” neatly describes what we draw on when determining our personal approach to leadership and our reasons for wanting to affect (what we see as) necessary change, whether we realize it or not.
Regardless of your opinion of their job performance or politics, there is no denying that the panelists – collectively dubbed by Time Magazine as the “Sheriffs of Wall Street” – have character. Each warned of the 2008 recession well before it happened. Each was called upon to reform financial regulation during the crisis. And each continues to draw on their intelligence, experience and courage to try to prevent past mistakes from being repeated.
From Sheila Bair on often being the only woman in the boardroom. “[Sometimes women are worried about] the perception of being a ‘stick in the mud’ – there is one person dissenting and she’s a woman. It can be tough to divide what is [attributable to] gender and what isn’t. Your moral compass will be able to help you determine what is crucial to you.
My only advice is to keep focused on what your job is and what your objective is…if you retreat and say ‘you’re not listening to me because I’m a woman’ it doesn’t move your objective forward. If you focus on whether you’re being discriminated against, you might drive yourself crazy because it can be hard to separate that out in a causal way.”
From Mary Schapiro on what it takes to succeed as a woman in a male dominated industry. “Even if you figure out that gender is the issue in the room, there isn’t much you can do about it.
The way you defeat the stereotypes and the negativity around gender, prejudice and bias is by being very good at what you do.
[You need to be] very clear about where you’re going and why you think the path you’re taking is the right path, so that you can always defend it. At the end of the day, you have to be able to support what you’ve done.
You don’t want to get credit for something because you’re a woman, but you also don’t want it to be ignored. Your goal has to be to be the very best you can be, to bring all of your intellectual firepower and all of your political savvy to every decision you make in order to have it survive.”
On what is holding up the diversification of corporate boards, despite ample evidence that it makes business sense. Bair, who sits on three corporate boards, suggested “the best thing women can do is to help each other to try to open boards up. The [board recruitment] process now is still one that is geared towards the status quo”.
The Project on Public Narrative has posted a video of the discussion on its YouTube channel if you’d like to hear the entire discussion. The event was also covered in a Financial Times article posted on May 11th.
The New Yorker published a profile of Senator Warren its May 4th issue. I suspect that we will hear a lot more from her as the presidential election race heats up.
Sheila Bair has written two books about her experiences as a regulator and corporate board member – one explains the financial crisis and its implications for young adults.
Do you have a Home, University, or Personal subscription to Office 365? Well, bad news if you are using that software for your law practice:
The service/software may not be used for commercial, non-profit, or revenue-generating activities.
That’s from the Microsoft Software License Terms for Office Consumer Subscriptions.
How to Backup Your WordPress Website (and Multisite) Using Snapshot – WPMU DEV http://premium.wpmudev.org/blog/backup-with-snapshot/
If you are tired of drinking wine with strangers in conference rooms, you’re going to appreciate this podcast. Shannon Hoagland’s creative approach to entertaining clients is virtually guaranteed never to bore you.
This week Sam and Aaron also talk about a brand-new guide to increasing your computer security.4-Step Computer Security Upgrade
On today’s episode, Sam and Aaron talk about our great new guide to upgrading your computer security in 4 easy steps. It is a step-by-step guide to upgrading your computer security from a D- to a solid B, and you don’t need to be tech savvy to use it.
Most legal networking events involve drinking wine in rooms with strangers. By contrast, Shannon’s approach to client entertainment emphasizes three things:
In other words, entertaining clients doesn’t have to be a chore. Hanging out with your clients can be as much fun as hanging out with your friends — and if you’re doing it right your clients will be your friends.
Shannon even came up with a great idea for building a client event around one of my hobbies, winter camping.
To listen to the podcast, just scroll up and hit the play button.
To make sure you don’t miss an episode of the Lawyerist Podcast, subscribe now in iTunes, Stitcher, or any other podcast player. Or find out about new episodes by subscribing to the Lawyerist Insider, our email newsletter. We will announce new episodes in the Insider, and you can listen to them right here on Lawyerist.
Podcast #18: Shannon Hoagland’s Creative Remedy for Boring Networking Events was originally published on Lawyerist.
Our anxiety does not come from thinking about the future, but from wanting to control it.
– Kahlil Gibran
As I looked at quotes about the word “control”, I was struck by the variety of themes that emerged. My intention with this article was to talk about the effect of trying too hard to have control. But many people struggle with the need to take control. Where is the happy line between taking control of your life, and letting control overwhelm your life?
I’ve been told many times over the years, by various people, that I have “control issues”. This is not a revelation to me. I am well aware of it, and have been since I was a child. I was that kid who did the entire group project in class so I could make sure it was done right. Not a healthy way to think, but it did make me popular when the group assignments were handed out. I still struggle with this. I have been practicing law in a mid-sized firm for years, with plenty of associates, clerks and students willing and anxious to help, but I rarely go to them. I tell myself I am still trying to master the art of delegation. What I am really trying to master is the art of letting go. The stress of letting someone else do it can be worse than the stress of trying to get it done myself.
This need to control extends into my personal and family life as well. Every parent wants their children to happy, but my need to have everything go the way they want it to tends to keep me up at night, while they are sleeping soundly.
On the other side of the coin are people who struggle every day trying to talk themselves into stepping up and taking more control over their lives. When looking at the various quotes about control, they would have chosen something along the lines of: “Only you can control your future.” (Dr. Seuss). The stress that goes along with this is no less than mine; just different.
Where is the balance? As an undergrad studying psychology, the Personal Power Grid struck a chord with me. With apologies to the learned author who created it, and whose name escapes me, I will try to describe it. There are things in life that you CAN CONTROL and things in life that you CAN’T CONTROL. In the CAN CONTROL column, you either take action or you don’t. When you do, you are in the “Mastery” box. You have thoughts such as “I can do this!” and feelings of pride, happiness and contentment. When you don’t take action you are Giving Up. You think “There’s no point in trying.” and you have feelings of shame, guilt and anger.
In the CAN’T CONTROL column you also have a Take Action side and a Don’t Take Action side. Only here, the thoughts and feelings are reversed. When you take action, you can be Ceaselessly Striving. You are thinking “Why won’t they…?” “How can I…?” and your resultant feelings are of anger, anxiety and exhaustion. When you don’t take action, you are in the Acceptance, or Letting Go, box. You think “It is what it is”, “It’s in the past” and “I’m not going there anymore.”. Your feelings are peace, happiness, joy, and sometimes grief.
The unhealthiest place to be is firmly in the Ceaselessly Striving box, or firmly in the Giving Up box, yet it is between these two boxes that most of us live our lives. In fact, Ceaselessly Striving is particularly dangerous. You simply can’t control the world, and when you fail, you will fall hard into Giving Up. Instead, we should be seeking to live between the Mastery and Acceptance boxes.
So how do we escape Ceaselessly Striving/Giving Up and reach Mastery/Acceptance? We focus on the behaviours that go with them. Aggression and pointing fingers are the hallmarks of a person who is Ceaselessly Striving whereas Mastery involves assertiveness and accountability. Giving Up often goes hand in hand with avoidance, addictions and high risk behaviours. Acceptance comes with mindfulness, and often a good, cleansing cry.
Which of these behaviours and feelings sounds most like your own? Personally, I find myself too often in the Ceaselessly Striving area, and teetering on Giving Up. The feeling that stands out most to me is exhaustion. Trying to control the world around you is truly exhausting, and it gets worse as you get older. I’m going to try to remind myself to take a step across the diagram to Mastery, and a step down to Acceptance. Surely, I can control that much in my life, can’t I?
— Cheryl A. Canning
Partner, Burchells LLP
Halifax, Nova Scotia
Here are excerpts from the most recent tips on SlawTips, the site that each week offers up useful advice, short and to the point, on technology, research and practice.
When adding a picture or clipart to your PowerPoint or Word document, you may run into a situation where you don’t want its background to appear. This happens most frequently to me when I place a logo or symbol onto a PowerPoint slide and its background is a different colour than the background of the slide. …
Lawyer CPD Credits
Today’s Tip, with thanks to Michel-Adrien Sheppard for the idea, is a reminder to lawyers looking for CPD opportunities to look to law librarians. We can help with identifying interesting opportunities that cross our desks via publishers blurbs, calls for conference papers, media and social media monitoring. …
Fitbit Is Here!
Who knew that keeping track of your fitness could be addictive – and fun? Welcome to the world of wearable technology and in particular, the Fitbit. The FitBit Flex is a wearable fitness wristband that helps you track your daily activity in terms of steps, distance, calories burned and active minutes….
Four liberal-arts colleges on Monday formed a consortium to share information about their experiments with online education, and more members may soon join in.
The focus is not on bringing down the cost of education, but on improving online-teaching projects — whether all-online or hybrid courses — by sharing experiences and collaborating.
The premise is that liberal-arts institutions have goals and methods for going online that are different from those of research institutions. “There’s a steep learning curve to figuring out how to use this technology with our students, and with our teaching style,” said Douglas Johnson, an associate professor of psychology and director of the Center for Learning, Teaching, and Research at Colgate University, a founding member of the group. By working together, he said, “we can save each other from reinventing wheels.”
The other colleges involved are Davidson College, Hamilton College, and Wellesley College. All of the initial partners are also members of edX, the online MOOC provider started by Harvard University and the Massachusetts Institute of Technology, but the group is open to other institutions even if they aren’t part of that organization, said Kevin P. Lynch, chief information officer at Colgate.
Ann M. Fox, a professor of English at Davidson, has taught a MOOC, “Representations of HIV/AIDS,” on edX with several colleagues at Davidson. Now she imagines co-teaching a course online with a colleague from elsewhere in the consortium. “Very often in our small campuses we’re the only person who does what we do,” she said. “We can pool our resources more greatly.”
Provosts of the four colleges, along with some professors and other leaders, gathered at Wellesley on Monday to sign a formal agreement.
This is intriguing. Looks like some sort of Google Docs / MSFT Office 360 clone in open source. Uses mono to run on Linux. If it works it might be rather useful.
Coolers: generate cool color schemes quickly. http://coolors.co/
When it comes to technology, are we not always hearing about the breakneck speed of change? The inexorable pace and ubiquity of it? How technology is revolutionizing law and practice? Our magazines, CLEs and law bloggings are replete with calls to brace for one type of Lawmageddon or another—the imminent (or at least happening really, really, probably, rather soon) confluence of events that will change lawyers’ lives forever. Anything short of fully encrypted communication between lawyer and client will spell negligence. You will become or be devoured by an alternative business structure. Cybersecurity will become the mantra by which you practice lest agents of the state weaponize hard drives to upend your IT system. IBM’s Watson robots will seek and destroy your retainers until all clients are theirs. You will bunkerize your practice, virtualize your office, specialize in Bit-Coin Escrow law and fight the drone armies of the future from the paperless cloud.
What? You’re not a Lawmageddon prepper? Then you might agree that the pace of change actually feels fairly plodding sometimes. That’s what I’m seeing as I dust off and update my precedents and old slides on social media evidence for a webinar I’m rebooting this June. Despite my sense that social media authenticity and production should be a vibrant budding limb on the tree of law, surprisingly little appears to be happening in Canadian jurisprudence. Very interesting cases like R v Nde Soh, 2014 NBQB 20, which deals with the distinction of “real” versus “documentary” electronic evidence under the Canada Evidence Act, or Fric v. Gershman, 2012 BCSC 614, which is a nice summation of some principles for BC, are not mentioned in recent cases.
The folks I talk to (bench and bar) seem to shore up my theory that very few feel that preoccupied with the formalities of adducing social media evidence. Some firms and agencies harness special tools like X1 Social Discovery (or perhaps WebPreserver) to snag evidence-quality data, but are judges really losing sleep when no metadata is produced and counsel is otherwise passive? For a great run down of why we could (if we wanted to) be more observant of preserving, harvesting and authenticating social media evidence, there’s Sharon D. Nelson and John W. Simek’s recent piece.
As cited in that piece, US Federal District Court Judge Paul Grimm says “It is a near certainty that the public appetite for use of social media sites is unlikely to abate, and it is essential for courts and lawyers to do a better job in offering and admitting this evidence.” But how many of us are waiting for the water to ruin our picnic before we stop ignoring signs that the tide has in fact come in? It’s food for thought. What will the fraudulent social media evidence or goof-up look like that finally turns heads?
And on that note, here is a social media evidence checklist with basic steps and strategies for helping litigants and litigators to avoid goof ups, courtesy of the folks at Ellwood Evidence Inc. (excerpt reproduced with permission):
New – Cross-Account Access in the AWS Management Console | AWS Official Blog https://aws.amazon.com/blogs/aws/new-cross-account-access-in-the-aws-management-console/
OASIS* is a “nonprofit consortium that drives the development, convergence and adoption of open standards for the global information society.” Under the OASIS umbrella is the LegalXML Member Section a group of “lawyers, developers, application vendors, government agencies and members of academia” working on the creation of “standards for the electronic exchange of legal data.”
The OASIS LegalDocumentML (LegalDocML) Technical Committee recently announced a month long review period to gather feedback for a number of standards they have development.
“The OASIS LegalDocML TC works to advance worldwide best practices for the use of XML within a Parliaments’, Assembly’s or Congress’ document management processes, within courts’ and tribunals’ judgment management systems, and generally in legal documents including contracts. The work is based on the Akoma Ntoso-UN project. The LegalDocML TC’s goal is to collect requirements from the community of the stakeholders who create, manage and use legislative and legal documents (editors, libraries, public institutions, tribunals, publishers, etc.) in order to extend and refine the standard. … The standard aims to provide a format for long-term storage of and access to parliamentary, legislative and judicial documents that allows search, interpretation and visualization of documents.”
In a message to the Legal Informatics Research Network, Monica Palmirani, Co-Chair of the Technical Committee, lists the following Committee Specification Drafts (CSDs) that are available for this review:
The specifications draw on the Akoma Ntoso project and the Technical Committee developed the Akoma Ntoso XML schema 3.0 along with the main documentation. The Akoma Ntoso XML standard “defines a ‘machine readable’ set of simple technology-neutral electronic representations (in XML format) of parliamentary, legislative and judiciary documents.”
To submit comments subscribe to the comment list and then send your comments to email@example.com. See the ‘Providing Feedback’ page for instructions and more information on the commenting process.
* i.e. the Organization for the Advancement of Structured Information Standards.
Following up on his previous posts on lawyers’ personality traits (autonomy, skepticism,urgency), and sociability) Ian Hu (practicePRO and Claims Prevention Counsel at LAWPRO) discusses “resilience”, a measure of how well lawyers bounce back from setbacks.
A lawyer high in resilience is receptive to criticism and feedback and is not defensive. He is less likely to take criticism personally and is better at focusing on accomplishing the task at hand. If he suffers a loss or is rejected, he will bounce back easily. With all the challenges lawyers face, you’d think we score high on resilience. Not so.
As Dr. Larry Richard states in this LAWPRO article, the average lawyer scores in the bottom 30th percentile in measures of resilience. A lawyer that is low on resilience is thin-skinned, defensive, and easily wounded by criticism. Even small things, such as a client or a lawyer not returning his call, will offend him. He will meet a request to turn in his dockets or to complete a task as a personal affront. He will sidetrack partners’ meetings with defensive tirades, and in doing so spark other less-resilient partners to respond in kind.
At the same time, a lawyer low on resilience has a surprising upside. As he is criticism-averse, he is risk-averse. He will do his best to keep his clients out of harm’s way. And to avoid criticism he will exhibit perfectionist tendencies and be less error-prone.
When law firms are filled with lawyers who score low on resilience – and they likely are, given the results of Dr. Richard’s studies – law firms are rendered unstable. Senior partners who are low on resilience build resentment when they take criticism and throw criticism at each other. If not managed properly, small fires become 5-alarm fires.
We can all think of law firms that were perfectly viable businesses that were thrown into disarray for other reasons. When lawyers, as a profession, lack resilience, it doesn’t help the cause.
Dr. Richard notes that resilience is largely a learned trait. Lawyers can be trained to become more resilient.
Each Monday we present brief excerpts of recent posts from five of Canada’s award-winning legal blogs chosen at random* from sixty recent Clawbie winners. In this way we hope to promote their work, with their permission, to as wide an audience as possible.
In the recent case of L.D. c. J.V., Superior Court judge Lukasz Granosik awarded damages to a plaintiff after the defendant recorded their sexual activities without her knowledge and consent, in a situation in which there was limited broadcasting of the recording….
Social Media for Law Firms
How To Use Twitter Like a Boss
Are you marketing your business on Twitter? If not, you should seriously consider getting started. According to Lori Taylor, the average Twitter user follows five or more businesses. Over a third (37%) of Twitter users will buy from a brand they follow. Here’s how to use Twitter like a pro….
People have many different ways of defining “family” and what being part of a family means to them. The idea that “a family is what you make it” or “families are who you love” is true enough when it comes to inheritance if you make a will. But the assumption that each of us can define family for ourselves is not true if we die without a will….
University of Alberta Faculty of Law Blog
So You’ve Decided to Elect a Minority Government
A version of this post appeared in The Globe and Mail on Monday, May 4, 2015. As voters across the province prepared to cast their ballots, they had to wonder: would this spring election end a Conservative political dynasty of over forty years? Would there be a minority government? …
Dans un environnement où les minutes sont comptées, l’art de bien résumer prend tout son sens. SOQUIJ l’a compris et offre grâce à ses résumés des services qui vous font à la fois gagner en temps et en efficacité. …
*Randomness here is created by Random.org and its list randomizing function.
Ten years ago Marc Lauritsen spoke at one of our conferences on the future of law. He projected ahead to 2015, and threw in a prediction as to who would be the US President. While the name was unknown to the Australian audience, the absurdity of his suggestion was highlighted by a supporting photo. Yes, the world was changing, but not THAT much, that soon.
Anything that Marc says has my instant attention. His development of choice boxing is a concept that definitely warrants serious exploration. This is a pioneering decision-support tool that results from 30 years of insight. Marc was mentioned in Slaw Tips regarding the importance of how you make a decision.
He also introduced me to Melbourne-based Tim van Gelder who was the hit of the Cardozo School of Law Conference in January 2007 on visual representation of evidence. Marc knew I am always on the lookout for visionary law related speakers for our annual conference.
Tim had started studying law, but was too smart to finish. His family included lawyers, so he knew what awaited him. Like Peter Hart, Tim was too far ahead of his time. He developed two world-leading decision support tools: Rationale, and bCisive.
A colleague who saw Tim present his work at one of our conferences described it as “dynamite”, an apt term for a military lawyer who advised on the legality of issuing commands like “fire!”.
An important component of Tim’s message was the value of a map as opposed to written directions, the utility of which, diminished with the amount of text. While technically more precise/correct, their accessibility for busy people, and consequently their benefit diminishes dramatically as the volume of text increases.
The same could be said of law and legal documents. Maybe we need maps for law. A legal GPS could tell us where we are on the legal map.
A map for a contract might benefit greatly from visualisation, according to Stefania Passera. She is writing-up her research findings on the effectiveness of visualization in contracts. Maps to a case could also benefit and might look like this, according to Chris Enright, who I have discussed here.
Recent research indicates that the human brain deals with each approaching object by working out how to avoid a collision. That is why navigating crowds in an unfamiliar environment is exhausting.
Self-driving cars are a reality that would be most welcome by the aged, those with a disability or time handicap like myself. Collision avoidance in self-driving cars is an essential feature. It would be a desirable component of any self-driving legal system.
This risks takes us into the domain of arguing whether a lawyer or a computer is better. Admittedly self-driving cars are safer than people driven cars, and computers do a better job, more quickly and cheaply than people in a review of documents for discovery purposes. However, a lawyer with a computer, particularly if using AI, will be much more effective than the same lawyer without IT-support.
Margot Stubbs is one such lawyer, not that she actually “needed” a computer to be a good lawyer. A mutual colleague said “she was the smartest lawyer he knows”. She clerked for an Australian High Court Judge on leaving law school and did postgraduate research at Yale on epistemology and law. She worked as an academic, then at the Bar, and more recently in the trenches as a Magistrate. She had been using iThoughts to support her decision-making on the bench.
Her academic interest in legal problem solving merged with the practical challenges of maintaining quality and consistency in the legal decision making process in the face of the significant expansions in the complexity and volume of law over the last 40 years. This was the genesis of her development of a software program, Neural Net Decision Systems, which allows the replication of a high level legal experts decision system which is made available to contextualise the decision process of a less experienced legal user.
Her use of the app for a year on the bench has taken it a long way to being productised. Those who have seen it are impressed, while staff from a major publisher thought it would transform their world. Unfortunately, I don’t have shares in her product, but I would certainly like them.
Other smart lawyers who saw the potential to transform the Law with decision support tools have had timing problems. As Peter Hart said 25 years ago about document assembly/expert systems: “Like Heaven, they were something lawyers desired, but not just yet”. He also said it would take 20 or so years, and if cars can drive us, those pearly gates must be looming fast. Alleluia.
When Ontario made wide-sweeping changes to automobile insurance and personal injury law in 2010, the intent was to reduce insurance premiums for the public. Although insurance companies did save money, much of these savings were not passed on to the consumers.
The amount of claims observed in Ontario did decrease in this period, but still remain the highest in the country. In 2006, accident benefits claims were $331, and rose to $588 per insured vehicle in 2009. This dropped down to $313 per vehicle in 2013 after the reforms.
Following the 2014 Cunningham Report, many anticipated that further changes were coming to Ontario, and with the introduction of the new budget, these changes are being realized. The final report stated,
Many stakeholders were ambivalent about where the [Dispute Resolution System] DRS should reside. The Ontario auto insurance system has undergone several major reforms over the past 23 years. Whether the DRS remained at [Financial Services Commission of Ontario] FSCO, moved to a public sector tribunal or moved entirely to the private sector did not seem as important as ensuring that the new tribunal is staffed with adjudicators with knowledge and expertise on the current and earlier schemes. Adherence to prescribed timelines and accountability were also identified as important irrespective of where the system might reside.
Cunningham’s interim report suggested that the Statutory Accident Benefits Schedule (SABS) be moved from FSCO to a tribunal model similar to the Workplace Safety and Insurance Appeal Tribunal (WSIAT). The final report instead suggested incorporating SABS into an existing adjudicative tribunal administered by the Ministry of the Attorney General (MAG). The expert ministry would retain the responsibility of developing policy, while enhancing efficiency and access to justice by utilizing existing experience and expertise.
The new budget implements this recommendation by moving the automobile insurance dispute resolution system to the Licence Appeal Tribunal, which will start to receive applications from April 1, 2016. Changes to medical and rehabilitation benefits and attendant care services, and reducing the standard deductible for comprehensive care, are all intended to ensure that savings are passed on.
Rather than repeat the situation observed in 2010, the province will now mandate that these savings are passed on to the consumers by reducing the maximum interest rate on monthly premiums from 3% to 1.3%, and prohibit any premium increases for minor at-fault collisions where there are no repeated injuries. The province will also require that all insurance companies provide a discount to consumers who use winter tires.
What is more concerning to the personal injury bar are amendments to the Insurance Act regulations to update the definition of catastrophic impairment. These changes also emerge from the 2010 reforms, with a commitment by the province to consult with the medical community. The Superintendent’s Report in 2011 concluded after thorough consultation,
The Panel recommended not only changes to the definition of catastrophic impairment, but also changes to the existing structure around catastrophic impairment claims (e.g., the introduction of a new “interim” catastrophic impairment status). Implementing these recommendations would require regulation changes not only to the catastrophic impairment definition but also to numerous other provisions governing the process for determination and handling of catastrophic impairment claims.
The 2010 reforms modified the definition of catastrophic impairment to include the amputation of an arm or leg, instead of two limbs as required before. The creation of an interim impairment status, or adopting the American Spinal Injury Association (ASIA) scale, may create more reliable and consistent results, but it may have the inadvertent result of overlooking the subjective experience of the claimant as previously evaluated by the AMA Guides or excluding seriously injured drivers from the catastrophic definition.
These changes to accident benefits will likely impact licensed paralegals far more significantly in Ontario than it will lawyers, as prior to 2010 this was an important area of practice. With these coming changes and the shift to the Licence Appeal Tribunal it’s unlikely that paralegals will continue to service this area extensively. This could lead to higher unrepresented rates before the tribunal where these benefits are not handled by a law firm already processing an at-fault tort claim.
However, personal injury law firms are also expressing concern about the changes proposed in the new budget. The changes to medical and rehabilitation benefits and attendant care services reduce the maximum amount for catastrophic claims from $1 million for each of these to $1 million combined. The exclusion of seriously injured drivers from catastrophic care means there are less benefits these people are entitled to. The changes also reduce the standard duration for medical and rehabilitation benefits for non-catastrophic claims for most claimants down to 5 years.
During a news conference at Queen’s Park this week several stakeholders gathered to oppose the proposed changes,
Peter Athanasopoulos, of Spinal Cord Injury of Ontario, said the changes will “rob those who need the greatest support at the most difficult time of their lives.”
Finance Minister Charles Sousa said Wednesday this province is the only one to have “catastrophic” insurance — a claim the lawyers for the Personal Injury Alliance dismiss, since other provinces don’t have the same complicated insurance system we have.
The reduced benefits are typically used for additional health care required following a motor vehicle injury, including physiotherapy and nursing services. Although these changes may potentially require auto insurers to pay less for this care, and theoretically could be passed down to consumers in the form of lower premiums, there is also another hidden danger that has not been discussed by the media or the various stakeholders.
The automobile insurance reforms were initiated largely out of an interest to combat fraud and abuse in the system by drivers. While this is an admirable goals, the concerns about fraud go both ways and include where insurers wrongfully deny claimants funds that they need, or unnecessarily delay before paying a driver out.
Where drivers do not get the medical attention they need, their recovery can be delayed or even result in their medical situation getting worse. This disability, whether it be long or short-term, has its own burdens on society, including tangible financial costs to employers, family members, and our other social services. Individuals who do not get proper medical care when they need it are likely to seek this care from the publicly-funded system, at a time where Federal health transfer funding is being reduced by $36 billion. Our provincial health system is already strained and does not need to shoulder more of this burden.
By shifting the responsibility of motor vehicle collision injuries from insurers to the public there may in fact be some short-term savings to the public in cost in the form of lower premiums. But the larger costs of absorbing this care in our society at large simply does not justify pursuing this goal single-handedly. All of the studies examining reform of auto insurance have failed to properly explore these impacts. Legal representation ensures that claims that do have merit are properly compensated, instead of abandoned by meritorious claimants who are repeatedly denied by insurers.
Auto insurance premiums in Ontario should come down for consumers, but fraud is not the obstacle in preventing them from doing so. Profits in the past five years have skyrocketed for insurance companies in light of a system which already strongly favours them. These changes will likely entrench their power even further, and that cannot be a good thing for consumers, no how low their premiums may be.
Every week we present the summary of a decision handed down by a Québec court provided to us by SOQUIJ and considered to be of interest to our readers throughout Canada. SOQUIJ is attached to the Québec Department of Justice and collects, analyzes, enriches, and disseminates legal information in Québec.
PÉNAL (DROIT) : Les nouvelles dispositions de la Partie XX.1 (art. 672.1 à 672.95) du Code criminel prévoyant la possibilité de déclarer une personne jugée non responsable pour cause de troubles mentaux «accusé à haut risque» ne s’appliquent pas rétrospectivement.
Intitulé : R. c. C.R., 2015 QCCQ 2299
Juridiction : Cour du Québec, Chambre criminelle et pénale (C.Q.), Montréal, 500-01-105636-143
Décision de : Juge Thierry Nadon
Date : 26 février 2015
PÉNAL (DROIT) — responsabilité pénale — non-responsabilité criminelle en raison de troubles mentaux — déclaration — accusé à haut risque — interprétation de l’article 672.64 C.Cr. — modification législative — Partie XX.1 du Code criminel — atteinte à un droit substantiel — non-rétroactivité de la loi nouvelle.
PÉNAL (DROIT) — procédure pénale — procédure fédérale — déclaration — accusé à haut risque — interprétation de l’article 672.64 C.Cr. — non-responsabilité criminelle en raison de troubles mentaux — modification législative — Partie XX.1 du Code criminel — atteinte à un droit substantiel — non-rétroactivité de la loi nouvelle.
INTERPRÉTATION DES LOIS — non-rétroactivité de la loi nouvelle — modification législative — Partie XX.1 du Code criminel — déclaration — accusé à haut risque.
Demande de déclaration d’«accusé à haut risque» en vertu de l’article 672.64 du Code criminel (C.Cr.). Rejetée.
Le 2 mai 2014, l’accusé a commis des gestes qui ont entraîné la mort de deux personnes. Le 17 septembre suivant, le tribunal l’a déclaré non responsable en raison de troubles mentaux et a rendu une décision prévoyant sa détention en vertu de l’article 672.54 c) C.Cr. La poursuite demande qu’il soit déclaré «accusé à haut risque». Cette déclaration n’existait pas lors de la commission des gestes, d’où la nécessité de déterminer si les nouvelles dispositions de la Partie XX.1 (art. 672.1 à 672.95) s’appliquent à l’accusé. Citant R. c. Johnson (C.S. Can., 2003-09-26), 2003 CSC 46, SOQUIJ AZ-50193946, J.E. 2003-1825,  2 R.C.S. 357, la poursuite soutient que, à l’instar de celles visant les délinquants dangereux, les nouvelles dispositions voient à assurer la sécurité du public et s’appliquent à la situation de l’accusé. La défense affirme que la loi ne s’applique pas à la situation de ce dernier puisque le régime d’«accusé à haut risque» s’apparente à une peine.
Les modifications apportées au Code criminel en vertu de la Loi sur la réforme de la non-responsabilité criminelle sont entrées en vigueur le 11 juillet 2014. Le nouveau mécanisme mis en place à la Partie XX.1 du code prévoit désormais la possibilité de déclarer une personne jugée non responsable pour cause de troubles mentaux «accusé à haut risque». Parallèlement à la création de la déclaration d’«accusé à haut risque», une multitude de modifications corollaires ont été apportées à la Partie XX.1. Cela dit, l’accusé a été déclaré non responsable et, à ce titre, il ne peut être puni et ne peut se voir imposer une peine. L’argument voulant que l’ancienne loi s’applique à l’accusé parce qu’une telle déclaration d’«accusé à haut risque» est une peine est rejeté. D’autre part, l’argument de la poursuite fondé sur Johnson ne tient pas non plus. Le régime d’«accusé à haut risque» n’est pas visé par l’article 11 i) de la Charte canadienne des droits et libertés. Par ailleurs, la non-rétroactivité des lois est un principe fondamental auquel peut déroger le législateur. Il existe d’ailleurs une présomption de non-rétrospectivité de la loi. Or, en l’espèce, contrairement à R. c. Clarke (C.S. Can., 2014-04-11), 2014 CSC 28, SOQUIJ AZ-51063417, 2014EXP-1199, J.E. 2014-660,  1 R.C.S. 612, la loi est silencieuse; il n’y a pas d’intention claire du législateur qu’elle s’applique rétrospectivement. Quant à savoir si les modifications en question touchent un droit substantiel, de façon à empêcher leur application rétrospective, une déclaration d’«accusé à haut risque» entraîne de nombreuses, graves et substantielles conséquences pour l’accusé. En outre, celui-ci doit être détenu à l’hôpital et la Commission d’examen n’a pas le pouvoir d’accorder une absolution. Il n’a pas le droit de sortir de l’hôpital sauf pour ses besoins de traitement et il ne peut le faire sans escorte. La déclaration a aussi une incidence sur les délais de révision par la commission d’examen. Enfin, une nouvelle procédure exige que l’accusé déclaré à haut risque fasse révoquer sa désignation par un juge de la Cour supérieure. Il est vrai que ces modifications à la loi visent la protection du public. Cependant, les conséquences ne s’apparentent pas à une ordonnance qui relève des modalités d’une peine ni ne mènent à des pénalités de type administratif; elles ont le potentiel de priver un individu de sa liberté. Or, compte tenu de l’importance accordée à la liberté et des enseignements de la Cour suprême dans Winko c. Colombie-Britannique (Forensic Psychiatric Institute), (C.S. Can., 1999-06-17), SOQUIJ AZ-50066125, J.E. 99-1277,  2 R.C.S. 625, ayant déterminé que la détention était le dernier recours pour les accusés déclarés non responsables, combinés à l’absence de disposition prévoyant l’application rétrospective, il y a lieu de conclure que la règle générale doit être suivie. Par conséquent, les nouvelles dispositions de la loi ne s’appliquent pas rétrospectivement à la situation de l’accusé.
Le texte intégral de la décision est disponible ici