These 7 legal hacks are providing greater access to justice – Technical.ly

<CONTENT /> v.5 - Sun, 05/17/2015 - 08:56

These 7 legal hacks are providing greater access to justice – Technical.ly http://technical.ly/2015/05/12/7-legal-hacks-access-to-justice/

Categories: Teknoids Blogs

Summaries Sunday: Supreme Advocacy

slaw - Sun, 05/17/2015 - 06:00

On one Sunday each month we bring you a summary from Supreme Advocacy LLP of recent decisions at the Supreme Court of Canada. Supreme Advocacy LLP offers a weekly electronic newsletter, Supreme Advocacy Letter, to which you may subscribe.

Summary of all appeals and leaves to appeal granted (so you know what the S.C.C. will soon be dealing with) (Apr. 9 – May 13, 2015 inclusive).

Appeals

Criminal Law: Mandatory Minimums
R. v. Nur (R. v. Charles),2015 SCC 15 (35678)(35684)
Mandatory minimum sentences imposed by s. 95(2) (a) violate Charter s. 12.  Most cases do not constitute cruel and unusual punishment, but some reasonably foreseeable cases caught by s. 95(1) they may do so. Not saved under s. 1 of the Charter, so s. 95(2) (a) is unconstitutional as presently structured. Judges not prevented from imposing exemplary sentences emphasizing deterrence and denunciation in appropriate circumstances.

Charter: Freedom of Religion
Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16 (35496)
Recitation of prayer is in breach of state’s duty of neutrality and also interfered in a discriminatory manner with freedom of conscience and religion.

Civil Procedure: Mareva Injunctions; Contempt
Carey v. Laiken, 2015 SCC 17 (35597)
Civil contempt has three elements to be established beyond a reasonable doubt: order alleged to have been breached “must state clearly and unequivocally what should and should not be done”; party alleged to have breached the order must have had actual knowledge; party allegedly in breach must have intentionally done the act that the order prohibits or intentionally failed to do the act the order compels.

Securities: Standard for Class Actions in Québec
Theratechnologies inc. v. 121851 Canada inc., 2015 SCC 18 (35550)
The “reasonable possibility” of success required under s. 225.4 sets out a different and higher standard than the general threshold for the authorization of a class action under art. 1003 of the C.C.P.

Language Rights/Education: School Equivalency
Association des parents de l’école Rose-des-vents v. British Columbia (Education), 2015 SCC 21 (35619)
In comparing equivalence (between minority and majority language schools), quality of instruction and facilities may both be strong indicators. Ultimately, focus of the assessment is substantive equivalence of educational experience.

Civil Procedure: Expert Evidence; Auditors
White Burgess Langille Inman v. Abbott and Haliburton, 2015 SCC 23 (35492)
Expert witnesses have a special duty to provide fair, objective and non-partisan assistance, and those unable or unwilling to comply (with this duty) are not qualified. Judges must still take concerns re independence and impartiality into account in weighing evidence at the gatekeeping stage. Relevance, necessity, reliability and absence of bias can helpfully be seen as part of a sliding scale where a basic level must first be achieved in order to meet the admissibility threshold and thereafter continue to play a role in weighing the overall competing considerations in admitting evidence.

Charter/Criminal Law/Civil Damages: Wrongful Convictions
Henry v. British Columbia (Attorney General), 2015 SCC 24 (35745)
Charter damages can be claimed where the Crown, in breach of constitutional obligations, causes harm (to the accused) by intentionally withholding information when it knows, or would reasonably be expected to know, that the information is material and failure to disclose will likely impinge on the ability to make full answer and defence. Proof of malice is not required.

Oral Judgments

Insurance: SABS Priorities
Zurich Insurance Co. v. Chubb Insurance Co. of Canada, 2014 ONCA 400 (36002) Judgment rendered April 17, 2015
The Court: “We are of the view that the appeal should be allowed with costs for the reasons of Juriansz J.A.”

Pharmaceuticals: Amending Pleadings
Sanofi-Aventis v. Apotex Inc., 2014 FCA 66 (35886) Judgment rendered April 20, 2015
The Chief Justice: “We are all of the view to dismiss the appeal substantially for the reasons of the majority of the Court of Appeal. The appeal is dismissed with costs.

Extradition
Canada (Attorney General) v. Barnaby, 2013 QCCA 1305 (35548) Judgment rendered April 23, 2015
The Chief Justice: “We are all of the view that the appeal should be allowed. The appeal is allowed and the decision of the Minister of Justice is reinstated with reasons to follow.”

Extradition
Caplin v. Canada (Minister of Justice), 2013 QCCA 1305 (35527) Judgment rendered April 23, 2015
The Chief Justice: “We are all of the view that the appeal should be dismissed. The appeal is dismissed with reasons to follow.”

Constitutional Law
Québec (Attorney General) v. Canada (Attorney General), 2014 QCCA 2365 (36231) Judgment rendered April 24, 2015
Wagner J: “We are all of the view that the appeal should be dismissed, essentially for the reasons given by the Québec Court of Appeal. The appellants have not persuaded us that the Court of Appeal erred in interpreting s. 98 of the Constitution Act, 1867. The arguments based on Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21, [2014] 1 S.C.R. 433, do not stand up to analysis. As the Court of Appeal mentioned in paras. 26-36 of its opinion, this appeal concerns different constitutional and statutory provisions, and the reasoning and conclusions from that reference do not apply to it. For these reasons, the appeal is dismissed.”

Leaves to Appeal Granted

Civil Procedure/Class Actions: Jurisdiction
Trillium Motor World Ltd. v. General Motors of Canada Limited2014 ONCA 497 (36087)
Do the Ontario courts have jurisdiction here.

 Agriculture Law in Québec: Income Stabilization
Financière agricole du Québec v. Ferme Vi-ber inc., 2014 QCCA 1886 (36205)
Is this Farm Income Stabilization Insurance Program valid.

Agriculture Law in Québec: Income Stabilization
Lafortune v. Financière agricole du Québec, 2014 QCCA 1891 (36210)
Similar summary to that immediately above.

Civil Procedure/Charter: Fracking; Motions to Strike
Ernst v. Alberta (Energy Resources Conservation Board), 2014 ABCA 285 (36167)
What gets struck out, and what gets left in, this environmental claim.

Corporations: Oppression Remedy
Mennillo v. Intramodal inc., 2014 QCCA 1515 (36124)
Is this a valid case for an oppression remedy.

Criminal Law: DNA Swabs
R. v. Saeed, 2014 ABCA 238 (36328)
When can DNA swabs be done without a warrant.

Criminal Law: Mandatory Minimums; Sentencing
R. v. Lloyd
, 2014 BCCA 224 (35982)
Is the mandatory minimum in s. 5(3) (a)(i)(D) of the Controlled Drugs and Substances Act constitutionally valid.

Categories: Teknoids Blogs

Summaries Sunday: SOQUIJ

slaw - Sun, 05/17/2015 - 06:00

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) : Reconnu coupable de meurtre au premier degré, l’appelant subira un nouveau procès, les directives du juge au jury ayant été considérées comme insuffisantes tant sur le plan de la fiabilité de l’aveu de l’appelant, issu d’une opération de type Monsieur Big, que sur celui de son effet préjudiciable.

Intitulé : Perreault c. R., 2015 QCCA 694
Juridiction : Cour d’appel (C.A.), Québec, 200-10-002629-116
Décision de : Juges France Thibault, Dominique Bélanger et Claude C. Gagnon
Date : 27 avril 2015

PÉNAL (DROIT) — preuve pénale — recevabilité de la preuve — aveu — technique d’enquête policière — opération de type Monsieur Big — présomption d’irrecevabilité — démarche établie dans R. c. Hart (C.S. Can., 2014-07-31), 2014 CSC 52, SOQUIJ AZ-51096323, 2014EXP-2407, J.E. 2014-1373, [2014] 2 R.C.S. 544 — fiabilité — force probante — effet préjudiciable — meurtre au premier degré.

PÉNAL (DROIT) — procédure pénale — procédure fédérale — procès devant jury — directives du juge au jury — suffisance — aveu — technique d’enquête policière — opération de type Monsieur Big — présomption d’irrecevabilité — démarche établie dans R. c. Hart (C.S. Can., 2014-07-31), 2014 CSC 52, SOQUIJ AZ-51096323, 2014EXP-2407, J.E. 2014-1373, [2014] 2 R.C.S. 544 — tenue d’un nouveau procès — meurtre au premier degré.

PÉNAL (DROIT) — infraction — infractions contre la personne — meurtre — meurtre au premier degré — aveu — fiabilité — procès devant jury — directives du juge au jury — suffisance — tenue d’un nouveau procès.

Appel d’une déclaration de culpabilité. Accueilli; la tenue d’un nouveau procès est ordonnée.

À l’issue d’un procès tenu devant jury, l’appelant a été reconnu coupable de meurtre au premier degré. Cette affaire posait la question de la recevabilité en preuve de l’aveu fait par l’appelant à la suite d’une opération policière de type Monsieur Big. La Cour a rejeté l’appel, retenant que plusieurs éléments de la preuve assuraient suffisamment la fiabilité de l’aveu. Depuis, la Cour suprême a modifié l’état du droit dans R. c. Hart (C.S. Can., 2014-07-31), 2014 CSC 52, SOQUIJ AZ-51096323, 2014EXP-2407, J.E. 2014-1373, [2014] 2 R.C.S. 544. Dorénavant, un tel aveu est présumé irrecevable. Cette présomption peut être réfutée si la poursuite établit, par prépondérance des probabilités, que sa valeur probante l’emporte sur son effet préjudiciable.

Décision
Mme la juge Thibault: La valeur probante de l’aveu de l’appelant l’emporte sur les effets préjudiciables découlant de la preuve des scénarios et de l’aveu. D’une part, les circonstances de celui-ci démontrent que l’appelant a été traité avec civilité par le patron au cours de l’entrevue. Le ton utilisé a été cordial. De plus, le contexte global ne permet pas de conclure que le patron lui a arraché un aveu. D’autre part, le contenu de l’aveu lui-même est cohérent ainsi que détaillé et il est corroboré par de nombreux éléments qui en établissent la fiabilité. Ainsi, l’aveu pouvait être reçu en preuve. Cependant, à la lumière de R. c. Mack (C.S. Can., 2014-09-26), 2014 CSC 58, SOQUIJ AZ-51110547, 2014EXP-2940, J.E. 2014-1685, [2014] 3 R.C.S. 3, les directives données au jury étaient insuffisantes tant sur le plan de la fiabilité de l’aveu que sur celui de son effet préjudiciable, compte tenu notamment du contexte dans lequel il a été fait. En outre, le juge a indirectement encouragé le jury à tenir un raisonnement qui augmente l’effet préjudiciable de l’aveu. En l’espèce, la preuve préjudiciable découlant des divers scénarios n’aurait dû être admise que pour expliquer le contexte dans lequel l’aveu avait été fait. Le juge devait dire au jury que la preuve ne devait servir qu’à cela. Par ailleurs, c’est à tort que la poursuite soutient que la compétence de la Cour se limite à l’évaluation de la recevabilité de l’aveu. Les arrêts Hart et Mack sont intimement liés. Le premier expose les règles de recevabilité de la preuve de l’aveu découlant d’une opération de type Monsieur Big et le second décrit le contenu des directives qui permettent au jury de trancher la question de la fiabilité ultime de l’aveu et d’être conscient de son effet préjudiciable. Ainsi, si l’aveu est recevable en preuve conformément au premier, le jury doit être instruit correctement conformément au second. En l’espèce, compte tenu des lacunes des directives, il y a lieu d’ordonner la tenue d’un nouveau procès.

Le texte intégral de la décision est disponible ici

 

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Forbes Now: Penn State College Of Engineering Network Disabled Following Two “Incredibly Serious” Cyber Attacks

<CONTENT /> v.5 - Sat, 05/16/2015 - 06:37

Forbes Now: Penn State College Of Engineering Network Disabled Following Two “Incredibly Serious” Cyber Attacks. http://google.com/newsstand/s/CBIwkJ3-8hI

Categories: Teknoids Blogs

Dan and Jane tackle Business Cards

3 Geeks and a Law Blog - Fri, 05/15/2015 - 13:37
Dan and Jane return after a very long hiatus.  Inspired by Marlene's terrific post and the impassioned discussion that it began amongst friends.


Jane: Dan!  I haven't seen you forever.  How have you been?!

Dan: I'm sorry.  Do I know you?

Jane: It's me, Jane.  We used to do 3 Geeks Point/Counter-point posts a couple of years ago?  You were the blowhard gasbag that was wrong about absolutely everything!

Dan: Oh! And you were the ignorant fool who incessantly contradicted me!  Yes, I remember now.  How have you been?

Jane: I'm well, I'm well.  Got promoted since we last talked.

Dan: Well, that makes sense, you do work in a law firm, right?

(Both laugh knowingly.)

Jane: I'm now the Chief Director of Innovative Solutions and Catering.  You know how things are, the firm is consolidating roles. I think I've got a new card in here somewhere.  Let me see...

Dan:  Oh, don't bother. I don't use business cards. I'll look you up on LinkedIn.

Jane: No, no, no. It doesn't work that way! This is a time honored tradition.  I give you a card. You give me a card. A bond is formed and we are connected.

Dan: That's stupid. Then what do you do with all of the cards you collect?

Jane: I send LinkedIn invites to each of the people I meet and then throw away the card.

Dan: I thought you were one of those eco-terrorists, hell bent on saving the planet one tree at a time.

Jane: My cards are made of sustainable bamboo pulp, thank you very much!

Dan: I bet that costs a fortune.

Jane: It's not cheap, but some things are worth paying more for.

Dan: At my suggestion, we did away with business cards entirely last year.  No one gets them.  We save about $800 per person per year.

Jane: But what does your firm lose in the process?

Dan: A lot of cards in the landfill?

Jane: No, you moron, in terms of good will and business relationships?

Dan: Uh...nothing?

Jane: Look, when I give you a card, I am symbolically giving you something of myself. I am quite literally trusting you with my personal identification. I am saying this is who I am and I want to share it with you. And then, you reciprocate. That creates a bond, a momentary relationship that cannot be ignored, whereas a LinkedIn invite actually has an ignore button.

Dan:  It does? Why would they do that?  The point of LinkedIn is to have as many contacts as possible. I am currently in second place in my group.

Jane: You are why they have an ignore button.

Dan: So if I take your stupid card and send you a LinkedIn invite, will you accept?

Jane: Are you asking because you want to cement our bond?

Dan: No, I'm just three contacts behind the guy in first place.

Jane: Then no.
Categories: Teknoids Blogs

Access to Justice and Drafting Family Law Legislation as a Complete Code

slaw - Fri, 05/15/2015 - 08:58

A fog of uncertainty and conflicting case authority continues to beset British Columbia’s Family Law Act. The confusion is understandable, given that barely two years have elapsed since the act came fully into force and that the Court of Appeal has yet to pronounce upon the key areas of controversy, but nonetheless highlights critical access to justice issues that went unobserved and unnoticed under the previous legislative regime which thirty years’ of case authority had fully illuminated.

One of these key areas concerns the status of gifts received by spouses and whether such gifts are divisible family property or are excluded from sharing. (Please indulge me in a very brief discussion of this issue, it illustrates the point I’m trying to make nicely and I’ll get to the access to justice problem in a moment.) Under s. 85(1)(b.1) of the act, “gifts to a spouse from a third party” are excluded from the pool of family property that is divided between spouses. However, controversy has arisen as to whether this seemly simple statement captures all gifts to a spouse such that the common law presumption of advancement no longer applies.

In Remmem v Remmem, Mr. Justice Butler reasoned that the presumption no longer applies in British Columbia because the Family Law Act is “intended to be a complete code so that there is no need to examine the intention of the parties.” Moreover, if the presumption did apply, the presumption would: require that unmarried spouses be treated differently than married spouses, as the presumption only operates between married spouses; and, undermine the “apparent simplicity and certainty of the property division scheme.”

On the other hand, Mr. Justice Masuhara, writing in Wells v Campbell, observed that the act fails to explicitly extinguish the presumption of advancement or otherwise alter the law on perfected inter vivos gifts, and applied the presumption. A similar result was found by Mr. Justice Walker in V.J.F. v S.K.W., who further noted the unfortunate provisions of s. 104(2) of the act,

“The rights under [the part of the act dealing with the division of property] are in addition to and not in substitution for rights under equity or any other law,”

and likewise applied the presumption.

These different lines of authority reflect more than a mere judicial contretemps; they reflect two of the fundamental barriers to accessible justice created by our legislation on domestic relations.

Firstly, nothing in the Family Law Act tells the uninformed reader that she must look anywhere other than the act to understand her entitlement to share in the property accumulating during her relationship. Nothing in the act hints at the existence of the presumption of advancement, never mind the presumptions of gift and resulting trust, or the doctrine of unjust enrichment and its equitable remedies. How would someone leaving a relationship ever come to the conclusion that she needed to look anywhere other than the legislation on the division of family property to figure out her and her spouse’s entitlements? What would make her even suspect that there might be other rules to consider than those set out in the act?

Secondly, by injecting the uncodified principles of the common law into the division of family property, the certainty created by the Family Law Act – such as it is – is substantially undermined. Legislative ambiguity has a number of negative effects in family law matters: it makes the results of disputes indeterminate and potentially unknowable; it broadens the range of likely outcomes; in broadening the range of outcomes, it unfetters spouses’ hopes and expectations as to the end result; and, in unfettering spouses’ expectations, it exacerbates conflict.

I have written elsewhere about the need for legislation on domestic relations to be clearly written and comprehensible to the average reader. I have also written about how legislation on domestic relations that fails to restrict the range of likely outcomes encourages a single-serving approach to justice that, in serving the individual well, creates uncertainty and a muddled body of case law for everyone else. I’ve also written about the how the chances of settlement improve when individuals’ expectations as to outcome lie within the range of likely results and how the chances of settlement correspondingly diminish when litigants have unrealistically high expectations, and will say no more on the matter.

In my view, Mr. Justice Butler’s approach to the Family Law Act, although tragically undermined by the saving clause at s. 104(2), is much to be preferred in the context of family law disputes. If I had my druthers, the legislation on domestic relations would indeed be a complete code, to both enhance access to family justice and dampen conflict by constraining parties’ expectations.

It seems to me that there are at least three principles that should be applied to the design and drafting of legislation on family law subjects if access to justice is a goal worth pursuing:

  1. The legislation on domestic relations should be written as clearly and concisely as possible. The average person, possessed of average intellect and average literacy, ought not be required to retain counsel to read and understand the legislation applicable to her circumstances. Family justice is inaccessible when the governing legislation is incomprehensible.
  1. The legislation on domestic relations should be exhaustive of the subject matter it purports to address. It is not unreasonable for an individual to expect that reading the legislation on the division of family property would provide all of the information relevant to the division of family property. Family justice is inaccessible when critical sources of law exist parallel to and unacknowledged by the governing legislation.
  1. The legislation on domestic relations should provide certainty as to the results of proceedings commenced under that legislation. People reading the legislation should be able to understand how the legislation applies to their circumstances and predict the likely outcome of proceedings under that legislation. Family justice is inaccessible when the result of the application of the governing legislation is indeterminate.

Much of the present efforts toward justice reform is focused on improving public legal education, redesigning justice processes and integrating social services within justice processes. These efforts necessarily contemplate revision of the rules of court, but there are more fundamental rules that must also be considered. Reform of the legislation on domestic relations must not be overlooked as we work to improve the accessibility of family justice.

Categories: Teknoids Blogs

The Friday Fillip: Misstep

slaw - Fri, 05/15/2015 - 08:05

 

For the next while the Friday Fillip will be a chapter in a serialized crime novel, interrupted occasionally by a reference you might like to follow up. Both this chapter of the book and the whole story up to this point can be had as PDF files. You may also subscribe to have chapters delivered to you by email.

 

MEASURING LIFE
 
Chapter 11
Misstep

Louisa Cathcart chose to pace behind her desk as she instructed Rangel, who found herself wincing at each shaky step the woman took. “Cerebral palsy is not a disease.” Cathcart spoke aggressively from a turning point in her pacing.

“Yes,” said Rangel. “I understand.” Cathcart glared at her and Rangel found herself back in the principal’s office in grade ten. She could feel herself bridling. She had never been a good student — she thought “victim” — of militant teaching, but you didn’t last long in the courts if you weren’t prepared to accept all manner of roughness from the bench. Think “judge,” she told herself, and she cleared her face of all expression.

“It is a collection of conditions with a collection of causes. And if that sounds vague, it’s because it is. There are some commonalities. The conditions all have a neurological basis. And they mostly affect muscular coordination. Movement. The neurological condition is caused by an injury to the developing brain, whether in utero, perinatal, or in the first few years after birth.” Cathcart stopped her pacing and leaned on the back of her desk chair. “With me so far?”

Rangel permitted herself a small but firm nod. She could see Cathcart’s expression soften slightly. Obviously the woman was speaking out of a lifetime of difficulty and, likely, disrespect or, worse, pity. Rangel deliberately relaxed her posture. Cathcart pulled out her desk chair and sat. She took her arm out of the crutch and hooked the device over the edge of the desk, where it rocked slightly back and forth.

“Now it gets blurry again,” Cathcart said, with less of a lecturing tone. “Because the injury is to the brain, it can manifest itself in an almost unlimited number of ways. Of course, some fetal or early brain damage results in deficits that affect functions other than motor control, and so they can get classified differently. Not as cerebral palsy. But when it affects the ability to control muscles, we label it CP.

“We classify it by the number of limbs involved — monoplegia, one limb, typically an arm, though as you see it can be one leg; triplegia, if three limbs are involved; quadriplegia, and so forth. And then there’s the additional classification by the nature of the movement disorder. I, for example, have spastic CP, involving what’s called ‘co-contraction,’ where opposing sets of muscles are activated together, blocking fluid movement and causing, well, pain, weakness, and tremors. And there are other sorts of neurological interferences. Chorea is one that most people think of when they think of palsy, those sudden uncontrolled jerky movements.

“These dysfunctions — chorea, athetosis, ataxia — may be combined. They may affect gross motor functions, such as walking, or fine motor functions such as those involved in speech.” Here she stopped and took a deep breath. “You know,” she said in an almost confiding tone of voice, “it’s bad enough to confront society with a mobility dysfunction — and I mean bad, really bad — but if your speech is halting, slurred, or otherwise inarticulate, people take you for an idiot.” She looked to one side and thought for a moment. “Thank god for Stephen Hawking,” she said, almost to herself. “At least some people now understand that within a compromised body there can be a brilliant mind.”

Briskly, she turned to Rangel. “Your missing man,” she said, “what do you know of the degree of his impairment?”

“Nothing,” said Rangel. And she added, “As yet. I know he had difficulty using at least one of his hands, but from what his aunt has said, I think there was more. She seemed to feel he needed care, intermittently at least. And I gather his intelligence might have been affected as well. Is that possible?”

Cathcart said, “A lot of children with CP have learning disabilities. So much of learning is . . . physical, a bodily function. It’s possible he might have a developmental disability, depending on how much attention he received as a child and how thoughtful that attention was. You’re from Backton? Rural schooling hasn’t always been as effective as it might be or as tolerant of difference.”

Rangel sat up straight. “Do you think,” she said hesitantly, “that the fact of his having cerebral palsy might help me locate him in some way? Assuming he is still alive, of course.”

Cathcart said, “CP doesn’t directly affect life expectancy, so if he has received appropriate assistance there’s no reason from that source to imagine he’s dead. How old did you say he was?”

“He’d be thirty.”

“CP’s not a progressive disease. That is, the neurological damage doesn’t progress. But muscles, the skeletal system, even internal organs can become damaged over time because of the nature of the original impairment.” She looked down at her right leg. “Occasionally it’s necessary to resort to surgery to . . . interfere with the malfunctioning muscles. Sever a tendon. Even cut a nerve at the root. It’s a trade off, of course. How much loss of function are you prepared to accept in return for relief from pain or some other . . . devilment.” She looked up at Rangel again. “But that’s not going to help you find this man. Medical records, as I’m sure you’re well aware, are strictly private. And even if you were able to search through them, you wouldn’t be able to differentiate your man from hundreds, thousands of others who have had surgical intervention.”

Rangel sighed. “Yes, of course. You’re right. I suppose I had imagined that there might be support groups or associations of . . .”

“Fellow sufferers?”

Rangel nodded. “And that I might ask them if they knew of Jared Willoughby’s whereabouts. A long shot in every respect. But I thought it worth trying.”

Cathcart shook her head. “There are groups, charities, societies that support people with various disabilities, that attempt to change policies and attitudes and funding priorities. But they’re nearly all organized around functional limitations broadly understood. Sadly there are lots of reasons why someone may have difficulty walking or talking. Cerebral palsy is only one of those. There are CP groups of parents concerned to ensure that affected children are given the best opportunities possible. But you won’t find your thirty-year-old there.” Cathcart gripped her crutch and got to her feet. “I’m sorry, Ms. . . .”

“Rangel”

“Rangel, but I can’t see how I can help you. And if I may say so, it seems to me you need to learn more about your missing man’s condition before you try to go down any of the avenues you’re considering.”

“You’re quite right, of course,” said Rangel, offering her left hand this time. Cathcart shook it briefly. “Thank you for taking the time to talk to me.” She smiled. “And for taking the trouble to teach me.”
 

 

RANGEL SAT IN HER ELECTRIC blue truck. Under the fluorescent lighting of the garage the colour lost any charm it might otherwise have had, striking Rangel as cold and unforgiving. Without thought, she pulled the Sanders’ appeal material out of her briefcase and opened the red folder.

The details were spare, mostly broad allegations in the courtesy letter she’d been sent. The E and O people had managed to cobble together a bit more detail from some preliminary communication with Sanders’ lawyers. Rangel forced herself to read it all carefully in the harsh light, to read it as a lawyer would and not as an alarmed client.

Through all the blah-blah-blah, one thing caught her eye. It seemed that Sanders was pinning some of his hopes, at least, on her having mishandled the matter of MAC addresses.

She cast her mind back. MAC addresses. Something ‘access control,’ she recalled. ‘Media,’ that was it. ‘Media access control.’ This made no sense. There had been no problem, no issue, with the technical side of Sanders’ case: child pornography images and emails were found on his computer; her expert agreed with the Crown’s tech data that this was material he’d placed there. Sanders of course denied it, but there was no percentage in going that route. Her whole effort had been on other aspects of the case.

She squared up the pages and put them back in the red folder, which went back into her briefcase. A moment later she’d taken the folder out again and was shuffling through the pages once more, not seeing what was on them, hoping perhaps that the words would be magically effaced, that at some imminent stroke this would all come to nothing.

MAC addresses.

Wally would know.

But it couldn’t matter. If it had been important, material, it would have been raised all those many months ago when her trial preparation was in progress. She would have flagged it. Wally would have flagged it if she’d somehow missed it.

It was nonsense. It had to be. Technical bullshit to make the old appellate judges nervous.

She turned the key and sat there as the engine rumbled on.

A note on your approaching disabilities. Old age is no place for sissies.” Bette Davis

Few statements are everywhere and always true. One of these is that we are all getting older. Indeed, we are getting older than ever before. As this chart of StatCan data from a number of years ago shows, we’re headed to the point where a quarter of us will be over 65.

One consequence will be that ever more of us will have to come to grips with the infirmities that often accompany old age, and this in turn will mean that as a society we’re going to have to pay even more attention to the ways in which we can mitigate disability. Even now there are occasional attempts to improve the functioning and design of assistive devices. Take, for example, this speculative design of a walker that seeks to provide a stylish and practical tool for those who have mobility problems:

Then there are those proposed products that the able among us might never have imagined were necessary, such as a device to help a person eat a bowl of soup or a vegetable peeler that can be operated with one hand or a device for the handsfree clipping of toenails. All of these and more are described in the report of a British Columbia student design exposition, a (PDF) file that makes for enlightening reading: these students have learned and thought and worked at problems we ourselves might prefer to ignore — until they fall on us, so to speak.

 

© Simon Fodden

Categories: Teknoids Blogs

Three Microsoft Outlook Quick Tricks

The Lawyerist - Fri, 05/15/2015 - 06:12

As useful as it is to learn new techniques for increasing your productivity like using tasks and categories to organize your matter workload or make delegating easier, sometimes it’s the little things — features you might not even think to look for — that can make otherwise mundane tasks much easier.((Unless otherwise noted below, all instructions and screenshots are for Microsoft Office 2010 for Windows.))

Implement these three quick features to make using Outlook more effective.

Built-in Date Calculator

Most law practices, especially litigation, have numerous deadlines. And if you are using Microsoft Outlook’s task or calendar features, you may not be aware that the date fields can actually calculate a deadline for you.

For example, say you have just gotten some discovery in today, so you want to create a task reminding you to serve responses within the appropriate time (we will use thirty days from today as an example). Here are the steps:

  1. Start a task window.
  2. Go to the date field.
  3. Type “today+30 days” in the field.

Once you do that and hit the enter key, the date calculates automatically.

You are not limited to using days as a calculation unit. You can also say “two weeks,” “one month,” etc.1

Redirecting Email Replies

Ever sent out an email to a group but dreaded the avalanche of responses you get? Not many people realize that it’s possible to change the reply-to address in Outlook e-mail.

In this example, let’s assume you are sending out an e-mail to everyone in the Young Lawyers section of your local bar association. However, you want your assistant to receive and tally the responses. On the Options tab of the New Message window, click the Direct Replies To button:

On the Options tab of the New Message window, click the Direct Replies To button.

In the middle of the Properties dialog box, under Delivery options, click the Select Names button.

At this point, you will be taken to your Address Book and can substitute your assistant’s name for your own in the “To…” field.

Click OK to save the change, then click OK again to exit the Properties dialog.

Organizing Conversations

By default, Microsoft Outlook organizes your email inbox chronologically, showing the most recent email at the top of the list. In some ways, that is useful. But if you have been involved in a long, drawn-out e-mail conversation including several correspondents, you have probably wished for a way to view your inbox as conversational threads.

The good news is Microsoft Outlook 2010 has introduced a Conversation view that will group e-mails together based on the Subject line. The Conversation view is available on the View tab.

Message threading can be tweaked to your preference with the Conversation settings drop-down, and conversations themselves can be expanded or collapsed by clicking the arrow to the left of the conversation header.

You can, of course, toggle this setting on and off as necessary.

Little Things Can Add Up

Accumulating a bag of minor tricks like these can make Microsoft Outlook much more user-friendly. While these are not “mission critical” features, they are the sort of “nice-to-haves” users would not even think to look for but still appreciate knowing about.

  1. This does not take into account holidays or special calculation rules in various courts. Still, this is a great trick for at least ensuring you get a heads-up before a deadline. 

Three Microsoft Outlook Quick Tricks was originally published on Lawyerist.

Categories: Teknoids Blogs

The Power of Invoking

slaw - Fri, 05/15/2015 - 06:00

I just came back from Uganda and Kenya, two countries fighting two wars: one with the odds against ‘getting to Denmark’ (to borrow a Fukuyama phrase), and the other with terrorism. I left Uganda as prosecutor Joan Kagezi, who was leading the prosecution of suspected Al Shabab terrorists, was shot dead. The murder was claimed by Al Shabab. I left Kenya at the end of the day that saw the murder of almost 150 students at the Garissa University by that same Al Shabab. On the one hand both states are dealing with a very acute and direct threat against their citizens and the legitimacy of government if it is not dealt with (which is probably one of the things the terrorist groups would like to see). At another level there is something much bigger going on: both countries are developing at a quick pace, requiring all manner of governance and culture changes. Kenya has one of the fastest growing economies of Africa. With this comes a desire that the fruits of that development are shared more evenly. Certain groups want more of a say, which upsets others who don’t want to loose some of their voice. It brings resistance because for some a way of life is under threat when they have to have a social security number and a bank account. Both countries have fresh memories of horrific violence and chaos. In short, as both countries develop, they face a lot of conflict that needs managing. What I saw in both countries is the importance of invoking.

Over tea, Kenya’s chief justice Willy Mutunga told me about his aim to anchor irrevocable change when his terms ends in two years. He wants to see strong institutions that rule, instead of capricious people. The 2010 constitution of Kenya is, on the whole, a very strong and progressive document. It anchors such institutions, divides power and has a lot of legitimacy. But it is only a piece of paper. It needs a few decades of being invoked because only then will habits change. We saw a good example of that recently. As part of its strategy against terrorism, the Kenya government put what many called a draconian security law before parliament last year. Amidst a stormy session of Parliament, which included throwing things at the Speaker, the law was adopted. After that however, the Constitution was invoked before the courts by a number of civil society groups. Objections were raised against the adoption process itself and the substance of certain provisions. Proponents of the law argued that the courts did not have jurisdiction and that no constitutional provisions had been breached. The courts concluded that they had jurisdiction and in a recent judgement in February, a constitutional panel ruled that some provisions where indeed unconstitutional. In Uganda, I discussed the anti-gay law that has caused so much controversy last year over a drink with the recently retired chief justice Benjamin Odoki. He too, referred to institutions and the constitution: we have a solid judiciary and a constitution with a clear anti-discrimination clause that can be invoked by citizens, he said. Although he did not say it, I read in his remark a sigh: perhaps donors can rely a little more on such processes and have more patience to let them take their course before reacting and withdrawing aid.

In the midst of all this I had diner with old friends. They live in the only house in Nairobi that is not surrounded by a two-meter high wall with razor wire on it and gate with big iron doors guarded by an armed askari. Over the course of many years we have talked about their lack of wall. Walls contribute, my friend explained to me, to the very same thing they are supposed to protect against: they create an ‘us’ and ‘them’. They isolate you from the community of which you are part. You don’t talk anymore. You can’t freely invoke. In a walled world, if your neighbour annoys you, you have three options. Firstly, you can knock on the iron gate and hope he opens and is willing to talk to you in a neutral space about your annoyance. But he may not open. Secondly, you can wait, and hope to catch him ‘by chance’ as he drives out of the iron gate. But he may choose to stay in his blinded 4×4 and leave you standing there. Or, you can scale the walls, blow up the gate, and make it clear in that way that you are annoyed about something.

Good principles to invoke, space to invoke them in, and effective procedures through which that invoking can take place are critical for healthy societies. That is what I clearly saw in Kenya and Uganda.

Categories: Teknoids Blogs

Want to Make Your Course ‘Gameful’? A Michigan Professor’s Tool Could Help

The Chronicle Wired Campus - Fri, 05/15/2015 - 03:56

What if the classroom were more like a video game?

Barry J. Fishman, a professor of information and education at the University of Michigan at Ann Arbor, would like to help you find out. Mr. Fishman has borrowed elements of gaming to develop GradeCraft, a learning-management system that lets instructors organize their courses in a “gameful” way.

The system lets students choose their own path through a course, selecting the assignments that interest and challenge them. At its heart is a tool, called the “grade predictor,” that helps to “manage some of the chaos” of such a personalized system. The grade predictor also helps students figure out what they need to do to reach the classroom goals they set for themselves.

GradeCraft also aims to give students the ability to fail without detrimental consequences. There are many assignments to choose from, so any students who do poorly on one can find plenty of other tasks to redeem themselves. Instructors, meanwhile, can allow students to revise their work. Mr. Fishman’s assessment system treats unsuccessful assignments not as failures but as learning experiences that pull students closer to mastery.

Today’s students are often made to feel that they can’t afford to make mistakes, Mr. Fishman says. In video games, by contrast, risks don’t come with serious consequences: Maybe you just end up repeating a level. “The idea that, if you played a game and when your character died that was it, that game couldn’t be played anymore, that would not be a very good-selling game,” he says.

When the educational uses of video games became a hot topic several years ago, Mr. Fishman developed a course on the subject. But he didn’t adopt elements of gaming in his own teaching — at least not right away.

“One of my undergrads came up to me and said, ‘You know, Professor, your ideas about games as models for learning environments are really interesting, but I’m curious, why don’t you teach your class following those ideas?’” Mr. Fishman says. “And I thought, Well, that’s a really excellent question.”

When he began to let students decide which assignments to complete and when to complete them, he realized it was much harder for both him and his students to keep track of a course that didn’t use standard methods of organization and assessment. The complications prompted him to create a system to help professors organize their courses, which led to GradeCraft. The professor worked closely with Caitlin Holman, a doctoral student at Michigan, to develop the tool. (It was Ms. Holman who came up with the idea for the grade-predictor feature.)

Mr. Fishman doesn’t define what he’s doing as gamification. In his opinion, that buzzword refers only to superficial elements of games, like points and leaderboards. He prefers to talk about “gameful design,” which he describes as applying the positive attributes of gaming systems — like establishing clear goals and giving players multiple routes to success — to the classroom.

This academic year, GradeCraft was used by about 2,000 students in 19 courses at Michigan, Mr. Fishman says. He hopes the system’s use at the university will grow to about 20,000 students; eventually he plans to expand GradeCraft’s reach beyond his own institution.

Most reviews of the tool by students have been positive. GradeCraft can be scary at first, though. The students who are most uneasy with the new system are often high achievers who have to find a new way to play and win, Mr. Fishman says, but once they understand how the system works, they find it more engaging.

Mr. Fishman acknowledges that the GradeCraft model creates more work for professors: There are more assessment events, and they happen at different times for different people. Grading happens, he says, as a “slow burn” rather than in weeklong chunks around midterms and finals. Despite the added work, Mr. Fishman says, nearly all of the instructors who experimented with the system this year want to use it again.

Throughout its lifespan, the project has had supporters at the University of Michigan: Mr. Fishman’s own departments, the Learning Analytics Task Force, and the Office of Digital Education & Innovation. Next, the project will receive support from the university’s Third Century Initiative, by way of a $1.88-million grant.

Categories: Teknoids Blogs

Thomson-Reuters Launches Social Network for Some Reason

The Lawyerist - Thu, 05/14/2015 - 19:36

Lisa Solomon:

I rate Legal Community’s chances of success at slim to none. If its focus on the legal vertical weren’t enough to doom it, its sub-focus on only its own customers is.

Thomson-Reuters Launches Social Network for Some Reason was originally published on Lawyerist.

Categories: Teknoids Blogs

Library of Parliament Adds Digitized Journals From 1867 Onwards to Its Historical Resources Database

slaw - Thu, 05/14/2015 - 17:00

In 2013, the Library of Parliament, in collaboration with Canadiana.org, launched a new Canadian Historical Parliamentary Resources digital portal.

The portal initially offered free public access to digital versions of the debates of the Parliament of Canada in both official languages, starting with the first session of Parliament in 1867 until debate coverage on the parliamentary website parl.gc.ca begins (in the mid-1990s).

The portal has now added access to the Journals of the Senate and of the House of Commons, again going back to 1867. The Senate and House of Commons Journals are the notes and records kept by the Clerks and other Table Officers during a sitting. They are the official record of Senate and House decisions and other transactions such as petitions presented, documents tabled, etc.

Canadiana.org is a not-for-profit, charitable organization made up of public libraries, archives, research institutions, and other organizations committed to digitizing, preserving, and providing access to Canada’s documentary heritage.

[Source: @LoPinformation]

Categories: Teknoids Blogs

My Twitter Digest for 05/13/2015

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Categories: Teknoids Blogs

Be Careful What You Reveal About Clients on Your Website

The Lawyerist - Thu, 05/14/2015 - 13:41

From Motherboard:

Back in January, ACLU Principal Technologist Christopher Soghoian—a privacy researcher and activist who worked at the FTC between 2009 and 2010—noticed a line in one of the attorney bios on the website of the law firm Perkins Coie.

“Represented cloud computing provider in Federal Trade Commission investigation under Section 5 of the FTC Act regarding security practices for mobile access to cloud computing service,” the bio said. “Investigation closed.”

Seems innocuous enough, right? But Soghoian knew Perkins Coie represented Dropbox and did the math.

Tech reporters might want to call Dropbox and ask them if they've been investigated by the FTC. http://t.co/RBrkMR36cd

— Christopher Soghoian (@csoghoian) January 29, 2015

It turned out to be Box, not Dropbox, but I’ll bet neither company was happy with Perkins Coie for letting that slip. And it probably runs afoul of Rule 1.6.

There’s a lesson here for lawyers. It only takes a couple of pieces of information for a clever person to draw some accurate conclusions. Be very careful about the information you share about your clients in public places like your website. Even if you think it’s not enough information for someone to put a name to your client, you might be surprised. And if you are, you might wind up talking to an ethics investigator.

Be Careful What You Reveal About Clients on Your Website was originally published on Lawyerist.

Categories: Teknoids Blogs

It’s Not Poverty That Makes Lawyers Happy, It’s Purpose

The Lawyerist - Thu, 05/14/2015 - 09:09

This part of the New York Times article is what is making headlines:

Researchers who surveyed 6,200 lawyers about their jobs and health found that the factors most frequently associated with success in the legal field, such as high income or a partner-track job at a prestigious firm, had almost zero correlation with happiness and well-being.

But this is the important bit:

However, lawyers in public-service jobs who made the least money, like public defenders or Legal Aid attorneys, were most likely to report being happy.

Lawyers in public-service jobs also drank less alcohol than their higher-income peers. And, despite the large gap in affluence, the two groups reported about equal overall satisfaction with their lives.

It’s not the salary that matters. Struggling to keep the lights on as a solo practitioner isn’t going to turn you into Happy McHapperson. On the other hand, “prestige” doesn’t do much for you, either.

If you want to be happy, build a practice doing work you find meaningful and don’t worry so much about your income statement.

It’s Not Poverty That Makes Lawyers Happy, It’s Purpose was originally published on Lawyerist.

Categories: Teknoids Blogs

Thursday Thinkpiece: Webber on Evolution in Constitutional Law

slaw - Thu, 05/14/2015 - 08:00

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.

The Constitution of Canada: A Contextual Analysis

by Jeremy Webber © 2015 Hart Publishing. Reprinted with permission.

Author’s note: “This excerpt comes from the very end of the book: pages 262 to 265. One of the book’s central themes is that any constitutional order is a work in progress, constantly being created and recreated by its participants and that to understand the operation of the order one has to understand the multiple claims made upon it and the contesting visions projected onto it. A constitution is not a definitive product, fully elaborated, internally coherent, done and dusted. And indeed in a complex democratic society such as Canada’s, one in which its citizens are understood to be primary agents in its development, it shouldn’t be. This has important implications for constitutional reform and constitutional interpretation in Canada. This excerpt draws that theme to a conclusion.”

In 2009, the Government of British Columbia and the Haida people entered into the Kunst’aa guu–Kunst’aayah Reconciliation Protocol, as ‘an incremental step in the process of the
reconciliation of the Haida and Crown title’ and as a framework ‘to guide joint decision-making regarding land and natural resource management on Haida Gwaii [formerly the Queen Charlotte Islands]’. The protocol was implemented in the Haida Gwaii Reconciliation Act (2010).(1) The Preamble to this provincial statute is remarkable. It includes, in one of its recitals:

WHEREAS the Kunst’aa guu–Kunst’aayah Reconciliation Protocol provides that the Haida Nation and British Columbia hold differing views with regard to sovereignty, title, ownership and jurisdiction over Haida Gwaii, under the Kunst’aa guu–Kunst’aayah Reconciliation Protocol the Haida Nation and British Columbia will operate under their respective authorities and jurisdictions;

It then goes on to enact the special land-management structures agreed in the protocol. The protocol itself is still more remarkable. It begins with the following statement: ‘The Parties hold differing views with regard to sovereignty, title, ownership and jurisdiction over Haida Gwaii, as set out below’. Two parallel columns follow. The one on the left states:

The Haida Nation asserts that: Haida Gwaii is Haida lands, including the waters and resources, subject to the rights, sovereignty, ownership, jurisdiction and collective Title of the Haida Nation who will manage Haida Gwaii in accordance with its laws, policies, customs and traditions.

The one on the right states:

British Columbia asserts that:

Haida Gwaii is Crown land, subject to certain private rights or interests, and subject to the sovereignty of her Majesty the Queen and the legislative jurisdiction of the Parliament of Canada and the Legislature of the Province of British Columbia.

Here we have, in the statute, the legislature and, in the protocol, the government of British Columbia, conceding that the parties hold different views on the most fundamental questions, expressly noting their disagreements, saying that each will implement the agreement under its own institutions’ authority, and then proceeding to act upon the agreement made.

And why not? This example shows that the issues constitutional lawyers often take to be fundamental—to be the inescapable premises of all political action—may be held in suspension, each party maintaining its own position and yet collaborating nevertheless. Arguably, that has been the pattern in Canadian political life generally, given the significantly different perspectives Quebecers have had on the role and legitimacy of their federal and provincial governments, in comparison, for example, to that of Ontarians. It might be called agonistic constitutionalism, for it acknowledges that parties often do disagree over fundamentals—indeed, may push very hard to have their view of the world accepted—and yet find a way to collaborate nevertheless. The principles remain important. The parties are deeply committed to them; certainly the Haida Nation and the government of British Columbia are. But the parties place the maintenance of the relationship ahead of agreement on the fundamental structure of sovereignty.

Once one realizes the possibility of an agonistic constitutionalism, one begins to see it everywhere. The centuries-long debate over the ultimate location of sovereignty in the British constitution, a history that Canada has also inherited, is another striking example. Indeed, continued debate over the most fundamental principles is the normal condition of human communities, where we disagree over so much, and yet nevertheless find a way to sustain our lives in common. It is a mistake to think that countries are founded on agreements that should be written into the constitution and enforced. Their foundation is generally more ambiguous than that, the parties finding that they are living together and that they have good reason to continue to live together, so they then begin to fashion the terms on which they might do so. Those terms are always partial and provisional, furnishing at their best the means of carrying on a conversation rather than decreeing what the content of that conversation must be.

Indeed, imposing that content prematurely might prevent the conversation from even beginning. One of the great developments of the last 30 years in Canada has been the attempt to find a mode of engagement between Aboriginal peoples and the Canadian state that holds the possibility, someday, of justifying Canada to Aboriginal peoples, so that the relationship is something other than fundamentally colonial. For that to occur, Canada has to draw upon languages of justification that have currency within Aboriginal traditions of legality and authority. The search for cross-cultural legitimation requires that one engages simultaneously with both Aboriginal and non-Aboriginal stems of legitimacy—with Aboriginal and non-Aboriginal law—to work out a way of living together. What is the Preamble to the Haida Gwaii Reconciliation Act but an agreement to initiate that search? If, in contrast, one began by imposing the foundational premises, one would render genuine collaboration impossible. One can draw a direct analogy to the Secession Reference. In that case, the Court might have decided that a Canadian majority trumps a Quebec majority, but it would then merely have communicated that Quebecers were held within Canada by force.

Thus far, in this chapter, we have concentrated on the special challenges of sustaining a deeply diverse political community, but the lessons can be generalized. Citizens of any society disagree significantly about fundamental principles, indeed perennially debate what those principles are and how they should be put into operation. The most important dimensions of any constitution therefore deal with how decisions are made, by whom, and the mechanisms by which deliberation is sustained. Of course, if the deliberation is to mean anything for people’s daily lives, there have to be points of closure, where decisions to adopt a particular way forward can be made. But those decisions will always be provisional, the best one can achieve right now, liable to being superseded by the decisions of tomorrow. Otherwise one is shackling the citizens of tomorrow to the necessarily limited understandings of today. A good constitution therefore provides mechanisms for sustaining the conversation, for enabling citizens to determine their rulers, for testing the assertions of those in power, for building the stock of dependable information on which decisions are made, for coming to decisions, for ensuring that those decisions are faithfully and consistently put into effect, for attending to the impact of decisions on individual circumstances so that one can correct especially harsh consequences, and for allowing for those decisions to be revisited in the future. Those mechanisms are the core of the constitutional lawyer’s métier. We have seen many examples of their elaboration over the course of this book. They matter much more in the long run than any declaration of substantive values, for of course the latter too always need to be interpreted and applied.

A constitution can do good work in constructing democratic deliberation and sustaining the contributions of its citizens. Certain aspects of that structure may even be worth entrenching (made subject to special requirements for amendment) precisely so that the channels of participation are insulated from manipulation by those in power today. Indeed, that may be one of the conditions for sustaining breadth of participation, for it ensures that those in a minority have some reasonable terrain on which to work towards winning the argument tomorrow. But one should never fall into the error of believing that constitutions can be the bedrock of the political order. Even in their central provisions, they too are subject to interpretation; they too are subject to reconsideration, reinterpretation and reform; they too are constantly subject to evolution and elaboration. A constitutional order is a matter of a community governing itself, ideally through an array of well-considered and well coordinated institutions, but nevertheless governed through institutions that are sustained and given life by its members.

________________________________________________

(1) Kunst’aa guu–Kunst’aayah Reconciliation Protocol between the Haida Nation and Her Majesty the Queen in right of the Province of British Columbia (14 December 2009), available at www.llbc.leg.bc.ca/public/pubdocs/bcdocs2010/462194/haida_reconciliation_protocol.pdf; Haida Gwaii Reconciliation Act, SBC 2010, c 17.

Categories: Teknoids Blogs

Filing Suit Amid Suspension Isn’t Wilful Resignation

slaw - Thu, 05/14/2015 - 08:00

When the New Brunswick Legal Aid Services Commission decided unilaterally to place its executive director David Potter on indefinite paid suspension, the employee challenged the decision in court. The commission took the position that Potter’s legal challenge meant he had resigned, and cut off his pay and benefits. The case went to the Supreme Court of Canada and in Potter v. New Brunswick Legal Aid Services Commission, the Supreme Court concluded that Potter was constructively dismissed and did not voluntary resign his position. The central issue was whether and in what circumstances a suspension with pay of a non-union employee constitutes a constructive dismissal.

Facts of the case

Potter was appointed executive director of the Legal Aid Services Commission in New Brunswick with a seven-year term. However, in the first half of the term, the work relationship deteriorated. As a result, in the spring of 2009, the commission’s board of directors and Potter began negotiating a buyout of Potter’s employment contract.

While the matter was being resolved, in October 2009, Potter took a one-month sick leave on the advice of his doctor. This medical leave was extended until January 4, 2010, and then to January 18.

On January 5, the commission unilaterally decided, without informing Potter, that if a buyout agreement was not reached by January 11, it would request that the lieutenant-governor in council revoke Potter’s appointment pursuant to s. 39(4) of the Legal Aid Act, RSNB 1973 c I-13. The commission wrote a letter to the Minister of Justice recommending that Potter be terminated for cause.

On January 11, 2010, the commission’s legal counsel wrote Potter advising him not to return to work until further direction.

Subsequently, and still during Potter’s sick leave, the commission suspended Potter indefinitely with pay and delegated his powers and duties to another person. Despite his request, Potter was not provided with reasons for his suspension. In response, on March 9, 2010, Potter began a lawsuit, claiming that he was constructively dismissed.

The commission believed that since Potter began a lawsuit, he had voluntarily resigned from his position. The employer stopped his salary and benefits.

The matter went to court, and both the New Brunswick Court of Queen’s Bench and the Court of Appeal agreed with the commission, confirming the employer’s right to place Potter on an indefinite administrative suspension with pay. According to the courts, Potter repudiated his employment contract when he brought an action for constructive dismissal against the employer during his paid suspension.

Potter appealed all the way to the Supreme Court of Canada.

The Supreme Court had to decide whether and in what circumstances a non-unionized employee who is suspended with pay can claim to have been constructively dismissed.

Supreme Court of Canada decision

The Supreme Court concluded that the commission lacked the authority, whether express or implied, to suspend Potter indefinitely with pay for the reasons it gave. To that end, Potter was constructively dismissed and he was entitled to damages for wrongful dismissal.

Test to determine constructive dismissal

The Supreme Court stated that there are two branches (two types) of constructive dismissal.

The first branch of constructive dismissal requires an analysis of an employee’s contract, and typically arises when the employer unilaterally changes the employee’s compensation, duties or place of work. When this occurs, the employee must prove on a balance of probabilities that 1) the employer breached an express or implied term of the employee’s contract, and 2) the breach substantially altered an essential term of the contract.

To determine whether a breach is sufficiently serious to constitute constructive dismissal, the court has to ask whether, at the time the breach occurred, a reasonable person in the same situation as the employee would have felt that the essential terms of the employment contract were being substantially changed (a court cannot consider evidence that was neither known to the employee nor reasonably foreseeable).

The second branch does not explicitly involve a breach of the contract; rather, it arises when the employer’s conduct makes continued employment intolerable for the employee. The courts must take a retrospective approach and consider the cumulative effect of past employer actions on the employee. The test to be applied is whether, in light of all the circumstances, a reasonable person would conclude that the employer no longer intended to be bound by the terms of the contract.

This is how it works: the employee has to establish constructive dismissal, but where there is an administrative suspension, the burden shifts to the employer to show that the suspension was reasonable or justified. If the employer is not able to do so, a breach is established, and the burden shifts back to the employee to prove that the breach was a substantial alteration to an essential contract term. There need not be a formal termination for a court to find an employee was constructive dismissed, just a unilateral act by the employer to substantially change the contract of employment.

It was clear that the express terms of Potter’s contract were found in the Legal Aid Act, and in the terms and conditions of employment established by the commission pursuant to section 39(2) of the Act. However, none of those terms nor conditions, or even the Act itself, referred to suspension for administrative reasons. This meant that there was no express grant of power to put an employee on paid or unpaid suspension. Similarly, there was no implied power to suspend an employee. Given the nature of the executive director’s position and the detail in which his statutory obligations were defined in the contract, the commission had an obligation to provide Potter with work.

Since the commission could not establish that the suspension was reasonable or justified, it could not argue that it was acting pursuant to an implied term of the contract. This meant that the suspension constituted a unilateral act. Not only was Potter not given any reason for the suspension, but also, there was a lack of good faith because the commission was not honest, reasonable, candid and forthright. The Court stated, “Failing to give an employee any reason whatsoever for his suspension is not being forthright”. Without knowing the employer’s reasons for indefinitely suspending him, Potter reasonably believed that the suspension amounted to a substantial change to his contract.

As a result, since both parts of the test could be met, Potter was constructively dismissed and therefore entitled to damages for wrongful dismissal.

The trial judge’s provisional assessment of those damages should be adopted, with one exception regarding Potter’s pension benefits. The pension benefits were not to be deducted from the damages awarded to him because those benefits were not intended to compensate Potter in the event of his being wrongfully dismissed.

The Supreme Court allowed Potter’s appeal, and reversed the decision of the New Brunswick Court of Appeal. Potter was entitled to damages for wrongful dismissal as calculated by the trial judge with the one exception.

What can we take from this case?

This case is very important because the Supreme Court of Canada, the highest court of the land, has clarified again the test for constructive dismissal of an employee. In doing so, the Court specifically confirmed that, just because an employee launches a lawsuit after being suspended, does not mean that the employee has repudiated the contract or resigned from employment.

In addition, this case confirms that to suspend an employee with or without pay, an employer must have the authority to do so in legislation or in the employment contract. In the absence of such term or right, the suspension must be justified and reasonable, even if the employee continues to be paid. That means the employer must act in good faith and clearly communicate its legitimate business reasons to the employee.

As is evident from this case, where an employee’s suspension is found to be unreasonable, unjustified and unauthorized, an employer will have a tough time arguing that it did not intend to breach the employment contract.

Categories: Teknoids Blogs

Bencher Election? What Bencher Election?

slaw - Thu, 05/14/2015 - 07:00

The dust has settled on another Ontario Bencher election, but it seems that most lawyers in Ontario barely noticed.

Only 34% of eligible voters exercised their franchise in the easiest, most convenient Bencher election in history; log into the website, then click on candidate names – done in 90 seconds.

Even so, 66 percent of voters thumbed their noses at the entire process – they couldn’t be bothered to vote for even one candidate.

To anyone paying attention, the message is clear:

The vast majority of Ontario lawyers don’t care who is elected as a Bencher.

And the vast majority of lawyers have been sending this same message for decades.

In 2011, 37% of eligible voters voted, causing some to rejoice that the steadily declining voter turn-out was finally ticking upward; it seemed that voter turnout had hit rock bottom in 2007 at 34.5% and was now bouncing happily upwards.

However, it seems 2011 was merely an aberration, and the steady decline in voter interest continues.

The charts at the end of this post were prepared from data found in the Law Society of Upper Canada’s 2011 Election Results and Voter Turn-out Statistics. The 2015 numbers are estimated and will be verified by LSUC in June, 2015.

Given this evidence, it’s not a stretch to conclude that the vast majority of lawyers in Ontario no longer care about self-regulation.

If they did, wouldn’t they vote for those who regulate and discipline them?

How else do you explain such consistent apathy?

But even if we’re not willing to go that far, it’s clear that the vast majority of lawyers are comfortable allowing someone other than themselves to select Benchers.

So why not just have the Attorney General appoint lawyers as Benchers?

That would instantly create the diversity that so many Benchers claim to be in favour of.

Many voters have suggested that the Bencher voting was difficult because there were too many candidates for too many positions – all the more reason to move to a smaller, appointed Convocation.

Isn’t it time that the Law Society listened to the message being sent from the majority of lawyers in this province?

 

 

 

 

 

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