The announcement comes in a communication from David A. Wright, Chair of the new Law Society Tribunal:
I am delighted to announce that with the formation of the Law Society Tribunal today by Bill 111, the Modernizing Regulation of the Legal Profession Act, 2013, we are launching our new website. The website is designed to provide lawyers, paralegals, the public and the media with easy and transparent access to information about the Tribunal. Many resources may be found here, including legislation, rules and forms, guides for self-represented licensees, notices to the profession and a “reach out” to stakeholders. I encourage you to visit the website at www.lawsocietytribunal.ca or www.tribunaldubarreau.ca.
Bill 111 is available here.
Apparently, the brain is the least understood by the medical community of all the human body parts.
Some doctors say that a healthy brain is partly dependent upon physical exercise and a proper amount of sleep. Apparently good things happen to our brains when we are sleeping. John Ratey of the Harvard Medical School and author of the book, Spark: The Revolutionary New Science of Exercise and the Brain (2013) states: “Exercise is the single best thing you can do for your brain in terms of mood, memory, and learning”.
A healthy brain includes the conscious and the unconscious. Unconscious thinking includes the processing of memory, learning, thought and language without being aware of it. Reciting the alphabet from A to Z can be done without much thinking but try reciting the alphabet from Z to A.
Recently the scientific community has regarded the unconscious mind as an active and essential component in the process of decision making.
It is accepted that experience is a necessary element in the performance of many skills and occupations. The benefits of experience may lead to automatic or unconscious action.
David Brooks in his book, The Social Animal: the Hidden Sources of Love, Character and Achievement (2011), argues that the unconscious mind is probably more important than the conscious mind. Brooks says that decision making is an inherently emotional business (page 17). He says “Reason is nestled upon emotion and dependent upon it. Emotion assigns value to things, and reason can only make choices on the basis of those valuations (page 21).
Brooks says that we are “primarily the products of thinking that happens below the level of awareness”. That is, we may act without forethought. Consider the natural impulses of a North American car driver when faced with driving on the left side of the road in the United Kingdom. The unconscious impulses of such a driver are all wrong in the UK but are correct when driving in North America.
Brooks states that “most of what we think and believe is unavailable to conscious review. We are our own deepest mystery. Not knowing ourselves, we also have trouble fully understanding others.” (page 245). This view of our thinking abilities should result in a degree of modesty. Brooks states that such modesty “begins with the recognition that there is no one method for solving problems”.
Consider the statement, “How rarely reason guides the stubborn choice” by Samuel Johnson, the great lexicographer, in the biography by W. Jackson Bate, p. 306.
If David Brooks is right that we lack a full understanding of ourselves, it justifies a degree of humility regarding many of our opinions and beliefs.
Digital Globe, a commercial satellite image company, has started a crowdsourcing campaign to help find the missing Malaysia Airlines Flight 370. You can go to their Tomnod site, look at satellite imagery of where the plane might be, and tag anything that may look like wreckage or life rafts.
It doesn’t seem that long ago that satellite imagery, especially high resolution near real time imagery, was exclusively for government spy agencies.
Now anyone can obtain up to date satellite imagery with remarkable resolution. (The best resolution is still reserved for government use.) If a recent image is not available to suit your needs, you can actually request a custom image of the location you are interested in – satellite tasking options are available to order a specific image that will be taken within hours. Another option is to use your own drone, or hire someone with a drone, to take aerial images.
Are there situations where lawyers might want to obtain or use this kind of imagery?
Are there situations where lawyers might use crowdsourcing to help find evidence within satellite imagery or other large volumes of public data?
With so many new gTLDs (“generic Top Level Domains”) coming online this year, I thought it might be worth exploring their value and potential use in law firm marketing.
The simplest example of a gTLD, of course, is .COM, which makes up about 50% of all domains registered. In the past, most prospective owners found themselves wishing for a .COM, and given a lack of options, were willing to settle for a .ORG or .NET. In Canada, we might also take the alternative of our country code domain (.CA), if it was applicable to restrict or focus our desired audience. I’m going to skip over .INFO and .BIZ. (Just as most consumers have.)
The challenge has always been to find a short memorable .COM domain name. Resorting to any other gTLD has always felt like a “second choice” move.
Fast-forward to 2014 and an influx of new domains coming online. Here are some worthy examples we may soon be considering in the legal market:
Should you go in this direction for your gTLD, and if so, “how valuable will it be?” Should you register a .LLP rather than a .COM for a brand new law firm? What if the new gTLD domain you want was already registered as a .COM? Potential conflicts abound.
Or what if you intend to create a topical microsite for an independent subject? The .LLP wouldn’t be suitable, but perhaps you can acquire a short memorable .LAW or .HELP domain for that new property.
Here are my own thoughts on this decision:
.COM likely remains a trump card. If the introduction of .INFO and .BIZ domains are any indication, the dominant days of the .COM won’t be over anytime soon. Registering a new gTLD that simply matches an existing .COM should prove a wasteful strategy for most law firm websites.
Shorter domains are preferable. Can you get a descriptive two-term phrase that exactly matches your law firm’s market or describes its services? If you’re willing to invest the time required to market an original website concept on that domain, you might have a future winner on your hands.
Google will still be kingmaker. If Google allows each gTLD to mean something — to become definitive for a “type of business” – it will make all the difference for the potential usability of these new gTLDs. For example, if .LLP became the defacto choice for “law firm websites”, and these sites were given a small edge for relevant searches within Google, then that would be a viable reason to choose a .LLP over a .COM.
.gTLDs aren’t for cheap speculation. At $40 a year for each domain registered, grabbing a bunch of new domains won’t be an inexpensive proposition. My rule of thumb is to not buy domains unless you’re prepared to build a website on them. The new gTLDs will be no different.
The new gTLDs will eventually be picked over the same way .COM is, at least for the “good” domains. But selecting a new domain will always be easier when there are options available. And in that respect, the new gTLDs are a potential win for both consumers and law firms. We might still sort through “the leftover bin” of available .COMs before choosing a .LLP, but when the term or phrase we want isn’t available, we won’t be force to rethink our entire project plan.
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:
- Nearctic Nickel Mines Inc. c. Canadian Royalties Inc. 2012 QCCA 385
 Referring to article 946.5 C.C.P., the appellant's contention is that the Arbitrator granted a mandatory injunction, i.e. specific performance, in order to force compliance with the contract. Since the power to render permanent injunctive conclusions of this nature is exclusive to the Superior Court, the award should be annulled for that reason alone.
 Respondent replies that the Arbitrator did not issue an "injunction" within the meaning of article 751 C.C.P. but rather ordered the specific performance of a contractual obligation, which is tantamount to a conveyance of title. Therefore, the Arbitrator did not usurp the exclusive prerogatives of a judge of the Superior Court.>
- R. v. Hutchinson 2014 SCC 19
1] Control over the sexual activity one engages in lies at the core of human dignity and autonomy (R. v. Ewanchuk, 1999 CanLII 711 (SCC),  1 S.C.R. 330, at para. 28). This principle underlies the offences of assault and sexual assault. Sexual activity without consent is a crime under the Criminal Code, R.S.C. 1985, c. C-46.
 In this case, the complainant consented to sexual activity with a condom to prevent conception. Unknown to her at the time, her partner, Mr. Hutchinson, poked holes in the condom and the complainant became pregnant. Mr. Hutchinson was charged with aggravated sexual assault. The complainant said that she did not consent to unprotected sex. The trial judge agreed and convicted Mr. Hutchinson of sexual assault 2011 NSSC 361 (CanLII), (2011 NSSC 361, 311 N.S.R. (2d) 1). The majority of the Nova Scotia Court of Appeal, per MacDonald C.J.N.S., upheld the conviction on the basis that condom protection was an essential feature of the sexual activity, and therefore the complainant did not consent to the “sexual activity in question”. Farrar J.A., dissenting, held that there was consent to the sexual activity, but that a new trial was required to determine whether consent was vitiated by fraud 2013 NSCA 1 (CanLII), (2013 NSCA 1, 325 N.S.R. (2d) 95).
- Khan v. Sinclair 2014 ONSC 1355
 The evidence of lay persons such as the Plaintiff and his family members can only be adduced as further support for a physician’s medical evidence, not in place of it. As the Divisional Court put it at para 18 of Gyorffy, “s. 4.3, read as a whole, is concerned primarily with the evidence of physicians and the requirements their evidence must satisfy. It requires that there be such evidence ‘in addition to any other evidence’”.
 Ms. Nguyen correctly points out that section 4.3 of the Regulation contains no relieving provision. The failure to adduce a physician’s evidence cannot be taken as a mere procedural oversight; rather, it is a failure to fulfill a key evidentiary requirement, specifically set out in the governing legislative instrument.
 Having failed to adduce any medical evidence from a physician, the Plaintiff has failed to support the claim that he suffered permanent serious impairment of an important physical, mental or psychological function. Accordingly, the Defendants cannot be held liable for the Plaintiff’s non-pecuniary losses.
The most-consulted French-language decision was Service Bérubé ltée c. General Motors du Canada ltée 2011 QCCA 567
 Le débat s’inscrit dans la tourmente qui a secoué l’industrie automobile en Amérique du Nord. Après cinquante ans d’existence, un concessionnaire automobile General Motors du Canada Ltée (GM) établi à Trois-Pistoles s’est vu refuser le renouvellement de son contrat de franchise qui venait à terme le 31 octobre 2010.
 L’appelante (Bérubé) s’est adressée à la Cour supérieure pour obtenir diverses mesures déclaratoires et injonctives afin de forcer GM à renouveler son contrat.
 Invoquant une clause compromissoire, GM a demandé que le différend soit référé à l’arbitrage. Le juge Nadeau de la Cour supérieure a fait droit à la demande de GM et a référé le dossier à l’arbitre. Bérubé se pourvoit.
* 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.
Each year, I look forward to the results for no other reason than to gauge the impact of changing public expectations on the business of law.
Edelman’s methodology included surveying 33,000 people in 27 markets around the world regarding their trust in information sources and the specific issues that influence trust in business and government.
Some of the statistics in this year’s study surprised me. There are implications for private law firms both big and small.
1. Trust in non-governmental organizations is increasing across the globe. Trust in government and media has declined. Implication: if you haven’t factored social responsibility into your firm strategy, it’s time to do so.
2. Canadian companies are the fourth most trusted in the world, behind Germany, Sweden and Switzerland, but ahead of the U.S., U.K. and Japan. Implication: good news for those of you in Canadian firms with plans for international expansion or doing work for an international clientele.
3. In North America, small-medium sized business (78%) is trusted more than privately held (63%) and big business (45%). Implication: smaller firms are considered more entrepreneurial, innovative and responsive to client needs. They have more opportunities than they might realize to attract work from larger firms that are slower to adapt.
4. Only 26% of those surveyed trust business leaders to correct issues within industries that are experiencing problems. If it’s any consolation, only 15% would count on government to lead the charge. Implication: real opportunities exist for firms willing to take the plunge and lead discussions about how the practice of law will need to evolve if it is to earn improved levels of public trust.
5. Employees – not the CEO or firm leaders – are considered the most influential authority on a firm’s purpose, integrity, services and operations. Implication: law firms have untapped opportunities to engage and align employees. But this will require a departure from tradition – i.e. shifting the mode of operation from “command and control” to one of transparency and shared meaning.
Before you dismiss studies such as the Trust Barometer as irrelevant to the practice of law, consider this: regulated professions are expected to hold public trust not just in terms of compliance, but also in terms of leadership. When the public doubts an industry’s desire to anticipate and meet its needs, confidence, esteem and respect fade. No one wants that for the legal profession – least of all, me.
- Visit the Edelman Trust Barometer home page
- Review the 2013 Gallup survey of perceived honesty and ethics in the professions. Only 20% of Americans give lawyers a rating of “high/very high”. This is somewhat ironic since lawyers comprise a large portion of other professions surveyed – judges, politicians and lobbyists.
The Law Society of Alberta requires members to declare their intentions about continuing professional development each year. Each March members of the bar are required to think about and report on the activities they will undertake to maintain their competence. Alberta and Newfoundland and Labrador are the only jurisdictions without a minimum hours requirement for CPD.
I was thinking about the requirements for lawyer CPD while chatting with my match from the Canadian Association of Law Libraries Mentoring Program. My mentee and I chat on the phone, engage in email correspondence and very occasionally meet in person. Every time we chat, even though I am technically the mentor, I learn something.
If I were a lawyer in Ontario, mentoring articling students or paralegal field placements counts for CPD hours.
Mentoring, for me and I hope for my partner, is a valuable activity that enhances my personal professional development. I see CBA matched lawyer mentors and mentees (outside of the articling student/principle relationship) touring through our Alberta offices. Our firm has a formal internal mentoring program as well.
My questions for Slawyers: Do you consider mentoring part of your continuing professional development?
When can a party put into evidence a settlement reached between the parties, and to what end? In most cases, the answer is never. Not only are parties generally careful to insert a confidentiality clause in the settlement agreement, but in many cases, the relevance of a related settlement is doubtful to say the least. The situation is different in class action matters, where parties will inevitably have to publicize any settlement that has been reached, its terms and the amounts the Respondent has agreed to pay. Just last month, the Quebec Superior Court rendered a judgment in Cunning v. FitFlop on the question whether an out-of-province settlement is relevant for production at authorization.
In Cunning, a Quebec Petitioner had commenced a class action against FitFlop, a shoewear manufacturer, alleging false representations and misleading advertising. As is often the case in class action litigation, similar class actions, which sought to represent overlapping class members, had been filed in other jurisdictions, based on substantially similar allegations. One of those actions had been commenced by a separate Plaintiff in the United States, and had been settled shortly before the Quebec authorization hearing.
At the authorization hearing, the Respondent in Cunning objected to the Petitioner’s attempt to file the American settlement notice, which contained the detail of the agreement reached between FitFlop and the American Plaintiff. FitFlop’s counsel had argued that as a settlement, it was concluded without prejudice and without any admission whatsoever on the part of FitFlop, and was therefore irrelevant to the Quebec proceedings. The Petitioner’s counsel, on the other hand, argued that the document was publicly accessible.
The Court held that the American settlement notice was admissible evidence at the authorization stage, where the Petitioner’s burden is one of demonstration and not of proof. It is important to note, however, that the Court also pointed out that its determination on admissibility at the authorization hearing did not have any bearing on the document’s admissibility or probative weight at the trial on the merits. Specifically, the Court stated that although it could take into account the existence of the American settlement, this evidence did not necessarily prove anything in the present case.
Beyond its purely legal interest, the significance of the judgment in Cunning lies mainly in the impact it is likely to have on class action defense strategy. Will the judgment be a disincentive on class action Respondents to settle, particularly those Respondents represented by the same firm in overlapping multijurisdictional class action? The admissibility of the terms of an extra-territorial settlement, and its potential weight at authorization and on the merits, risks scaring Respondents away from settling, out of a concern that they are somehow admitting a certain guilt.
If the justice system is to encourage out-of-court settlement generally, why allow such a document to be filed? If the American settlement does not have any probative weight, what is its relevance in Quebec, other than allowing the Petitioner to colour the file against the Respondent? The judgment in Cunning at first glance seems to tilt even further towards Petitioner rights in the Province, allowing Petitioners to file any evidence they wish at authorization, while imposing stringent limits on Respondent filings. But does it not also encourage Respondents to avoid settlement, therefore ultimately going against Petitioner interests?
Do you ever wonder about how all that tech that you’re using every day really works? What powers all those social networks that seem so important? Is that website really magic? How does Dropbox work anyway? Building and managing all this tech was once the arena of specialists, developers, programmers, system administrators and such. This is no longer true.
Thanks to advances in technology it’s possible for you to hold a fully functional Internet server in the palm of your hand. Add in a handful of open source software and you’re well on your way to understanding just how all of that fun tech you use everyday works. That server in your hand is the Raspberry Pi.
The Raspberry Pi is an excellent little computer and everyone interested in computers needs to get one. It is an excellent tool for learning programming, learning about Linux, prototyping interesting things, and more. Properly decked out with a case, USB power supply, and wifi adapter it’ll set you back less than $100. Connect a keyboard, mouse, and monitor and you’ll soon have a complete Linux server as your disposal.
That’s right, one of the most interesting things about the Raspberry Pi is that it is really an Internet capable server powered by Linux. You can use the Pi to learn about sorts of things about how the Internet works, about how networks work, about how data moves from one place to another.
Now you may be thinking “So what? Why does it matter how these things work?” It matters because much of the practice law is about information and often that information passes across many networks including the open Internet. Understanding some of the basic ways that this information can be handled on servers and networks will help you back decisions about using information.
Open source software figures into this at many points. Many of the popular tools you use on the Internet were created with and run on open source platforms. Many of the commercial tools you use have open source analogues. By its nature open source software provides you with the ability to examine the code of the programs. It also typically provides some level of documentation and access to a community of developers and users of the software. This is important because this access provides a means for understanding what the software does.
Because open source projects have some documentation and communities available you can get some understanding of the software without needing to delve into the code. That’s right, you don’t need to be a programmer to understand an open source program. You just need to be able to follow along with the documentation to start understanding the project.
Putting all this together means that a Raspberry Pi loaded with open source software gives you a tool for understanding how things work. You can use the Pi to run your own little piece of the Internet and learn about how information flows on the Internet.
How about a concrete example? You’ve likely heard of Dropbox, the file storage and synchronization system. Dropbox puts a folder on your computer desktop and when you save files into the folder the files are copied to a Dropbox server and synchronized across multiple computers. This is a great service and enables us to work across multiple computers and share files with others quickly and easily.
While this is a great service, there is the fact that your data is being stored on Dropbox’s servers. Yes, it is encrypted, but it is still in someone else’s control. Using a Raspberry Pi and an open source program called ownCloud you can create your own system that works just like Dropbox but you get to keep control of all your own data. Your files stay on your server but you get all of the storage, synchronization, and sharing capabilities you expect from Dropbox.
To get started with this project, visit the ownCloud on Raspberry Pi web page and follow the brief instructions there to download the image that let’s you create the ownCloud server. It’s worth noting here that one of the useful features of the Raspberry Pi is that the entire system and all storage is on a single SD card. That means that you can switch out things easily.
Once you have the image on the SD card and you’ve booted up the Pi, you can get started by visiting the ownCloud documentation site for help in getting everything set up. Then visit the ownCloud install page to download the desktop clients you need to start syncing files with your desktop. When everything is ready to go you can store sync files on your own server.
The big thing to remember here is that you can take a look at the server and see the files being copied from your pc to the server. This is what makes the combination of the Raspberry Pi and open source software so interesting and important. You can use the platform to learn a bit about how information flows on the Internet.
Here are excerpts from the most recent tips on SlawTips, the site that each week offers up useful advice, short and to the point, on technology, research and practice.
Create a Play List to Help Yourself Fall Asleep
Not sure if the experts will say this is a scientifically helpful idea for falling asleep (IMHO it seems better than just counting sheep), but sometimes you will want to . . .
Check the Facts
This post first appeared on Slaw July 2, 2009 and it is still relevant advice.”In this world of super fast document retrieval it is sometimes important to remember the basics. I was just asked for a decision where the style of cause and the citation both contained errors. . . .
Management, IT and Law Firms
David Bilinsky & Garry Wise
Law firms like to think that they do things rather well. Exceptionally well, as a matter of fact. Particularly the biggest ones. Only problem is, not everyone agrees with that perception. . . .