Austin, Tex. — Student privacy, easier-to-use digital tools for instructors, and efforts to offer alternative credentials were some of the most-talked-about topics this week at the South by Southwest Edu conference, an offshoot of the popular South by Southwest music festival.
The event brings together a mix of participants from different parts of education — teachers, administrators, and publishers in elementary, secondary, and higher education. This year The Chronicle hosted a “special program” on “Understanding the New Landscape of Higher Ed,” about which we’ll share more details in the coming weeks.
As we look through our notebooks of other sessions at the event, here are some highlights:Student Privacy
Big data is coming to education, if it’s not here already. But the rules and norms for handling digital information generated by students are far from clear.
Some 32 national organizations unveiled a statement of “Student Data Principles” during the conference, outlining a guiding philosophy that included a commitment to collecting only the minimum amount of information needed to help students succeed. The document was created primarily with secondary education in mind, but among its supporters are some higher-education groups, including the Institute for Higher Education Policy.
Mitchell L. Stevens, an associate professor in Stanford University’s Graduate School of Education, said that a focus on privacy could be too limited and that a better approach would be to consider a broader set of issues he called “data policy.” Speaking at a separate session, he cited the increasing flows of data to which colleges have access, including from learning-management systems, student-success systems, and MOOCs.
“My colleagues in the learning sciences are just thrilled that these new waterfalls of data” will allow them new windows into pedagogy, he said. At the same time, he warned of an overreliance on predictive analytics in guiding students. “In the 20th century we called that tracking,” he said.
As schools and colleges continue to develop policies and approaches for data, Mr. Stevens said he also imagined that the rules were likely to be set not by laws or government regulations but by voluntary organizations. He said he wondered “what kinds of consortia and collective actors are we going to create” to govern this situation.New Forms of Credentials
Several sessions focused on how alternative credentials, such as digital badges and new features of social-media platforms like LinkedIn, would become an important new currency for signaling personal achievement.
Matt Sigelman, chief executive of Burning Glass, a company that analyzes job advertisements, said digital data was making it easier to see the nuances of job markets — for example, that certain skills are more valued for a marketing major looking to work in Chicago than for one seeking a job in Silicon Valley. As college students grow to understand that, they may start doing more analysis on the makeup of particular college majors — he called it “titrating” — to ensure that they include the expertise that employers actually want.
During a session on “Socializing Credential Innovation,” Matthew Pittinsky, chief executive of Parchment, noted that many employers were looking for project managers, for instance. But a credential known as PMP, or Project Management Professional, is suffering the same problems as the college degree itself: Employers don’t know what it means. So the organization administering the credential is creating more-specific versions focused on certain industries.
But Jake Schwartz, a founder of General Assembly, warned that when credentials become too “granular,” they can lose their value. “It can make it trite,” he added.
Few were predicting, however, that new certifications or badges would eliminate the value of a college degree. “Absolutely not,” said Mr. Pittinsky. At least not in the immediate future.Helping Instructors Build Learning Gadgets
Plenty of start-up companies made their pitches during the conference, and many of them offered products intended to make it easier for instructors to build their own high-tech teaching materials.
One of them, Zaption, won the start-up competition at the conference, called LaunchEdu. Zaption lets teachers make YouTube videos interactive by adding questions and annotation that overlay the video. “Instructors are using more video than ever before, but the problem is it’s a very passive learning experience,” said Chris Walsh, chief executive of Zaption, in an interview. He said his company’s product “takes video and turns it into an active learning experience.”
Of course, it’s hard for colleges to tell which new education products are effective in the classroom.
A new venture backed by University of Virginia’s Curry School of Education, USA Funds, and some UVa alumni said it planned to help foster better ways for colleges to evaluate what companies are trying to sell them. It’s called the Jefferson Education Accelerator, and while its focus includes teaching, it also goes beyond that.
The accelerator will advise colleges on how to establish their own gauges of success “before a vendor talks them into it,” said Bart Epstein, the founding chief executive. It is also building a database of academic researchers with expertise in learning science and other fields so that companies and colleges in search of an expert can use it as a resource.
Colleges “are making a lot of purchasing decisions on incomplete data,” he said.
Some studies that the accelerator may facilitate will be proprietary. And they won’t necessarily be peer-reviewed. But Mr. Epstein said the goal of the accelerator was to create a climate where research on the efficacy of new products became more the norm.
One of the many functions of legislation is to overrule different aspects of the common law, as need demands, and establish new schema in their place. Family law is no different in this regard than the law of property, torts and contract, particularly following the English Parliament’s seizure of jurisdiction in matrimonial causes from the ecclesiastical courts in 1857. With the passage of time, lovely old torts such as jactitation of marriage, criminal conversation, loss of consortium, enticement of a spouse, restitution of conjugal rights and breach of promise to marry have fallen by the wayside, banned by one provincial act or another as the law on domestic relations became increasingly organized. In place of the old common law and the arcana of bills of divorce and divorces à mensâ et thoro, the federal Divorce Act and the various provincial legislation have given us an almost complete code governing separation and its legal consequences.
However, just because a law establishes a regulatory, justiciable code doesn’t mean that it must be the courts which address disputes covered by that code. Administrative tribunals have long been used to remove different kinds of disputes from the court system for reasons of economy, practicality and social policy; consider, for example, the reasoning possibly motivating the establishment of human rights tribunals, worker’s compensation and employment insurance commissions, and landlord-tenant and utilities tribunals. Each removes a specific class of dispute from the courts’ trial jurisdiction and vests it in the hands of specialist decision-makers cloaked with the degree and type of process necessary to the dispute – a sort of governmental outsourcing of public functions. Section 96 concerns aside, it’s not difficult to imagine other sorts of legal disputes that might be diverted to a specialist tribunal. Municipal bylaw offences, employer-employee disputes, bankruptcies, non-commercial property disputes and even wills and estates matters strike me as potentially all well-suited to an administrative tribunal approach, as do family law disputes.
In this note, I propose an administrative agency that would take family law matters wholly out of the hands of the provincial courts, and largely out of the hands of the superior courts save for the requisite process of judicial review. The agency would include a decision-making tribunal, an independent commission with investigative powers and a family support services department providing families with legal information, parenting education, financial planning, counselling and other assistance.
Before continuing, I must thank Professor Alice Woolley, associate dean of the University of Calgary’s Faculty of Law, who has shared her time and knowledge with me and stimulated much of the discussion that follows.
When government creates a regulatory code, it has, in essence, three choices for the administration of that code. It could keep the matter in-house and have a government department administer the code, as it does with Old Age Security and the Canada Pension Plan. It could divest itself from responsibility for outcomes, and leave the code to be dealt with by the courts, as it does with claims arising from fraudulent preferences and offences under the Criminal Code. Or, it could establish an arm’s-length agency to deal with the matter, as it does with the Canadian Radio-television and Telecommunications Commission and human rights tribunals.
According to Colleen Flood and Jennifer Dolling, the main reasons to establish independent administrative agencies include:
“the need for greater specialization and technical subject-matter expertise to make decisions than is possible or feasible to collect and retain within central government”
“a reluctance to enmesh courts in matters not suitable to judicial review because of their specific nature or the volume of decisions that have to be made.”
Utilities commissions, like the Alberta Utilities Commission that “regulates the utilities sector, natural gas and electricity markets to protect social, economic and environmental interests of Alberta,” are excellent examples of agencies dealing with highly technical matters. The AUC, I understand, frequently requires engineers and economists, as well as lawyers, to make its decisions. Landlord-tenant tribunals, like British Columbia’s Residential Tenancy Branch, are good examples of agencies created to keep comparatively minor but common legal disputes out of the courts.
Although administrative tribunals normally have the power to conclusively address legal disputes, they are not courts of law. Rather than depleting tribunals’ toolboxes, however, it seems to me that this actually enriches them by providing a wider array of procedural options and collateral resources. Peter Cane and Leighton McDonald have written that the approach offered by administrative tribunals
“understands the law as one, but by no means the only, technique or tool for influencing human behaviour.”
As such, tribunals are free – with the right sort of enabling legislation – to develop their own policies and process, information and forms, dispute resolution methods and evidentiary requirements. The potential this offers is, particularly in the context of family law disputes, astonishing:
There are of course limitations to the nature of tribunals. First, there is the ubiquitous section 96 problem. Second, no tribunal is likely to entirely conquer the vexatious litigant who is truly determined nor those interested in using available processes and judicial reviews as tools of harassment. Third, additional steps and a concomitant amount of delay are inevitable if determinations are not enforceable on their face and must be processed through or be otherwise dealt with in court.
Despite these concerns, the flexibility and other benefits offered by an administrative approach to family law seem to me to carry the day. I also suspect that in the long run administrative tribunals are likely to be more cost effective than courts on a per-file basis. It would be interesting, and perhaps necessary, to conduct a comparison of the cost of tribunals versus the probable cost of processing the same files through the court system.
A Family Services Agency
The family law administrative agency I have in mind would be guided by the overall goal of supporting families through the process of restructuring necessitated by separation, which I’ve written about elsewhere. It would have three departments: a tribunal with decision-making authority; a commission vested with an investigative function; and, a support services provider tasked with supporting families through education, counselling and similar services. The agency would be supported by legislation that, among other things, vests sole jurisdiction in family law matters in the tribunal and limits the right to judicial review to: final contested determinations made by the tribunal; and, final determinations made by consent, where fraud, incapacity or any other ground capable of vitiating a contract is alleged.
The agency would offer families a level of process and support that is proportionate to the importance and complexity of the issues at hand. I expect that the majority of families would not require the tribunal to act in its arbitrative capacity, and could be satisfied merely with its mediation services. Many families will need no support services beyond education about the law and parenting after separation. The investigative services of the commission would likely only be required in those few situations where mobility, allegations of alienation or abuse, difficult financial or tax problems or claims of deceptive disclosure or non-disclosure are at issue. Some families, of course, will require the services of all three departments.
The Support Services Department
Families would enter the family services agency through the support services department and be assigned a guide who would work with the family throughout the process, assessing needs and service requirements, seeing that those needs are met and liaising with the commission and the tribunal.
The guide would conduct an initial brief triage to identify: any urgent problems that must be addressed as soon as possible, along with less urgent issues that will need to be addressed sooner rather than later but can nonetheless wait; the family’s presenting legal issues and any areas of agreement; and, the nature of the support services the family is likely to require. Where urgent problems exist, the guide would refer urgent problems to the tribunal and act as liaison between the family and the tribunal to set up the hearing. Otherwise, the guide would begin prioritizing services for the family.
Beyond this initial triage phase, the role of the guide would involve: acting as an interface between the family, the tribunal, the commission and support services; helping the family navigate its way through the family services agency; identifying issues appropriate for investigation by the commission; and, advocating within the agency for the support and wellbeing of the family as necessary, until a final resolution of all issues is reached.
Families, other than those who enter the agency with a settlement in mind and need no support services, would be required to attend education sessions about family law, dispute resolution and the role and function of the agency, and, where there are children, a parenting after separation course, all of which would be arranged by the family guide. Families would also be required to exchange documents, as identified by the family guide, relating to the care of children, support, property and debt.
Services would be provided beyond these obligations as the needs of each family suggest. These services could include:
The Family Services Commission
The purpose of the family services commission would be to assist the family and the tribunal in the gathering of information. I do not imagine the commission adopting the quasi-prosecutorial role taken by human rights commissions, but rather as a neutral investigator providing services as requested by the family guide and the tribunal.
The work of the commission would likely be limited to financial and psychological enquiry, and the commission would accordingly be staffed with experts in taxation; experts in pensions, real property and personal property; valuators of pensions, real property and companies; accountants; clinical counsellors; and, psychologists. On the fiscal side of things, I can imagine the commission being tasked with:
On the mental health side, I can imagine the commission being asked to:
The commission should have the powers necessary to conduct such investigations, including: the power to subpoena documents from the spouses and third parties; the right to enter upon and in properties; the power to compel the physical and psychological examination of a person; and, the power to conduct examinations for discovery.
The Family Services Tribunal
The family services tribunal would provide dispute resolution services through mediation and arbitration as the needs of each family may require. The tribunal would work hand in glove with the family guide, who would coordinate the documentation available to the family and the tribunal, liaise with the commission when investigation is required, set up hearing dates and ensure the availability of the spouses.
The tribunal’s decision-makers would be specialists in family law and in the financial, mental and emotional sequelae of separation, and include lawyers, retired judges, psychologists and financial experts. Tribunal lawyers and psychologists would be available to mediate disputes, but tribunal members acting as mediator would be unable to hear matters involving the same family as arbitrator. Arbitrations would normally be conducted by tribunal lawyers, but could be conducted by the lawyer with tribunal psychologists and financial experts as a panel when the circumstances of the family and complexity of the matters at issue warrant.
The tribunal would have rules, forms and processes created specifically for family law matters, and all printed material would be written in plain language comprehensible to a Grade Ten graduate. Forms would be composed of check-boxes and fill-in-the-blanks statements, avoiding open-ended questions to the extent possible, to minimize systemic incentives to conflict. The spouses would be referred to by their names, not as plaintiff, applicant, claimant, defendant or respondent, to humanize and personalize the process for the spouses and to minimize the potential for conflict.
Mediation would be available at the request of the spouses and the family guide, and at the direction of a tribunal member functioning as arbitrator for the family. Mediation would be evaluative and be informed by any reports or assessments prepared by the commission. Mediation could result in consent determinations on an interim or final basis, on some or all of the matters in dispute.
Arbitration hearings would presumptively be conducted on an inquisitorial basis, with the arbitrator taking the lead in questioning witnesses. The arbitrator would have the ability to subpoena witnesses and to shape the hearing process in a manner that is proportionate to the importance and complexity of the issues, which might include: limiting the number of witnesses; requiring that all or some evidence be given by affidavit; allowing hearsay; admitting unsworn evidence such as letters and emails; and, requiring that argument be provided partially or entirely in writing. Whatever approach the arbitrator takes to the hearing, the ultimate goals must be to ensure proportionality and procedural fairness.
Witnesses from the commission appearing at arbitration hearings would appear as witnesses for the arbitrator, not as the witness for a spouse. To the extent that commission staff could be construed as advocates, they would be advocates for the family as a whole and for a fair outcome that best serves the needs and interests of the family.
Arbitrators would have the power to make interim and final determinations, including determinations for the protection of property, determinations for the protection of people, interim and final determinations going by consent and variation determinations. The tribunal’s enabling legislation would:
The enabling legislation would also limit the right to judicial review to final determinations of the tribunal and to determinations made by consent where circumstances are claimed to exist that would support the vitiation of a contract.
This proposal is, I know, incomplete. The range of social, economic and mental health services offered by the support services department could be either widened significantly or narrowed. The authority of the commission must be clarified, particularly in respect of third-party persons and entities. The process used by the tribunal and the circumstances that would trigger a panel of more than one tribunal member need to be clarified. The capacity of the tribunal to make divorce orders, deal with contempt and breach of determinations and handle interjurisdictional problems must also be addressed.
As for the agency as a whole, the scope of the legal matters it deals with could expand to include child protection matters, and perhaps even youth criminal justice issues. The overall cost of the agency must be assessed against not just the present cost of family law matters to the court system, but the corollary costs of separation that are presently born by the government agencies whose services I propose bundling into the offerings of the support services department.
These are all significant issues, to be sure. However, I am deeply struck by the extraordinary potential offered by an administrative approach to the resolution of family law disputes, the most important of which in my view are: the use of specialist, highly trained decision-makers; the ability to address separation and its legal consequences in a holistic, supportive manner aimed at fostering the wellbeing of the separated family; and, the extraordinary range of procedural options available to develop a less adversarial and more accessible approach to family law.
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.
Smell the Rain
The emergency lights threw a sick yellow glare on everything. Four red fire trucks were parked in a semicircle in front of a house already very small and now reduced by a burnt-out half. The fire was out and the trucks and auxiliary pumps made loud winding down noises, like tired machines sighing, wanting you to know they’d had enough. Floods of water lingered everywhere, sallow but glinting like shiny pools of urine each time a flashing light swept by. The fire smell was atrocious.
Rangel and Mitman stood at the curb and gazed at the destruction. “It stinks,” Rangel said. It had taken them more than two hours to get here from the lodge.
“Stinks, hell, it’s criminal. Arson. Someone has to pay for this.”
In a small, calm voice, Rangel said, “I mean it smells bad. That stinging, acid smell in the back of your throat. Sort of like decay, only if you’d pushed it to the extreme.”
“They’ll have to put a guard on your house, G.R. Cameras, alarms, I can set it up. You’ll need protection.”
“It’s very dramatic looking in this light, isn’t it? Like a movie set. Look, the right half’s almost perfect, intact roof slope, unbroken window, clean clapboards. Washed by the fire hoses, I guess. Then suddenly there’s this jagged black and jaundiced mess smelling . . . mephitic. No, that’s too sulfurous. Scorched.” She lifted her hands and weighed the halves up and down in her palms. “House. No house.”
“One thing, though. All of your records are safe. Every last line and paragraph. Our machines are toast. But it’s all in the cloud, the sweet safe and dry cloud where it never rains and is lined with silver. I made sure of that. And we’ve got that fireproof safe with the backup disk. So if these fuckers thought they’d get your files this way, they lose. Big time.”
Rangel put a hand on Mitman’s arm. “Let’s go in,” she said. And for the first time she became aware of the crowd gathered in the deep black behind the lights. Everyone in Backton, it seemed, was up out of bed and here for the show. At the nape of her neck she felt — what? — the prickle of their curiosity, avidity, satisfaction, hate?
As Rangel and Mitman stepped deeper into the lit area, they were met by a firefighter, the chief, according to the announcement on his helmet. “BFD” was stencilled on his chest in large red letters. Backton shared a volunteer fire service with a number of smaller surrounding communities, and some of the volunteers lived outside Backton. Rangel had never met the chief. She looked for his name tag.
“Chief McKnight, I’m Gregoria Rangel. This is — was — my office.” McKnight knew who she was. She could see the distaste in his eyes instead of the reflection she usually got, which was: ‘tall, pale, skinny, geek.’
“Ms. Rangel,” said McKnight. He didn’t offer to shake hands. Rangel saw he was annoyed that he almost had to look up to meet her gaze. “Sorry for your loss.” He was chunky, bulked out in that ten-thousand dollar protective gear that firefighters wore now. His face was red, even in the odd cast of the lighting.
“I thought you only said that when people had died.” Alarm crossed her face. “No one’s died, have they?”
“No, the premises were empty.” He waved a heavily gloved hand behind him. “Could have spread easily, and then, who knows? Lucky we got here in time.”
“Neighbour called it in?” asked Mitman. McKnight looked at him for the first time.
“Wallace Mitman,” said Rangel. “My law clerk.”
“Anonymous call,” said McKnight, after a moment’s hesitation.
Mitman breathed out loudly. “Arson, then, for sure.”
“Hold on,” said McKnight, pushing the air with both gloves. He shook his head. “We don’t think so. There’s no smell of accelerant. And the source seems to be an electrical junction box.”
“A fault?” Rangel sounded surprised, sceptical.
McKnight turned to look at the building, then at his crew packing things up. “I’ll show you,” he said. “Be careful. The floor is still sound except for one spot which we’ve roped off. But still… ”
It didn’t feel like her office. She was removed, observant at a distance. A sorry-for-your-loss sort of distance. McKnight pointed down at a carbonized baseboard where a blackened steel junction box had been exposed. “See how the spread goes out from here? And there’s nothing at the floor at all in front, all going up and out, first with the hot wires and then —” he made an expansive gesture “— through the old lath and plaster.”
“That doesn’t make any sense,” Rangel said, speaking a thought.
McKnight puffed up his chest, but was too tired to maintain the effect for more than a moment. “A lot of these places got done up, down and dirty reno, back in the seventies when aluminum wire was being used. Some people still use it. It’s code, I guess. But you gotta know what not to do. Problem’s with the connections: aluminum on copper connectors. Differential flow. Creeps the connection. Makes a gap eventually.” He showed a gap with his hands. “You get sparking then and —” He didn’t say “boom” but his hands flew up and away from each other.
“No aluminum here,” said Rangel.
“Sorry to disagree,” said McKnight, pleased as punch. “We found melted aluminum at the source.”
Rangel shook her head. “Uh-uh. See, this was completely rewired by my brother when I bought it three years ago. He’s an electrician. He uses only copper. I’m certain. And the circuit breakers would have kicked in.”
“Looks like your brother shorted on you,” said McKnight. He gave a one-stroke laugh and started to walk away.
“You’re going to report it to the fire marshal, right?” said Mitman.
McKnight turned around. “It’s not arson. I told you. I’ve been to more fires than you’ve had — than you can imagine. I know what I’m talking about.”
Mitman said to his back, “BFD, right?”
McKnight paused, then carried on. “Go home and get some sleep,” he said.
Rangel looked thoughtful. “I’ll need you rested, Wally,” she told him. “We’ve got — you have — a lot to do tomorrow. So I think you should go home and sleep. He’s right. Even an asshole can give good advice occasionally.” Mitman closed his eyes and nodded. Then he turned and walked away.
Rangel moved slowly through the wet disaster, touching this and lifting that only to set it down again. Everything was ruined. Oh, there was insurance. That wasn’t the real concern. No, the fact of destruction, of devastation, that was the troubling matter; that something so organized and elaborated as a law office could be reduced to nothing in the flare of a moment, that was, well, an unwelcome reminder of death.
Her books. She hadn’t many in the office. Who bothered with books anymore? But she did keep a few old volumes nearby to connect her with the profession’s past and lend the meaning of continuity to what she did with her life. And now they were waterlogged victims. She had an old Martin’s Criminal Code and an even older version of Tremeear’s, one she’d found in a used books shop in the city. Criminal law was her love. It would survive, books or no books. And here was a very old Armour on Titles that someone had given her years ago. She hefted it, opened it, brought it close to her face, and smelled the strangely appealing odour of foxed and yellowed paper.The smell of old books has complex chemical bases — as does the smell of new books — both analyzed for us on Compound Interest. If the smell of old books pleases you, you might like to get hold of one (or more) of these book-scented perfumes and candles.
She should go home and sleep, though it was probably too late for that use of the night. So she proceeded methodically through the battered little dwelling, marking each loss, noting how each and every thing was at once inconsequential and utterly irreplaceable. Eventually she came to where there should have been a door to the back garden and a neighbour’s field beyond. Perhaps it was good not to have doors any longer, to have the element of fire open things out to nature’s other elements. She stepped carefully down and out of her . . . former office. And only then, when her feet were on solid ground once again, did she feel the tines of fear run through her, understanding that indeed someone wished her harm — and was prepared to bring it about.
She shuddered and moved away from the house towards the small field, surprised to see that dawn was imminent. Like an animal, she snuffed the air without thought and knew that rain was coming. A slight frisson went through her, the elation telling her that it would be a thunderstorm. She was sure of it. And no sooner had she formed the thought than the first drops fell. She lifted her face gratefully, feeling fat, luxurious splashes on her skin. And then she smelled the rain, the delicate aroma of the world’s waking to the sky’s attentions. Fear was gone for the moment and replaced by unreasonable optimism. Lightning flashed in the dawn clouds and like a child she counted to the rumble that followed.Surprisingly, the smell of rain on dry soil has a name: petrichor. This piece in Scientific American talks about it and about the odour of the ozone that often is associated with thunderstorms. I couldn’t find any candles that smelled like rain, but I did find a site that proposes a bunch of candles that would smell like stuff in everyday life — like a wet road, for example.
Suddenly there was a man in front of her. “Are you all right?” he was asking. She shuddered, cold and wet now. “You should get inside,” he said, reaching out towards her but not touching her. “You might be in shock. And besides—” a smile lit his face for her to see “—an open field is not the place to be in a thunderstorm.”
She saw him, saw that he was one of the firefighters. He had his heavy, stiff jacket in his hand, offering to put it around her shoulders. She let him do that. And she allowed him take her arm and walk her through the rain to the street in the front, thinking all the while just ‘golly’ and ‘golly,’ like the thunder countdown kid. “Is that your phone,” he asked her. “It’s a bit early to be calling someone. But it might be important. You’d better get it.”
She shook her head. The ringing stopped.
He grinned at her. “I’ll drive you home,” he said. And he helped her clamber into a red fire truck. And she let him.
© Simon Fodden
It is common now for those promoting justice reform to urge a “client-centred” or “user-centred” approach. But what does it really mean to take a “user-centred” approach? Is it enough for justice insiders to take their own understanding of the client experience into account or to invite one or more ‘users’ of the system to participate in reform discussions? Just how do we truly obtain the perspective of those using (or wanting to use) the justice system?
Once again, we can look outside our own sector for clues.
Example #1 – Business
The business world has been focusing for hundreds of years on meeting the needs of their customers for goods and services. A relatively recent innovation identified the need to focus on “customer-centricity”. The idea is that whatever the organization offers must be designed from the perspective of the customer and engage with the entire customer experience.
Colin Shaw says: “The experience you provide to your customers is a direct reflection of your organization. If your organization is ‘product-centric’ or ‘internally-focused,’ you will provide an internally-focused product or experience. If your organization is ‘customer-centric,’ you will provide a customer-centric experience.”
The key questions are: “Is the process designed for the good of the Customer or was it designed for the good of the company?” Is the process “inside out” or “outside in”? “Inside-Out orientation refers to a process that is reviewed through the eyes of the company, looking out at customers as they go through, resulting in a process that is oriented on the needs of the organization. Outside-in orientation involves walking the process as if you were a customer looking in at the organization through a Customer’s eyes, enabling a process focused on the needs of the Customer.”
Let’s face it – the current justice system was designed primarily by and for the professional users (Judges, Lawyers and court services). How can we redesign it to be “consumer-centric”?
Shaw suggests that you don’t just focus on the rational “what’s” of the system. Since 50% of a customer’s experience involves their emotions, it is not just the process but how they felt about the process that is key. As an example, the National Self-Represented Litigants Project findings document how important it is to SRL’s to be treated with dignity and respect and to be cared for as individuals, not as case numbers.
Shaw identifies five requirements to move to customer-centricity:
Telus implemented a Customer First policy in 2011. Senior leaders in all departments across Telus spend time on the front lines in the field, in retail stores, in call centres and with service technicians to really understand customer experience first-hand.
This approach is challenging in a complex system where there is no “CEO” and there are many moving parts. However, doesn’t that make it even more important to walk in the shoes of a variety of members of the public, for example, who are trying solve their legal problems? A “journey map” would be very helpful to help identify the weak points.
Example #2: Systems Change Theory
I’m enrolled in a MOOC through MIT called U.Lab – Transforming Business, Society and Self. It is led by Otto Scharmer, the guru of the ULab, a fascinating process to encourage truly innovative change in complex systems of all kinds. In the first week of the MOOC we watched a video about the Apollo 8 mission – the first manned mission to fly to the moon. All preparations and attention was on the goal of getting to the moon, the stars, the universe. However, when the astronauts in orbit began to send back pictures of the Earth, the scientists were awestruck. It was the first time anyone had seen what our home Earth looked like from space. This was an unexpected discovery of beauty and profound mystery. They called it “a grand oasis in the vastness of space”. This was the first opportunity for humans in the “human system” to see that system, from a new perspective. Otto suggests that this is how we need to view any system we seek to influence and change. The ULab approach advocates resisting the strong temptation to move immediately to solutions based on surface level observations but to take time instead to go deeper, to explore the underlying root causes and to gain understanding and empathy for the experience of human beings who participate in the system. How to do that? He recommends “empathy walks” (real conversations between people from very different parts of the system) and “learning journeys” (visits to the edges of the system that are unfamiliar). It is empathy that will open new doors of opportunity.
Closer to home, the most profound learning I gained from the CBA Envisioning Equal Justice Summit April 2013 was the poverty simulation. While it involved role-playing it gave participants a glimpse into the actual experience in the social welfare system of human beings struggling to make ends meet for their families.
Example #3 – Design Thinking
David Kelley (founder of IDEO) has worked for years on ways to bring real human experience into design (of products, services and organizations). David insists that design must be done through collaboration across disciplines AND that it is essential to have real empathy for the consumer to uncover real human needs. You figure out what people want and value in their products and services through careful observation of their experience. At IDEO, David worked closely with Apple for many years to design the Apple mouse. He watched people’s reactions when they used the products and when he saw a grimace he knew a change was needed. He recently started the Hasso Plattner Institute of Design at Stanford which focuses on “human centred design” to bring students from a wide variety of disciplines (including law) together to learn how to solve problems collaboratively.
What can we learn?
Experience in other sectors shows that these approaches will result in more effective and lasting change. Worth considering.
The Canadian Bar Association has undertaken an update of the Joint Policy Statement on Audit Inquiries (“JPS”), in collaboration with the Auditing and Assurance Standards Board. An auditor of an entity’s financial statements will often request that its lawyers confirm the reasonableness of the entity’s evaluation of claims and possible claims both by and against the entity. The JPS was developed in 1978 by the CBA and (then) CICA to provide guidance on communication protocols between the auditor, law firm and management of the entity, in order to protect solicitor-client privilege and keep an appropriate distance between the auditor and the law firm.
Although these objectives apply equally today, the JPS is in need of an update to reflect evolving circumstances in the 35 years since the it was first issued. The proposed updates reflect developments in accounting and auditing standards and the legal environment and include: express inclusion of in-house counsel in the scope of the JPS; clarification that lawyers need not consider the applicable financial reporting framework when responding to an audit inquiry; and revisions to communication protocols with the auditors to resolve concerns expressed by members of legal profession.
The CBA sought feedback from members throughout its negotiations with the AASB, and commenced a consultation period on the exposure draft at the end of 2014. We would appreciate receiving your input by April 6. CBA Council will consider the final draft for approval at its Mid-Winter Meeting in February 2016.
The keyword geek: The day I was DoSed by Google http://thekeywordgeek.blogspot.com/2015/03/the-day-i-was-dosed-by-google.html?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed:+feedsapi/BwPx+(Hacker+News+Top+20+Full+feeds+by+FeedsAPI)&m=1
Laverne Jacobs, PhD
Director of Graduate Studies
University of Windsor, Faculty of Law
it’s with great pleasure that I’m writing to announce that the Windsor Yearbook of Access to Justice has become an open access journal.
Our first open access issue (31(1)) became available last week. The move to open access was initiated by an editorial team of our colleagues over the past few years, along with Yearbook coordinator, Vidya Balachandar. The initiative was led by former Editors-in-Chief, Reem Bahdi and Myra Tawfik. Here is a link to issue 31(1): http://ojs.uwindsor.ca/ojs/leddy/index.php/WYAJ
The Yearbook’s move to open access has been prompted by a desire to remain true to its access to justice roots. WYAJ is cognizant of the power of access, including access to information, in maintaining social and legal inequalities. We recognize that making research freely available to the public supports a greater global exchange of knowledge
Our open access platform allows the public free access over the Internet. There is also a print-on-demand option for any person or institution interested in purchasing a hard copy subscription. All information may be found on the website.
In becoming an open access journal, the Yearbook will join several other peer-reviewed scholarly journals from other disciplines delivered under the Open Journal System (OJS) at the University of Windsor through in-kind support of our libraries and librarians.
As an open access journal, we hope to have even greater readership and impact.
To find out more about WYAJ, including submission guidelines, please visit our main website at www.uwindsor.ca/law/wyaj. We are always happy to receive and consider submissions from colleagues.
Laverne Jacobs, PhD
Director of Graduate Studies
University of Windsor, Faculty of Law
Editor-in-Chief, Windsor Yearbook of Access to Justice
-on behalf of the current WYAJ Editorial Board
Muharem Kianieff , Anneke Smit, Sujith Xavier, Pascale Chapdelaine & Noel Semple
Depositions are costly, time consuming, and exhausting. It can also be a complete waste of both your time and money. Before you take a deposition, make sure you really need to.Depositions for the Wrong Reasons
The decision to depose a witness is sometimes used as a lazy alternative to critically thinking about trial strategy. Here’s a familiar example: say that after concluding written discovery, you are faced with a number of witnesses who might testify at trial. The knee-jerk reaction, especially for lawyers with unlimited budgets, is to depose them all.
A deposition, however, should be a last resort.
First, you need to think about what the witness is likely to say, then ask how this testimony will impact your trial strategy. Viewed this way, some witnesses should not be deposed at all.
A whole category of witnesses, for example, might be friendly to your side and available to testify at trial. A deposition of these witnesses would only benefit your opponent, who would get a helpful preview of the witnesses’ testimony.
At the other extreme are witnesses with damaging testimony who might be unavailable for trial. A deposition risks preserving testimony that would otherwise go unheeded. You might decide not to depose these witnesses either.
Decisions about whom to depose have important consequences beyond trial strategy. You cannot get back the time you spent on an unnecessary deposition. Just as troubling, depositions are very expensive. Deposition costs include outlays for the court reporter, transcripts, room rental, travel, and more.
Clients also expect their lawyers to keep litigation costs under control. For a lawyer wishing to control costs, cutting out unnecessary depositions is an effective way of accomplishing this goal.5 Questions to Ask Yourself Before Taking a Deposition
In assessing whether a deposition is necessary, ask these questions about each witness.1. How Important is the Witness to the Case?
To make intelligent decisions about witnesses, you need to know the entire file — claims, defenses, written discovery, and case documents. You also need to think about how the evidence is likely to be presented at trial. Only then can you asses the witness’s importance. If the witness does not have anything to say that will help or hurt your case, you don’t need to depose the witness at all.2. Is the Witness Available for an Interview?
Friendly witnesses who are under your control usually aren’t good candidates for depositions. To learn what the witness has to say, use the techniques of “informal discovery” and call the witness on the phone or set up a face-to-face meeting. Assuming the witness is available for trial, this might dispense with the need for a deposition. It would be foolish to give your opposing counsel a free preview of testimony.3. Can You Use Other Types of Informal Discovery?
Informal discovery isn’t limited to friendly witnesses. Assuming there are no ethical barriers (see below), you can interview witnesses before deciding whether to take their depositions. If you decide you want to memorialize a witness’s story, consider a witness statement as an alternative to a deposition. (Keep in mind, however, that witness statements might be discoverable.)4. Will the Benefits of the Deposition Outweigh Its Cost?
Even when you cannot interview a witness, you might still learn the substance of the witness’s testimony through traditional discovery methods — interrogatories, document requests, or depositions of other witnesses.
Even when the testimony is material, you can still say no to a deposition. At the firm where I started, one of my bosses rarely took depositions. With a background in the criminal courts, where depositions are rare, he was confident he could cross-examine most witnesses at trial without a deposition.5. Are There Risks to Preserving the Witness’s Testimony?
If a witness has damaging testimony and isn’t going to be available for trial, a deposition might hurt your case. While you often can’t predict all the variables ahead of time, consider the risks before rushing into a deposition. Otherwise, you might be preserving harmful testimony that otherwise would not be available for your opponent to use at trial.Limitations of Informal Discovery
Sometimes, there is no good alternative to a deposition. A helpful witness, otherwise a candidate for informal discovery, might not be available for trial. Whole categories of witnesses might be off-limits to informal discovery — corporate employees, for example. Some lawyers decide to depose every adverse expert. (Notably, others don’t.)
Despite these limitations, always consider alternatives to depositions. If you can reduce litigation costs while improving your case, why not try it? Not only will it make you a smart litigator, but your client will thank you for it.
Featured image: “Putting coin into a piggybank” from Shutterstock.
The other Arab world. Not the masked, Kalashnikov wielding crazies the media treats us to each day. But highly educated, global citizens that are passionate about innovation in government. There are times you see very pointedly that you are being brainwashed.
The impressive three-day Government Summit that the government of the United Arab Emirates (UAE) annually organises in Dubai is a Davos style combination of large plenaries, cosy workshops, and ‘experience-it’ expositions. I was there last week. The crowd is decidedly international, but it’s refreshing to walk around in a definition of ‘international’ in which ‘Western’ is a very small minority. The programme covered many aspects of innovation in government: health, education, the environment, transport, safety and security. And a relatively small workshop on justice by me.
It is difficult not to get carried away by all the new ideas that great speakers shower over you during such an event and to rejoice about the radical change for good that is about to come. A transport revolution through Co2 neutral driverless cars. A health revolution through incredibly small and smart diagnosis machines. An almost infinite capacity to analyse data. A safety revolution through clever surveillance. The Internet of Things in which machines talk to each other to serve you better. And IBM’s Watson – almost artificial intelligence that thinks, talks, responds in an almost human way to help answer all your questions. It’s all happening now.
Can humans keep up? Sometimes I think they can. I used to have a phone, but that was centuries ago. Now I have become completely smart-deviced. I even use it to raise my children. The centuries I speak of took only about 8 years. I work with justice innovators on a daily basis. Through them I see unlocked empowerment and creativity powered by technology that is very uplifting. That too, is radical.
But when I heard the global heads of innovation of Samsung and IBM describe a world in which everything is a smart device that invisibly connects to wake you up on time, monitors your heath, makes your perfect coffee, and to telsl you whether your children’s DNA gives them an increased chance to get cancer, I also get justice worries.
We have tough times ahead. If they happen, these developments will change relations between people: some will gain power, economic gain, and social status, while others will lose it. History has never seen these things change without a fight. The development of the printing press and the spread of ideas it supported was connected to the bloody Reformation and the French Revolution. The Industrial Revolution was connected to the ability to industrialize war and to the massive exploitation of the labour.
During the long transition from a predominantly rural to an industrialized society there was a lot of writing about how to re-organize a good government and justice in the midst of all that change. New ideas saw the light of day as part of this transition: basic individual rights, the separation of powers, rule of law, voting, collective bargaining, and the idea of a state that must care for its people.
The Government Summit – inspiring and uplifting as it was – tells us about the great things that innovation and technology can bring. How it opens avenues to better government, quality control, citizen involvement, keeping better track of things, and a whole raft of apps and goods we can now get. And we get carried away, because the discussion is focussed entirely on the innovations themselves. But there is no doubt that data collection, collaboration platforms, and linking all machines will affect the relationship between government and the governed, between citizens, and between citizens and business. This will require a rethink of at least part of the current mechanisms that help people agree on shared rules and standards to guide their lives, the mechanisms to enforce those rules, and the modes of conflict resolution that go with that. In short: rule of law and the way we organize it. That discussion should become more than a little workshop during an innovation party. Where is the separation of powers if non-state entities make most of the rules and standards? What’s the principle of legality worth if behaviour is foreseen through data analytics? What if you have a dispute with IBM’s Watson? What if Watson becomes a judge? Behind these questions lie fundamental values that we cherish. And those values should be an integral part of our discourse on innovation. Not in a luddite way. But in the same constructive mode of Montesquieu and Jefferson, who sought to make sense of a world in which kings became outdated.
“You are sitting in a tavern. You look down and see a D&D homework assignment on the table…”
Hello and welcome to the D&D homework assignment.
In this assignment you’re going to learn about how role playing games depict characters and events in magical worlds using numbers. You’re going to conduct a series of exercises meant to give you a sense for how these kinds of games use numbers to make the fantasy they depict feel real for the player. Specifically, you’re going to roll a few D&D characters
Assignment: Creating a D&D Character | MAS S66: Indistinguishable From… Magic as Interface, Technology, and Tradition http://indistinguishablefrom.media.mit.edu/2015/03/11/assignment-creating-a-dd-character/
Clearly I went to the wrong college. There was plenty of D&D for sure, but we didn’t get credit for it.
Move Google Authenticator from one Android device to another – TechRepublic http://www.techrepublic.com/article/move-google-authenticator-from-one-android-device-to-another/#ftag=RSS56d97e7
Introducing “Yosemite”: the first open source modular chassis for high-powered microservers | Engineering Blog | Facebook Code https://code.facebook.com/posts/1616052405274961/introducing-yosemite-the-first-open-source-modular-chassis-for-high-powered-microservers-/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+feedsapi%2FBwPx+%28Hacker+News+Top+20+Full+feeds+by+FeedsAPI%29
Collabtive is web-based project management software.
Collabtive – Open Source Collaboration http://collabtive.o-dyn.de/
Plugins include a mobile app, Gantt charts, project templates.
It is often said law schools fail to prepare students for the actual practice of law.
Yes, law school does a good job at training you to “think like a lawyer” and spot issues, do legal research, draft legal documents, and put together a legal argument. But there are so many practical things that law school doesn’t teach you, especially a number of soft skills. This includes things like social grace, communication, language, personal habits, friendliness, optimism, and resilience.
Here are ten critical skills missing from many law school curricula.1. How to Handle Conflict
Most of the time, your client will be in a conflict with someone else. Your role is to represent the client in the conflict with competence. Most people don’t enjoy being in conflict. Conflict is uncomfortable, triggers stress responses, and can make you angry. Because of our desire to win, it often brings out the absolute worst in all of us.
Law schools should teach ways of engaging in conflict that are constructive, healthy, and maintains civil relationships with opposing counsel. This can be done by valuing emotional intelligence, tact, and grace over aggression. Law schools should teach students that they are a part of the larger legal community, and today’s opposing counsel may be tomorrow’s judge, co-counsel, co-worker, or your best referral partner. Students should never think about an interaction with a particular lawyer as a single transaction.
Law students should also learn different conflict styles and be familiar with their own conflict style. Graduates should come with a toolbox full of different ways of living with, working through, and managing conflict. It’s not enough to teach or talk about civility as an abstract concept. Students should also understand that conflict isn’t inherently bad, and can be used as an opportunity to grow and strengthen a relationship.2. How to Forgive “Resentment is like drinking poison and waiting for it to kill your enemy.” – Nelson Mandela
I used to walk around with a rolodex of every terrible thing that people said or did to me. This included classmates, bosses, co-workers, judges, opposing counsel, clients, family, and friends.
That’s a lot of baggage to carry around.
When you’re in the conflict management business, people are bound to step on your toes and piss you off. How do you let go of these feelings of anger, resentment, hostility and revenge? How do you stop these experiences from consuming you?
The answer lies with forgiveness. Forgiveness doesn’t mean you forget about what the other person did (that’s probably unwise anyway). It doesn’t mean you have to kiss and mak eup. It’s not about repairing the relationship, although, in certain situations, it can certainly involve that. And it doesn’t mean letting the other person off the hook or condoning their behavior.
The primary beneficiary of forgiveness is yourself.
Law schools can foster an environment where forgiveness is a valued skill by encouraging professors to discuss it in the classroom and give students the opportunity to practice it. To forgive each other can enhance the moral of the student body and increase social bond.3. How to Have Difficult and Uncomfortable Conversations
I could not have imagined the incredibly difficult conversations I would have with my clients over the years. There are the usual uncomfortable calls to remind a client about an unpaid invoice, quoting a fee, or telling her that you lost a Motion for Summary Judgement.
We constantly deal with incredibly delicate issues and are charged with delivering life altering news yet we don’t receive any training on how to do this. We also don’t receive any training on ways to manage our own internal challenges of being in these difficult situations.
It took me many years to figure out how to manage these difficult conversations with grace, authenticity, and compassion — key ingredients needed to make a good lawyer.4. How to be Present
As lawyers, our time is the commodity we trade for money. The more fully present we can be in each moment, the better we will be as lawyers. Luckily, being in the moment is a trainable and learnable skill.
Some law schools are, in fact, teaching contemplative lawyering skills, which includes mindfulness — learning to be in the present moment without preference or judgment.
As lawyers, we must be agile and able to pivot as information is gathered. If our mind is completely preoccupied with thoughts about the future or the past, we can’t be fully be present to process the information available to us, hindering our ability to be agile and pivot when necessary.5. How to Maintain Physical and Emotional Health
As lawyers, we have a duty to provide competent representation to a client. And to do that, we must maintain our mental, emotional, and physical health.
The key to maintaining your mental, emotional, and physical health is self-care. You must be self-aware enough to recognize and care for your mental health, which requires noticing when you are experiencing stress or anxiety. In order to care for your emotions, you must be able to recognize when you are experiencing negative emotions and find healthy ways of working through them. Maintaining your physical health requires a balance of exercise, rest, and a healthy diet.
Law schools should bring more awareness to this and start teaching law students tools for self-care. This would help many of the problems which is so prevalent in our profession — burnout, depression, alcohol and substance abuse.6. How to Be Compassionate
When I say compassionate, what I am referring to is our innate feeling of wanting to help when witnessing someone else’s suffering. What I am not referring to is sympathy, being soft, or let’s hold hands and sing Kumbaya.
In our line of work, we often witness a lot of pain. Rarely do clients come into our office to share happy news. In many ways, our relationship to our clients is very intimate. We gain inside information about our client that she wouldn’t share with anyone else. Therefore, our ability to handle the suffering of our clients without losing ourselves is a critically important skill.
Maintaining a healthy balance between our client’s difficulties and ourselves is a skill that can only come with practice. It’s important to know how to be compassionate with our client’s suffering while being compassionate towards ourselves. This is an essential part of self-care. If we can’t recognize that we’re hurting and take time to care for ourselves, we begin to deplete our mental and emotional reserve. When lawyers continue to push ourselves without refilling our reserve, he or she will experience burnout.7. How to Manage Personal Finances
Law students often graduate with $150,000 or more in student loan debt. Rarely do these students seriously think about what repaying that amount of debt looks like. When I taught a Solo Practice Management course, I was surprised at how few students could answer questions these basic questions:
As a bankruptcy attorney, I’m seeing an increased number of graduates (some law school graduates) who clearly had little or no understanding of what it will take to repay the debt. Even one-day course on personal finance would go a long way in giving students basic tools to help understand and manage their financial futures.8. How to Manage Law Firm Finances
For most lawyers, the practice of law is a business. It’s a profit driven activity, yet there is little or no emphasis on the business end of the law practice. This includes things like law firm finance, understanding overhead, hiring/managing staff, how to price your services, as well as marketing and advertising. Some basic knowledge of law firm finance would not only benefit students who are going into solo practice, but also those who go on to work in a law firm.9. How to Create and Sustain Your Own Brand
Long gone are the days where most law student graduates find a nice associate job, make partner seven years later, and retire at the same firm. Lawyers must actively market and brand themselves. They must also grow and learn to leverage their network. They must figure out their own networking style and understand what works for them. This doesn’t happen overnight. It’s a skill law students should be encouraged to hone from their first day in law school.
Law students should be familiar with social media and proper ways to use it to promote themselves. Too often, law students don’t pay enough attention to networking during law school.10. How to Collaborate With Others (Nicely)
During my first year in law school, I was doing legal research for a Research & Writing class. When I went to the library to pull the book that I needed, I was horrified to find that the pages I needed had been torn out of the book. Stories like this are all too familiar in law school. I don’t know if law school attracts students who enjoy aggressive competition, or if law school trains them to become this way, but we must equip students with more tools than one.
Law students should understand that even in adversarial situations, cooperation is often critical in moving a case forward towards a resolution. Students should also know you can zealously represent your clients without demonizing the other side. And at the end of the day, you can safely enjoy a beer with opposing counsel.
Featured image: “Image of businessman in blindfold standing on edge of mountain” from Shutterstock.
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. R. v. Armitage, 2015 ONCJ 64
 Before I get to this, I would like to make two short comments. First of all, I want to say something about the style of this decision. For those who have read some of my past judgments, the reader may notice a change. For Jesse Armitage, I have tried to say what I wanted to say in very plain language. I believe that this is very important for judges to do in every decision. However, judges often do not do a good job of this. I would describe myself as one of the worst sinners. As lawyers first and then judges, we get used to using words that are long and complicated. This only muddies the message we are trying to say. That message is very important when it comes to passing a sentence on an offender. That the message is clear is even more important in the Gladue courtroom.
 I say this because in the Gladue court at Old City Hall, accused persons who share a proud history of the first people who lived in this nation, not only have a right to be heard, but they also have a right to fully understand. Their voices are heard by the judges. And they must also know that we have heard them. I believe that the accused persons who have been in this court have had good experiences in this. This is something that they have come to appreciate. This is something they have a right to expect.
2. Malton v Attia, 2015 ABQB 135
 Here I set out the conduct I would have expected from a reasonably competent and diligent lawyer on a file of the nature of the Maltons’ file. That is the standard of conduct required to avoid liability in negligence. I also on several points state what I would have expected from a good lawyer, which is a somewhat higher standard than that of a reasonably competent lawyer. While striving to be a good lawyer is important to one’s practice, it is the standard of a reasonably competent and diligent lawyer that applies to Attia. Herein, when I refer to a reasonably competent lawyer, or simply a competent lawyer, I mean a reasonably competent and diligent lawyer.
 A litigation lawyer, in general, is responsible for advising his client about the nature of the potential litigation and about the various options for bringing the litigation to a close. If the matter cannot be resolved, that lawyer is responsible for the conduct of the litigation, on instructions from his client, through to the end of trial.
3. Freedman v. Cooper, 2015 ONSC 1373
 It seems that Ms. Freedman is of the view that she needs court approval to remove the tree because she and her agents would be committing an offence under s. 10(3) of the Forestry Act if she used the permit for the tree’s removal, which was issued by the City of Toronto. This view is based on the circumstance that under s. 10(3) of the Act, the consent of both Ms. Freedman and Mr. Cooper is apparently required for any removal of the tree.
 I disagree. I read s. 10(3) of the Forestry Act as simply not applying to the owners of the boundary tree. The owners remain liable one to another in accordance with the common law. In my opinion, s. 10(3) of the Forestry Act simply does not apply in the circumstances of this case.
The most-consulted French-language decision was Aliments Breton (Canada) inc. c. Oracle Corporation Canada inc., 2015 QCCA 336
 La juge a conclu qu’Oracle n’a pas commis de faute déterminante dans l’exécution de son mandat. Elle s’est aussi dite d’avis que l’échec du projet était plutôt dû à l’absence d’efforts de Breton. Elle a constaté son retrait unilatéral de la convention qu’elle estime précipité et injustifié. Parmi les déterminations de la juge ayant conduit à ces conclusions, Breton ne réussit pas à identifier d’erreur manifeste et déterminante susceptible d’emporter la réformation de son jugement.
 Cela suffit pour trancher le sort du pourvoi en défaveur de l’appelante, y compris sa contestation de la réclamation de l’intimée. Les autres moyens d’appel notamment ceux portant sur la question de l’évaluation des dommages sont, en conséquence, devenus théoriques.
* 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.
When the Uniform Law Conference of Canada decided, back in 1993, to address the legal effect of electronic communications, it started with the law of evidence. See 1993 Proceedings of the Uniform Law Conference of Canada, Appendix G, pages 34-35, 198 – 206. It was clear even then that more and more information intended to have legal consequences was generated, communicated and stored by electronic means. If the legal consequences were to be properly adjudicated, the information had to be capable of being put before the adjudicators.
The question was thought to be of interest both to barristers, who needed to manage, introduce and argue on the basis of this information, and to solicitors, whose clients were asking if their businesses could scan their records into a computer and destroy the paper. How the clients were going to be able to use those scanned records in disputes was a key question for the solicitors.
The first step was to commission a paper from Ken Chasse, who even then had a long record of publications on evidence and record management. His paper for the Conference in 1994 recommended that the focus of the law of evidence should shift from the individual document to the record-keeping system in which it was found. In particular, the notion of an ‘original’ document, as contemplated by the ‘best evidence’ rule, was not helpful in the electronic world, being either meaningless or irrelevant to the purpose of the rule.
The Conference set up a small working group that I chaired. The group also included a senior federal prosecutor who taught evidence law, and a lawyer who represented Canada on international delegations on the law of electronic transactions. The working group adopted Chasse’s recommendation to move to a system integrity focus, which became the core principle of the Uniform Electronic Evidence Act, ultimately approved by the Conference in 1998. The intervening period was spent working out the implications of doing so. (All of the Conference’s working papers and the Uniform Act itself are on the Conference web site.)
The Uniform Act was fairly successful, being adopted in six provinces and all the territories, as well as incorporated into the Canada Evidence Act, which makes it applicable to criminal prosecutions and federal administrative proceedings across the country.
Recently an article (published in Archivaria in 2010) was drawn to my attention that reviews the Uniform Act and finds it deeply wanting: “Electronic Records and the Law of Evidence in Canada: The Uniform Electronic Evidence Act Twelve Years Later,” by Luciana Duranti, Corinne Rogers and Anthony Sheppard of the University of British Columbia. The first two are archivists, the last a law professor. They are involved in a long-term project to review the law of evidence as it applies to digital evidence. Since the authors are still at work on the principles of the article, it may be useful to comment on them now.
Though the article is thorough and conscientious, I find it also to be wanting. It seems to me to misunderstand both the goal and the achievements of the Uniform Act and want something that the Conference did not set out to do and that may not be achievable in any event. It finds contradictions or conflicts where I still see none. At times in reading it, I found myself wondering if archivists are another profession in a parallel universe of discourse from lawyers, as I have written about engineers. The present note will touch on some of the highlights of my concerns.
The purpose of the Uniform Act
The Conference working group was aware of the risks presented by the growth of information, and thus evidence, in electronic form. It wanted to resolve some key issues before a creative counsel managed to blast holes in the current law that would cause serious problems in the courts.
The working group considered information in electronic form to be essentially documentary evidence– a point on which the authors of the article do not disagree. Such evidence is subject to three reviews before it is admitted for purposes of a legal proceeding: authentication, best evidence and hearsay. What, if anything, needed to be done to those testswhen the information was electronic? The project did not set out to revise the rules of record management or privacy or to tell people how long they should keep their records or in what form. The wish list of the authors of the article, and of the Digital Evidence project they are now engaged in, is much longer. The Conference aimed at resolving a much narrower set of issues.
As archivists, the authors find the Uniform Act’s definition of ‘electronic record’ deficient, both because of its reference to computer systems and because of its failure to distinguish between a record and a document. Despite their explanation of the difference of the latter two terms for archivists’ purposes, which I believe I understand, they do not say why the distinction may be important in law. No case has turned on it, so far as I know. Even in this note, I use the terms interchangeably, though that may not appeal to archivists.
The Conference varied its own terminology, in fact. When it adopted the Uniform Electronic Commerce Act in 1999, it used ‘electronic document’ as its key term. The main reason for the change is that ‘record’ presents challenges to translate into French. It can come out as ‘enregistrement’ or ‘inscription’, and neither really served the purpose. My guess is that translation issues caused the federal government to adopt the Uniform Electronic Evidence Act using ‘document’.
The reference to computer systems was intended to link back to language in the Criminal Code, to make the evidence rules fit with what those used to the Code would be looking for. There was no intention to limit the technology, and no such result, in my view. I am not aware of any cases where any implementation of the Uniform Act was refused because the technology did not fit its language.
The authors of the article say that the statute should provide rules on the weight given to electronic evidence. The Conference working group consciously decided that statutes never or almost never told judges how to make decisions, which is what assigningweight by statute would amount to. Once the evidence was in the door, the decision-maker would decide whether to trust it. Professor Hamish Stewart, in his 1996 paper for the Conference, described a trend in law to increasing the scope of admissibility ofevidence and an increasing reliance on the decision-makers to assign appropriate weight, but he did not support legislating this task.
Best evidence and authentication
Though the need for authentication and the best evidence rule are conceptually distinct, Canadian courts have tended not to make much of the distinction. Both tests are aimed at ensuring that documentary evidence is trustworthy.
The US Federal Rules of Evidence state expressly that authentication involves providing the basis on which the finder of fact could conclude that a document is what it purports to be. The leading Canadian textbooks agreed that this was the law here well, but there did not seem to be any Canadian cases of high authority for that rule, and it was not prescribed by statute. To make things clearer, the Uniform Act codified the rule, without changing it. (Codifying the rule does not mean, as the article seems to believe, that nothing can be said about how the rule operates.)
The best evidence rule requires that the document produced for the court be the original of the document, or some good explanation be given of why the original was not produced. The theory of this rule was clearly that it was harder to alter an original undetectably, so the content was more likely to be accurate.
The problem was that an electronic document or record either does not have a meaningful original or its copies may be completely identical, to the last bit. Thus having something that one might call the original did not add to the reliability of the information.
The working group considered recommending the abolition of the best evidence rule entirely, but was persuaded not to do so by the argument that since electronic records could be less reliable than paper ones, it was not appropriate to make it easier to get the electronic ones admitted in evidence.
In retrospect, I think that decision was wrong. The best evidence rule is meaningless for electronic records. There is no point deciding which one of completely identical and indistinguishable versions of a record is the ‘best’, for evidentiary purposes. The work – to focus on the record-keeping system – should have been done on the authentication test.
The article notes the official comment on the Uniform Act that says that the working group decided to apply its system test only once, to best evidence, rather than twice (i.e. repeating it as part of authentication). The authors say – correctly – (page 111) that the purpose of both authentication and best evidence rules are ‘interwoven to the point of being interdependent’ – but do not share my own current view that the best evidence label adds no value, only distraction.
The working group thought that for authentication, a witness would support the document, by giving the basis on which the judge could find it to be what it purported to be. But if opposing counsel – or the judge– asked ‘how do you know?’, that would bring in the principles that the rest of the Uniform Act describes.
The working group did not address its mind to the distinction between ‘real evidence’ produced by computers and documentary evidence produced from computers. The article mentions this distinction as set out by Underwood and Penner in Electronic Evidence in Canada, which has been taken up by some cases as well. A focus on the consequences of that distinction might have reinforced a preference to amend the authentication rule rather than to fuss with the obsolete best evidence rule, since authentication is needed for both real and documentary evidence, while the best evidence rule applies only to the latter.
On the other hand, it is not clear that courts that have focused on the distinction between real and other computer-generated evidence have had any difficulty in applying the version of the Uniform Act before them to the extent that it applied. Underwood and Penner warn against confusion; perhaps their warning is being duly heeded.
Hearsay is different
The third test that documentary evidence must pass to be admitted is whether it is banned as hearsay, or whether some aspect of the rules about hearsay will let it in anyway. The main ‘exception’ to the ban on hearsay in this area is the business records rule: records kept in the ordinary course of business are considered sufficiently trustworthy to be admitted even for the truth of their contents. The common-law version of this rule had a number of criteria to satisfy to achieve this status; statutory versions have tended to be much simpler.
The working group took the view, which I still believe to be the right one, that hearsay is a technology-neutral concept. A document is just as much somebody else’s knowledge, and just as much made in the ordinary course of business, whether it is on paper or in electronic form. Whether the information is on paper or in electronic form, it must be authenticated, as discussed above. Once it is authenticated as being what it purports to be, then the court can decide if it is a business record or otherwise exempt from the ban on hearsay according to the usual law.
The authors of the article want the law of evidence to set out how hearsay should work in the electronic world. This is one of the objectives of the Digital Evidence Project as well. I think this is misguided. All of the considerations of the record-management process that the authors appear to prefer for legislation on hearsay can properly be considered in authenticating the document. The hearsay analysis is a different order of question.
The Ontario Court of Justice in my view got it right inR v Mondor, 2014 OCJ 135. The court looked at s. 31.1-8 of the Canada Evidence Act on authentication of electronic records (i.e. the provisions that implement the Uniform Act federally), and held that the prosecution had complied completely. However, the evidence presented, though authentic and though satisfying the best evidence rule, was still hearsay, and without meeting the business records exemption described separately in s. 30 of the Act, the evidence was not admissible. In other words, hearsay was not an e-evidence issue but demanded a standard media-neutral hearsay analysis. Sections 31.1ff do not and are not intended to provide an exception to the hearsay rule. The decision reviews related cases and the Underwood and Penner text mentioned above concerning real evidence.
I might mention that this question – whether the nature of hearsay and the business records exception are changed by the use of electronic records – is one on which Ken Chasse and I have differed for the past twenty years. He has not persuaded me on the point, and I have not had more influence on his conclusions. He does agree with me, though – or came first to the conclusion – that the best evidence rule should go. See for example K. Chasse, “Electronic Records as Documentary Evidence”, (2007), 6 Cdn Jl Law and Technology 141, 156.
The authors of the article are keen supporters of the Canadian General Standards Board’s Standard on Electronic Records as Documentary Evidence, and say at one point that compliance with that Standard should be mandatory for admissibility. (My overview of the CGSB Standard is here.) The Conference’s working group was asked by a group of records managers to provide expressly for the use of the then-current CGSB Standard, on microfilming and scanning. The working group deliberately did not do so, on the ground that the Standard was more demanding than necessary for many cases.
It was common in the 1990s for businesses dealing with each other electronically to form ‘trading partner agreements’ that set out, among other things, how they would transmit, acknowledge and sign the electronic communications. These agreements tended to say that the parties would not dispute the admissibility of documents treated as agreed. There was some difference of views whether such agreements could bind courts, as evidence law is at least in part a matter of public policy.
It was pretty clearly the law before the Uniform Act that courts could look at industry standards in evaluating conduct. The reason that section 6 on standards was put into the Uniform Act was to try to ensure that such standards would be read broadly, toinclude if need be these private agreements on how electronic evidence would be handled. The purpose was to satisfy the parties’ reasonable expectations, not to please archivists.
A case of non-statute-based authentication at work, in the absence of standards, is Bell Expressvu Limited Partnership v. Rodgers (Tomico Industries), 2007 CanLII 50595 (ON SC). Though no reference was made to federal or provincial evidence laws, the plaintiff was held to have duly authenticated its evidence, despite the vulnerability of electronic documents to falsification. (paragraph 9 point 1) The court also noted that there were ‘no generally acknowledged practices for preserving, documenting or securing electronic evidence’, but on review, even the defendant’s expert described the plaintiff’s practice in this case as ‘picture perfect.’ (paragraph 9 point 9) In the light of such decisions, it seems imprudent to require adherence to a particular standard, however respectable.
To see how a case under the CGSB standard might look, one can review R. v. Oler, 2014 ABPC 130. The court held (wrongly, in my view) that the Alberta Evidence Act (which implements the Uniform Act) required compliance with the CGSB Standard, but the proponent of the electronic evidence persuasively qualified its witness and the witness showed the court that her employer had complied, and the evidence was admitted.
It can make sense to insist on the Standard for some purposes, as does the Canada Revenue Agency for the maintenance of scanned business records for excise tax purposes. (paragraph 15) However, for maintaining records that were originally electronic, the CRA sets out its own requirements (paragraph 17ff), and suggests referring to the (then pending) Standard as a help (paragraph 22). In my view, and that of the Conference working group, it would be too demanding to legislate the routine exclusion of relevant evidence because the Standard is not satisfied.
The Standard was, by the way, developed with a view to providing a way to satisfy the requirements of the Uniform Act, as well as to be a generally good way to keep electronic records. It is, after all, a standard on e-records as documentary evidence. So it would be wrong to treat the two documents as working at cross-purposes or being inconsistent with one another.
I have noted several of the main instances in which I think the authors of the Archivaria article have misconceived the Uniform Act and sometimes the law of evidence as well. Their approach to law reform in this field so heavily reliant on the common law seems to me unduly hopeful as well.
The article calls for ‘continuous and sustained updating’ ‘to keep law current with technological change, especially in the areas of evidence and procedure’ (page 100). Such a process may appeal to academics but would be very hard on record managers and on lawyers and judges trying to advise on or decide what records would be admissible from time to time and how. Attempts to legislate for particular technologies tend to fail, too, because legislators do not act as fast as technology evolves. Even standardsare slow work; a revision to the CGSB Standard has been under way for some years.
The authors lament that ‘the limitations of the [Uniform] Act have resulted in the courts’ continuing reliance on traditional, narrow common law rules rather than broader, new statutory rules.’ Besides rules on the supposed link between hearsay and e-records, they call for updated or wholly new rules on search and seizure of electronic records in both civil and criminal cases, the protection of privacy, retention and preservation duties, and spoliation of electronic records.(page 104)
What they do not actually demonstrate in the article is that people have trouble understanding the rules in the Uniform Act or that the rules lead to unjust results. Whether ‘broader, new statutory rules’ are desirable for the other areas they mention, which the Uniform Act was not aiming at, needs cautious review. Some, like privacy, are new under that name to the law of evidence but are beginning to make their appearance. Others, like spoliation, may be better developed for technology by common law principles.
Meanwhile, the Uniform Act may not work – for them– in theory, but I think a good case can be made for its working – for the rest of us – in practice.