The Friday Fillip: Through a Glass Darkly


The world is a great deal bigger than we know, bigger than we can even imagine. This, at least, we understand, albeit at one of those unhelpful meta levels in our culture’s epistemology. It is the task of science and religion, I suppose, to toil away perpetually at the ever present rockface of the unknown. But somewhere between the physics and the metaphysical we ordinary folk can catch occasional glimpses of the extraordinary, the glint of something unconsidered.

I don’t mean to make it sound as though these insights are always numinous or portentous. They may be, of course, but such glorious instants are sadly rare. Here I’m after those observations that illuminate our daily lives just a little, the sorts of things that someone might introduce by saying, “Have you ever thought of it this way, that . . . ?”

This is the kind of modest investigation aimed at by a website I’d like to recommend today. The Dictionary of Obscure Sorrows is:

…a compendium of invented words written by John Koenig. Each original definition aims to fill a hole in the language—to give a name to emotions we all might experience but don’t yet have a word for.

The author’s mission is to capture the aches, demons, vibes, joys and urges that roam the wilderness of the psychological interior. Each sorrow is bagged, tagged and tranquilized, then released gently back into the subconscious.

Because Koenig is “a video guy,” a lot of the emotional ferae naturae are described in brief YouTube films; and there’s a YouTube channel you can subscribe to that promises new episodes every other Sunday. There’s a Facebook page featuring a little bit of the backstory for the various entries in the dictionary. But the main site is a Tumblr, where in addition to video there are textual definitions.

But enough adumbration. Let me give you an example of each type — so that this fillip doesn’t itself become an essay at capturing a thing glimpsed.

the meantime
n. the moment of realization that your quintessential future self isn’t ever going to show up, which forces the role to fall upon the understudy, the gawky kid for whom nothing is easy, who spent years mouthing their lines in the wings before being shoved into the glare of your life, which is already well into its second act.

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Re-Litigation by a Patentee With a Different Party – Has the Federal Court Been Consistent in Its Approach?


Over the past few years the pharmaceutical marketplace has seen an increase in patent “re-litigation” (where a patentee is involved in a second case against another generic). Following the Federal Court of Appeal’s warning to losing brands that they must put their best foot forward in case1[1], and at the same time, arguably permissive attitude regarding new generics in case2, the Federal Court continues to grapple with how to fairly deal with re-litigation. One notable hurdle is the unusual procedural regime of the Notice of Compliance (“NOC”) Regulations. NOC proceedings are designed to result in merely preliminary type findings and are not directed at actual validity/infringement. One’s entitlement to have their day in court is to be balanced against concerns of abuse of process, judicial comity and court resources. Clarification of this balancing of procedural versus substantive rights would be welcome, in the context of both co-pending and consecutive cases.

Examples of re-litigation

No re-litigation – acceptance of case1

Generic1 Win -> Generic2 Win

A recent example where a generic 1 win resulted in an “automatic” generic 2 win is the case of Bayer v Apotex 2014 FC 403. Justice Hughes had earlier found that Cobalt (generic 1) did not infringe and that certain claims were invalid (as they were directed at a method of medical treatment which is not patentable subject matter)[2]. In his brief decision Justice Hughes specifically referred to a warning given to the parties at a pre-trial conference that the court was “was unlikely to come to any different conclusions” in the second case. The court ended up simply adopting its reasons from case1 after being advised by the parties that they would not be making submissions. The court awarded a 25% increase in costs against the brand for persisting with its losing case for 6 months following the court’s decision in case1. The court rationalized the cost consequences by referring to the trend against litigation in NOC proceedings:

“The Court has been critical of situations where multiple proceedings have been taken in respect of the same patent under the NOC Regulations where a previous determination has been made as to the justification of allegations as to infringement and /or validity. …

There is little need to relitigate a patent under the NOC Regulations except where significantly different issues are raised or significantly different new evidence is placed on the record.”[3]

Similarly a generic 1 win, even an originally “secret” win (Alcon v Apotex 2012 FC 410, publicly released December 2013), had strict consequences for a brand’s case against a second generic (Cobalt). In Alcon v Cobalt 2014 FC 525 (olopatadine, an eye drug), the brand discontinued its case2 against a second generic days before the hearing. The history of case1 was admittedly unusual – after the parties in case1 had advised the court that they were in the process of settling, a confidential decision was mistakenly released finding Alcon’s patent obvious. The confidential decision was withdrawn after the court was mistakenly informed a settlement was reached, and case1 was discontinued. The confidential decision remained confidential for 1.5 years (and was only publicly released after generic 2 moved for its release). Only after the decision was public did the brand finally discontinue its case2[4]. Justice Gleason found Sanofi-Aventis 2007 was “dispositive” and it was an abuse for the brand to re-litigate obviousness in case2: “That issue was the same in both cases and arose directly from the patent, itself.”

The court granted solicitor client costs (a rare relief) against Alcon for the 5 month period from the time it was clear from Ontario court proceedings that Alcon had no settlement and had kept the invalidity decision in case 1 “secret”. At that time “it was incumbent” to advise the court so that decision1 could be reinstated. The court explicitly recognized the effect that decision1 could (and in fact did) have on re-litigation with subsequent generics who were forced to litigate issues and “incur expenses that were wholly unnecessary”. Re-litigation, as opposed to properly appealing (or in the NOC regime bringing an infringement action) was “reprehensible, scandalous or outrageous” conduct. This finding arguably highlights the dangers of re-litigation and the court’s impatience with parties’ efforts to avoid its effects.

A recent example of co-pending cases involves Viiv Healthcare’s abacavir combination drugs – where Apotex’s case started 4 months after Teva’s case[5]. The 2 generics have most recently been successful on motions dismissing their cases as they relate to a patent to one drug that was deemed not eligible for inclusion on the patent register against a combination.[6] Interestingly, generic2 (Apotex) and the brand agreed that the evidence would be the same on the motion in case2 as in case1, with the result that the Prothonotary granted the motion in case2, without a hearing.

Generic1 Loss -> Generic 2 Loss

The FCA has equally instructed that a brand’s successful legal arguments from case1 are to be applied in case 2, unless the second court is “convinced that the prior decision is wrong and can advance cogent reasons in support of this view”.[7]

A good example of confusion that can arise, both procedurally and substantively, was in Apotex v Allergan 2012 FCA 308. Although Justice Hughes in fact came to a new result in case2, the FCA found this was a “fairly straightforward application of the doctrine of comity”. The FCA rationalized the doctrine was to “prevent the same legal issue from being decided differently by members of the same Court, thereby promoting certainty in the law”. As the FCA was troubled by the existence of “conflicting and equally authoritative decisions as to how the ‘764 patent is to be construed … it falls upon this Court to determine which is the correct one”. The FCA then conducted a de novo analysis, and came to the same findings as in case 1.[8]

Arguably concerns of re-litigation and consistency arise even in co-pending cases (a frequent occurrence under the NOC Regulations). Although not strictly invoking the principles of abuse of process or comity (given case1 may simply have been heard before case2, without any decision1), it is clear that case1 may certainly have an effect – even if unstated – on case 2. From a practical /procedural standpoint, the Federal Court Registrar will generally often try to schedule co-pending re-litigation cases with the same hearing judge. Query whether there is any duty of the court to refer to the existence of a co-pending case and/or a prior hearing in their decision.

For example Justice O’Reilly recently heard two NOC cases in March and April 2014, and wrote nearly identical decisions (released the same day) upholding Allergan’s bimatoprost improved eye drop formulation patent.[9] The court makes no reference to the co-pending case in either decision. It appears there were no substantive differences in the legal/factual arguments in regards to anticipation and obviousness – the wording of the decision is identical in these 2 areas, notwithstanding the two generics had different experts. Allergan’s experts in the 2 cases were the same; Allergan also relied on the evidence of one of the inventors in the Cobalt case1 (whose evidence was not discussed in the decision). The only notable differences in the 2 decisions relate to the factual basis for a sound prediction (at paras. 33-34). Cobalt was critical of the testing method of the example formulations in the patent; Apotex alleged that the rabbit testing of a parent bimatoprost was not predictive of effects in humans. As would be expected, Apotex (generic2) successfully requested that at least a portion of Allergan’s court materials in case1 be filed publicly, prior to the filing of Apotex’s factum.

Permitted re-litigation – new result in case2

Generic 1 win -> not necessarily Generic 2 win

At the same time the court has refused to follow an earlier decision regarding patent construction, on a generic2’s motion to dismiss[10]. It was not an abuse of process for the same brand to argue for a different legal construction in a second NOC case.

Generic 1 loss -> Generic 2 win

Justice Hughes found a generic2 (Apotex) successful after a generic1 (Cobalt) loss[11], in the area of infringement. Infringement may understandably be characterized as a “generic specific” issue if it relates to properties of the generic product, as opposed to “patent specific” issues which would likely be equally applicable irrespective of the generic respondent. Apotex successfully argued its drospirenone/ethinyl estradiol product does not infringe.

Interestingly, again Justice Hughes specifically addressed the effect of case1 on case2 before him:

[7] At a pre-hearing conference which I held with Counsel for the parties I indicated that I had read the Record in the present proceedings and the memoranda of argument filed in these proceedings by each party. I indicated that I would be inclined to follow my decision in the Cobalt Proceedings unless a different issue has been raised in these proceedings or substantially different evidence was in the Record in these proceedings. …

This resulted in generic2 dropping its obviousness attack; however it unsuccessfully re-argued insufficiency – the slightly different allegations raised by Apotex in fact appeared to stress the futility of both generics’ arguments: “Apotex and Cobalt seem more intent in casting about to pick at whatever [sp] they can than to argue genuine ambiguities or insufficiencies”. A new argument regarding anticipation by prior experimental clinical trials was also unsuccessful.

With respect to construction, Hughes identifies more claims in issue in Apotex case2. New “pinching issues” related to the forms of drugs covered in the claims. At the same time, the court is careful to repeat sections of the earlier Cobalt decision1. Following construction, the court found Apotex’s testing more persuasive, resulting in a finding of non-infringement.

Next Developments

Although these cases are all in the NOC context, they are good examples of the balancing involved in any abuse of process or comity “re-litigation” matter. At the same time, the practical reality may be that re-litigation in the Federal Court will generally be restricted to the pharmaceutical marketplace. Expected amendments to the NOC Regulations regime (following the recently finalized CETA), may drastically change the nature and effect of NOC proceedings, and their interplay with full patent actions. This may result in more appellate decisions, such that abuse/comity may give way to standard stare decisis principles (with lower court judges simply following binding legal findings from the FCA). The ultimate example of currently permitted re-litigation as between NOC cases and actions is the case of clopidogrel. Six years after the SCC considered the NOC case (finding Sanofi’s patent not anticipated or obvious), the SCC will once again consider the validity of the same patent in an action (re-litigating issues of obviousness, and considering utility/Promise).[12]

 

____________________________

[1] Sanofi-Aventis Canada Inc. v Novopharm Limited, 2007 FCA 163 (“Sanofi-Aventis 2007”)

[2] Bayer v Cobalt 2013 FC 1061 (drospirenone and ethinyl estradiol)

[3] In reality the “25%” costs penalty is in fact not a real deterrent to a losing brand, given the potential financial benefits of a win in the second case. It is also interesting the court was not persuaded by the fact that its decision in case1 was under appeal.

[4] Although not dealt with in Gleason J’s reasons, it is expected that generic2’s arguments were identical to generic1’s arguments (as these latter arguments were likely available).

[5] Viiv Healthcare v Teva (Court File No. 1517-13) and Viiv Healthcare v Apotex (Court File No. T-333-14)

[6] Viiv Healthcare v Apotex, Teva 2014 FC 893 (Hughes) [under appeal; A-452-14; A-453-14 and A-454-14]

[7] Apotex v Allergan 2012 FCA 308

[8] The case is interesting from a procedural point of view because although Justice Hughes found in favour of generic2, he felt compelled to grant the brand’s prohibition application in order to “force” a review of relitigation principles in the NOC context by the FCA. The FCA disagreed with such an approach.

[9] The Cobalt case was started 2 days before the Apotex case. Allergan Inc. v. Cobalt Pharmaceuticals Company 2014 FC 566 (under appeal A-321-14); and Allergan Inc. v. Apotex Inc., 2014 FC 567 (under appeal A-299-14). Apotex’s appeal does not make any reference to the identically worded decisions, however Cobalt’s notice of appeal asserts that although there was different evidence, “practically identical reasons” were issued At the same time, Cobalt’s Notice of Appeal largely tracks the language of Apotex’s appeal.

[10] Valeant Canada v Cobalt 2013 FC 1254 (Justice Zinn)

[11] Bayer v. Apotex, 2014 FC 436 (case 2) and Bayer v Cobalt 2013 FC 1061 (case 1; under appeal (A-376-13))

[12] Apotex v. Sanofi 2008 SCC 61; and Apotex v Sanofi SCC File No. 35562 (SCC hearing scheduled for November 4/14)

McCormick on Gender and Judgment Assignment on the SCC


Each Thursday we present a significant excerpt, usually from a recently published book or journal article. In every case the proper permissions have been obtained. If you are a publisher who would like to participate in this feature, please let us know via the site’s contact form.

Who Writes? Gender and Judgment Assignment on the Supreme Court of Canada

Peter McCormick
Osgoode Hall Law Journal Vol. 51, no. 2 (2014): 595-626

Excerpt: Summary & Parts V, VI and VIII

[Footnote renumbered]

This article poses the question: Now that women are receiving an increasing share of the seats on the Supreme Court of Canada (the Court), can we conclude with confidence that they have been admitted to full participation, with a mix of judgments—including the more significant decisions—that is fully comparable to their male colleagues? The author looks at the assignment of reasons for judgment on the Court over the last three chief justiceships,with specific reference to the relative rate of assignments to male and female judges. He
finds that the male/female gap is more robust than ever, although he also identifies considerations that suggest that there may be factors other than gender alone that are at play.

Cet article soulève la question suivante : alors que les femmes représentent aujourd’hui une proportion de plus en plus grande des juges de la Cour suprême du Canada, est-il possible d’affirmer, en analysant une brochette de jugements – dont ceux qui ont été les plus marquants – qu’elles sont désormais sur un pied d’égalité avec leurs collègues masculins? L’auteur examine les motifs assignés des jugements de la Cour sous ses trois derniers juges en chef, en étudiant plus particulièrement la proportion des assignations confiées aux juges masculins et féminins. Il constate que l’écart entre les hommes et les femmes est plus tenace que jamais auparavant, bien qu’il identifie également des éléments qui suggèrent que des facteurs autres que le sexe pourraient entrer en ligne de compte.

V. THE CHIEF JUSTICE FACTOR

As we saw in the previous Part, more important judgments of the Dickson and Lamer Courts were delivered per judge per year by male judges (one of whom was the Chief Justice) than by the female justices, whereas more important judgments of the McLachlin court were delivered per judge per year by female judges (one of whom was the Chief Justice) than by their male colleagues. Before we conclude that the wheel has turned and equal sharing has been achieved, perhaps even exceeded, we should look more closely at the reiterated parenthetical comment in the preceding sentence and ask how much difference it makes that one justice is also the Chief Justice. Is there a Chief Justice factor at work in addition to a gender factor?

Even on the face of the standard descriptions of the judgment assignment process, there is some reason to look for such a factor. If two or more judges volunteer to deliver the judgment, it goes to the senior justice—and the Chief Justice is by definition always the senior justice. (For almost all of the last thirty years, the Chief Justice has also been the longest serving member of the Court,so they would win the ties even without this proviso.) Beyond this, however, it seems reasonable to think that there is an expectation that the Chief Justice will visibly lead the Court by delivering at least a mildly disproportionate share of the highest profile and most controversial decisions, a category that is not identical to but can reasonably be taken as strongly overlapping with my “most frequently cited” criterion.

As the numbers in Part IV showed, Chief Justices have not always led the Court in top tenth judgments per year, but they have always been part of the cluster at the top of the ranking—always one of the handful of judges visibly leading the Court in the cases that cast real shadows. Table 10 isolates the Chief Justices’ numbers from those of the other members of the Court and expresses each Chief Justice’s top tenth judgments per year as a ratio of the other justices’ top tenth judgments per year. That Chief Justice Dickson would have led his Court so strongly, delivering something more than a double share of the major decisions, is perhaps not surprising, and the Chief Justice factor is only slightly less dramatic for Chief Justice Lamer. However, despite her reputation for keeping a lower profile on a more collegial Court, Chief Justice McLachlin dominates her Court on the more important cases every bit as much as did Chief Justice Dickson. The lower numbers for judgments per year for the Lamer Court and especially for the McLachlin Court reflect the declining reserved judgment caseload for the more recent Courts.

McCormick Table 10 Judgment Delivery Rates Compared

But if there is a Chief Justice factor, the relative judgment delivery rates that test the Songer hypothesis should be based strictly on comparisons between puisne justice apples, leaving out the Chief Justice oranges. This corrected comparison, presented in Table 11, has a substantial impact across all three chief justiceships. On this measure, female judges are still slightly disadvantaged on the Dickson Court, but the margin of this disadvantage has shrunk from 25 per cent to 13 per cent. On the Lamer Court, this margin is similarly reduced, from 15 per cent to a relatively modest 7 per cent—that is to say, the Chief Justice factor itself accounts for fully one half of the apparent disadvantage of female justices in important judgment assignments for the first fifteen years for which female judges accumulated significant service on the Court.

On the McLachlin Court, however, removing the Chief Justice from the count not only turns the apparent positive advantage for female judges back into the same kind of disadvantage they have experienced in the past, but also suggests that the margin of this disadvantage is larger than it has ever been. This is despite the fact that the ratio in total years of service, although still tipped strongly towards male judges, is significantly less so on the McLachlin Court than ever before. Furthermore, the McLachlin Court includes a larger number of female judges, a fact that makes an idiosyncratic or personality-driven explanation less plausible. The McLachlin Court has had more female puisne justices than ever before, and they have accumulated a larger share of the total years of service than ever before. But so far there is no indication that they are getting proportionately more of the judgments. If anything, the contrary is true.

McCormick Table 11 Gender Differences in Major Decision Delivery

VI. DOES IT MATTER?

It might be objected that these differences are, in the end, rather small. After all, one might say, just move one or two major decisions from the average male judge to the average female judge every year or so, and the apparent inequality is exorcised. Indeed, move three or four, and the apparent discrimination is reversed. What can be so significant about three or four decisions on a court that once handed down a hundred decisions a year, and even now delivers annually five or six dozen?

This question grossly understates the problem. We are not talking about just three more decisions here or two fewer decisions there, but two or three for every single judge; the notional “average male judge” or “average female judge” both stand in for a much longer line of specific individuals. Nor are we talking about routine cases or even about normal decisions, but about the top tenth of the Court’s caseload, amounting to about eight cases per year for the Dickson Court, seven per year for the Lamer Court, and an even scarcer six per year for the McLachlin Court. There is nothing small or inconsequential about hypothetically shuffling one or more of these from one judge to another, because each top tenth case is a trophy that has been realized after surviving both the initial judgment assignment gauntlet and the possibility of losing the majority on a swing within the panel. For the individual judge, a puisne justice, this is an opportunity that does not come as often as once per year. Coming out behind by that notional fraction of a judgment per average judge per year is, over a number of years, the functional equivalent of being obliged to leave the Court early, of having a career cut short. Fewer decisions per year means having to invest more years to get the same return, and in this context, apparently small differences really matter.

This difference can be quantified: On the Dickson Court, the average puisne justice delivered 0.77 major judgments per year. Since the average career for a Court justice since 1949 has been about thirteen years, this average number implies a total of ten such judgments over the normal career. To achieve this number would have taken the average male judge on that Court twelve years and eight months, the average female judge fourteen years and six months. On the Lamer Court, this number had fallen slightly to 9.6 major judgments over the normal career, still taking the average male judge the same twelve years and eight months but the average female judge thirteen years and nine months. On the McLachlin Court, the 0.56 major judgments per year for each judge other than the Chief Justice suggest a normal career total of only 7.25 judgments, which would take the average male judge twelve years and two months, but the average female judge fifteen years and two months.

I do not think it is fanciful to describe a judicial career in terms of the major judgments delivered. I have had the opportunity to speak to four justices or former justices of the Court, and when I asked them which of their judgments would be remembered and cited the longest, they had not the slightest hesitation in coming up with two or three prime candidates [1]. Judges contribute to manydecisions through their participation on panels, through the circulate-and-revise process, and through their minority reasons, but they are generally remembered for the majority judgments that they delivered on behalf of the Court.

VIII. CONCLUSION

In this article, I have looked at the assignment of reasons for judgment on the Court over the last three chief justiceships, with specific reference to the relative rate of assignments to male and female judges.

I have tried to distinguish between the total run of decisions and the more important ones—the top tenth—by using the criterion of subsequent citation by the Court itself. This is not a perfect differentiator, but it is both credible and objective, and it picks up on what is certainly one of the major identifiers of enduring significance. I have used this criterion even for the ongoing McLachlin chief justiceship by drawing on a broader theory of judicial citation that posits a constant decay rate in citation frequency.

Having identified a lower rate of participation on major decisions for female judges on both the Dickson and Lamer Courts, I noted an apparent reversal of this pattern under Chief Justice McLachlin. However, I then explored a Chief Justice factor in judgment assignment, on the not unlikely hypothesis that for institutional reasons Chief Justices deliver more than their notional one-ninth share of judgments, especially for the more important decisions. Adjusting for this factor (i.e., recalculating with the Chief Justices removed from the mix) not only restored the male/female gap, but suggested that it is more robust than ever.

The persistence of this pattern over three chief justiceships—the third Chief Justice a woman—suggests that there is more to this than the casual byplay of idiosyncratic personalities; something that may be structural and enduring, although I have identified other considerations that suggest that there may be factors at play other than gender alone.

To return to my opening question: Now that women are receiving an increasing share of the seats on the Court, can we conclude with confidence that they have been admitted to full participation, with a mix of judgments—including the more significant decisions—that is fully comparable to their male colleagues? I would have to suggest that the answer is no.

__________________________
[1] Intriguingly, when I asked them what set of reasons they were most proud of, they typically suggested a dissent.

 

 

 

Rejected Romantic Advance Led to Reprisal

Hank Peelle, the owner of Peelle Company Ltd., deluded himself into believing the company’s financial controller, Christine Horner, had a romantic interest in him, despite his 25-year marriage and her long-term relationship. When he thought the time was right, he tried to kiss her and she rebuffed him. Despite some genuine efforts to work it out, Peelle treated Horner differently and the relationship deteriorated. She resigned, making a claim of sexual harassment and reprisal against the employer.

In Horner v Peelle Company Ltd, the Ontario Human Rights Tribunal concluded that the employer’s actions breached the Ontario Human Rights Code.

This case provides a useful analysis of what constitutes sexual harassment, a sexual solicitation or an advance, and reprisal, under the Code.

Facts of the case

Christine Horner began working with Peelle Company Ltd. in 2001. She worked closely with the owner, chief executive officer and president of the company, Hank Peelle, for almost a decade. Peelle manufactures, sells and maintains freight elevator doors.

Horner and Peelle had many things in common, like their love of sports and fitness, and they became friends. Horner testified that she enjoyed a friendly business relationship with Peelle.

However, Peelle developed romantic feelings for Horner and tried to find reasons for them to spend time together. In his view, by the fall of 2010, his marriage was essentially over (but he was still married). By February 2011, he believed that Horner shared his romantic interest. In reality, Horner was completely oblivious to the romantic feelings and did not return them.

Feeling secure that Horner had romantic feelings for him, Peelle sent an email to her personal email address intending to declare his romantic feelings. The email, with the subject line “Egypt and Risk,” reads:

Is [it] ethical to deviate from our HR and employee policies if those policies imposed a barrier between us?

You know what a great thing a partnership can be. Experiences are richer when shared with the right person. We learn so much more when we feel, see and hear through another. Decisions and choices are much better when two in-sync people work together.

In a partnership, the other person is integral. Life is a mutual project. Yeh, I may not always like what you tell me, but I still incorporate it. In a partnership, telling is not a risk but a responsibility. Considering and acting are also responsibilities.

Does a partnership shift the issue from risk to responsibility?

Some revolutions occur at gunpoint. However, revolutions resulting in a partnership between people and politicians require both sides to undertake courageous acts (A single individual stepped up – Mubarek stepped down). In a democracy, partnership requires citizens willing to accept the responsibility of active participation. As you said, in Canada, there is little risk of acting; instead, we act because it is our responsibility. Even so, to act requires courage.

Does a partnership between two people require each person to undertake acts of courage? Yet, what kind of partnership can exist, if an act of courage tramples on ethics (see my initial question). How can we resolve the two?

Christine, I have seen and been in many relationships in my time. Going forward I will accept nothing else but partnership.

Horner took the “quite cryptic” email to be a continuation of a conversation they had regarding the political situation in Egypt. She did not understand the references to an HR policy and thought that she was being accused of not being cooperative at work. It never even crossed her mind that Peelle was declaring his romantic interest.

Horner responded to the email by saying she did not understand which policy he was referring to, but that the company should not deviate from the policies because they were there to ensure procedures were fair and equitable for everyone.

At their gym, on February 28, Peelle complimented Horner and then asked if he could kiss her. She moved backwards, stated they did not have that kind of relationship, and reminded him he was married and that she was in a long-term loving relationship. He revealed that he and his wife were separated and said that he was interested in her. However, they left the gym and agreed that things would just continue as before and nothing would change.

Peelle was shocked because he believed that Horner shared his feelings. Horner was upset that this even happened because she never gave any signals that she was interested in him. Within the next 24 hours, she sat down and created a written narrative of this event. She says she did this in case she needed to recall it at a later date and because she felt it was important to capture her feelings at the time. She also told her boyfriend what happened.

The next thing you know, things did change at work.

After Horner refused the advance, Peelle apologized and even encouraged her to make an internal complaint (which she chose not to do), and things returned to normal for a couple of months, but in Horner’s opinion, it was only the manner in which the work was done that returned to normal. In her view, Peelle dealt with the rejection by changing his pattern of interactions with her.

By the end of May 2011, there were no more business lunches or conversations about non-business interests like sports. There were fewer personal meetings and more email communications, and he would barely acknowledge her if she visited his office.

Horner confronted Peelle and offered to leave the company, but he reassured her that things could return to normal.

On October 20, 2011, Peelle and Horner met for their quarterly one-on-one meeting. Peelle told Horner that her pattern of interactions with him suggested she desired a personal relationship with him, which he knew was not the case. For instance, she was asking him about events he participated in, his running, his separation, and moving to Canada from the United States. He suggested boundaries and how he needed to be clear about their relationship so he could move on. He even went as far as saying:

“Now that you are aware, you can look for these patterns and change the content of your interactions with me.”

She told him she was surprised and offended because her questions always related to their work and the business.

Horner completely stopped mentioning anything outside of work because she was afraid of being accused of talking about things that were “personal.” She also stopped being a member of the Board of Trade and a finance committee to avoid social interaction with Peelle. The constraints on communication made it increasingly difficult for her to do her job and she admitted to making minor clerical errors she would not have made in the past because she was not as focused. It also affected her personal life as she developed heart palpitations and difficulty sleeping.

Horner realized that the work environment was unbearable and decided to resign. On March 30, 2012, she told Peelle she was resigning, stating “the environment was unworkable but she would stay for three months to help with the transition.” Peelle was angry and accused Horner of poor performance.

After Horner resigned on June 29, 2012, she brought a human rights complaint against the employer. She argued that she experienced sexual harassment in employment and reprisal for rejecting a sexual solicitation or advance from her employer.

Decision

The attempted kiss constituted a sexual solicitation or advance

This issue here was whether the attempted kiss breached s. 7(3)(a) of the Code; that is, did asking for a kiss constitute a sexual solicitation or advance?

In the tribunal’s opinion, there was no dispute that Hank Peelle wanted to pursue a sexual relationship with Horner and the kiss was part of this goal. He genuinely but mistakenly believed Horner would welcome his request for a kiss, but that did not satisfy s. 7(3)(a); despite his belief, he ought to have reasonably known that the conduct was unwelcome. He was married and she was in a long-term relationship, the business lunches were considered business expenses, their email communications were business-oriented, and so was Horner’s response to the Egypt email.

The tribunal stated that Hank Peelle “either put out of his head things he did not want to know, or did not think clearly and logically about things he could not deny.” Since the Peelle Company was responsible for Hank Peelle’s actions (he was the directing mind of the company), it was liable for the breach.

After the rejection of a sexual solicitation or advance, Horner experienced a reprisal

Peelle argued that he was not trying to retaliate by changing his behaviour. He was simply trying to return their relationship to the way it had been prior to the advance.

The tribunal found Peelle’s intention lacking. He took negative actions against Horner following February 28; the actions were related to her having rejected Peelle’s sexual solicitation or advance; and there was an intention to retaliate for the rejection of the sexual solicitation or advance. These actions included blaming Horner for his discomfort, falsely accusing her of inappropriate behaviour, and telling her not to say anything to him of a personal nature, among other things. His instructions caused Horner to put a filter on and be constantly on edge. These things were tacitly connected to the sexual advance.

The evidence established that Horner explicitly told Peelle that his changed behaviour after the rejected sexual advance was unwelcome. That behaviour is the essence of recklessness with respect to intent. Peelle was conscious of what he was doing, knowledgeable of the negative impact he was having on Horner, yet he persisted with the behaviour.

The above was sufficient to constitute an intention to reprise for the rejection of a sexual solicitation or advance.

Horner was not sexually harassed

The issues here were whether Peelle’s conduct constituted harassment as defined in s. 7(2) of the Code, and if so, whether or not the harassment was due to the applicant’s sex.

The Code defines harassment to mean engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.

The evidence establishes that after February 28, 2011, Peelle engaged in a course of conduct that included, among other things: the cessation of some business-related activities; a decrease in the amount and quality of supervisory personal interactions between the parties and an explicit blaming of Horner for Peelle’s inability to get over her rejection. There is no dispute that the employee found this conduct to be unwelcome.

Given the above, the tribunal was satisfied that Peelle knew or ought to have known that the behaviour complained of was unwelcome to Horner. However, was this conduct related to Horner’s sex or gender?

The tribunal found the behaviour complained about was not sexual in nature or related to the employee’s gender, but rather related to the nature of changes to Horner’s working environment and expected business activities. Thus, the tribunal did not declare a finding of sexually harassment.

Remedy

As a result of the breaches of the Code, Horner was awarded a total of $28,000 for injury to dignity, feelings and self-respect, $5,000 for the unwanted sexual advance, and also $50,219 for loss of earnings arising from infringements of the Code.

What can we take from this case?

Employers can take away from this case the need for company policies that deal with personal relationships with co-workers, sexual harassment and unwelcome conduct between employees, including the complaint, response and investigations process. This policy should be widely communicated to employees at the time of hire. Also, educate the entire workplace on what constitutes sexual harassment and what to do when it occurs.

In addition, companies are responsible when an agent of the company engages in misconduct such as sexual solicitation and reprisal. Therefore, it is in the company’s best interest to provide adequate training regarding human rights and appropriate respectful conduct in the workplace. This type of training can prevent these types of incidents from occurring.

Written with the assistance of Christina Catenacci, BA, LLB, LLM

The Replicability of Research’s Irrational Publishing Economy


After a year of sabbatical concentration and isolation spent working on a pre-history of intellectual property, it’s good to be back blogging on the here and now at Slaw. The book I finished (with a draft online) still needs work in its tracing of the intellectual properties of learning from Saint Jerome to John Locke. I’ll give it a blog or two later, point, but I’m keen to get back to what currently tickles and troubles learned publishing.

Certainly, the previous academic year has seen gains, if not tipping points, in favor of open access as the model and goal of research and scholarship. It is now the case that every federal agency in the United States with any sizable expenditure on research is required to have a public access policy to ensure that the public can view the research conducted in its name.

The open access mega-journal, pioneered by PLOS, continues to establish a new standard for the circulation of knowledge, through dozens of publishers, from Nature to the Royal Society. Here we see the positive knock-on effect of open access and online publishing, with much more efficient publishing of peer-reviewed research, based on the scientific competency of the work without the limits of space restrictions guiding judgments of significance and suitability. The mega journal is certainly not our parents’ journal piling up on the corner of their desks awaiting a browse, even as it suggest gains in the circulation of knowledge.

In fact, every segment of the scholarly publishing enterprise is toying with this new openness. Corporate publishers have open access options and open journals. Among scholarly societies, I had the pleasure this past year of being involved in an American Educational Research Association initiative that saw the launching, with SAGE, of the mega-journal AERA Open. This was the first new journal launched by this 24,000-member association since 1979. Change is afoot. AERA Open’s article processing charges (APC) are scaled back to better match the field’s research funding with $100 introductory APC for members. To put that in perspective, authors are now paying APC fees up to $3,000, if not beyond, for the publishing of an open access article in the sciences and among corporate publishing houses.

While the majority of the ten thousand open access journals do not charge authors such fees (see DOAJ), it is the APC that has drawn a whole range of publishers into open access, from for-profits to scholarly associations. For all of the radical changes, for the good I would argue, that open access has been introducing, many are troubled by the increasing prevalence of APC. It does appear to be on the verge of neatly reproducing what might be characterized as the exploitive irrationalities of the late twentieth-century print economy for scholarly journals.

What is irrational here is the stark disconnect between the price of a journal subscription and the quantity and quality of the articles it publishes. This has been well documented by Ted Bergstrom, an economist at UC-Santa Barbara, initially in 2001 and again just a few months ago in 2014. In this latest piece, Bergstrom et al. work with the pricing of the subscription bundles of the major corporate publishers, which they were only able to obtain through the Freedom of Information Act. Secretiveness is the friend of irrational economies. They built in a quality measure, be calculating the cost-per-citation factor, and found that corporate pricing was three times that of non-profit societies for the same quality of work. Yet this three-times factor was at tier one research universities, where the pricing for other universities was lower, based presumably on the assessed willingness to pay.

Of course, there is not shortage of reason to this irrational pricing model. And of course, the corporations that have thrived through this monopoly pricing in print, and then with online subscriptions, seek to reproduce this model again with APC. The question of the moment, then, is whether the research community can offer and organize itself around an alternative approach to highly profitable irrationality. No one is questioning the essential and beneficial nature of the publishing services at issue. Rather, we ask only what would it take to begin to rationalize this economy. For what is irrational about this economy cannot help but appear to be an exploitive drain on research and scholarship funding.

We might begin by working with publishers to arrive at a fair and competitive market pricing for publishing an article (including platform costs and investments in future improvements), rather than replicating monopoly pricing determined by discipline grant levels. This might, in turn, call into question the extent to which the circulation of knowledge should carry the financial burden of increasing shareholder value or subsidizing the operation of scholarly societies. It might lead to looking at system-wide pricing to reduce transaction costs given this shared and common interest among funders in community and public access to this body of knowledge. This is only to ask whether we can move, this time, beyond this tradition of irrational pricing to some form of rational choice in how best to circulate and grow what we know.

Part-Time Lawyer, Full-Time Juggler

Later this week, I’ll be talking with articling students in the Law Society of Manitoba’s CPLED program as part of their practice management curriculum. My assigned topic is stress management, and includes the sub-topic of work/life balance.

I’m certainly no expert on work/life balance though I do write about it from time to time and practice it daily. In fact, I struggle constantly with keeping some sort of balance to my own life. As a part-time freelance lawyer, frequent volunteer and full-time mother, I know what it is to juggle conflicting priorities, responsibilities and obligations while trying to do it all in way that demonstrates some degree of competence.

I’ve heard countless presentations on the subject and have read even more. My key takeaways on the subject are these:

  • Not every task I take on needs to be completed to a standard of perfection. In fact most of the time, good enough is good enough.
  • Time needs to be allotted every day to keep my body functioning effectively. This, for me, means setting aside time to get outdoors and walk. Happily, my dogs are always ready to join me. It also means taking a break for a snack or a meal before my blood sugar levels get so low I can’t think clearly.
  • Vacations are not optional and ideally, the next one should always be planned before the current one ends. Whether spent at home or abroad, these breaks are necessary for my mental health.
  • When I take a break from work, whether on the weekend or on vacation, it needs to be a genuine break. It won’t be nearly so effective or rejuvenating if I remain tied to my work.
  • Structure your life so you have time to say yes to the things you want to say yes to. If you relish the work you are doing, whether for your self, for you family, for your community or for your clients, you will be able to more easily maintain a feeling of balance.
  • Conversely, when no feels like the right answer, listen to your gut and say it as boldly as you’re able. I’ve learned this the hard way.
  • Accept that you cannot control every aspect of your schedule. Keep a firm grip on what you can control and come to peace with those commitments and obligations that are out of your hands and in someone else’s.
  • If having more control of your schedule is important to you, you need to understand that it may come with tradeoffs, including less long-term certainty and reduced income.
  • Make time for your friends and family as often as possible and when you do, give them at least the same level of focus you give to your paid work. Relationships are essential to a balanced life and need regular “feeding and watering” to thrive.

What would you tell articling students about managing stress and maintaining balance in their lives?

The Unconscious Barrier to Equality


Before reading: (1) think of four colleagues (some male and some female), and (2) consider the first adjective that pops into your mind to describe each of those colleagues. Now continue reading.

….

I am a feminist. I know, I just heard a collective internal groan from the internet. But, like most feminists (and most people), I’m not a bra-burning, Thai fisherman pant-wearing, men-hating, razor-neglecting aggressor. Rather, I hold the simple belief that women and men should be treated equally. (And I am happy to report that I am part of a significant majority in Western society.) Unfortunately, I recently learned that my conscious belief in equality has not fully transformed my unconscious biases. Not only am I a feminist, but I am also a “gender profiler”.

On August 26, 2014, Fortune Magazine published an article by Kieran Snyder entitled “The abrasiveness trap: High-achieving men and women are described differently in reviews”.[i] The article summarized findings of a study that compared the tone and content of employees’ reviews in the tech industry based on the employees’ gender. 248 reviews were collected from 180 people: 105 men and 75 women. The results were staggering:

  • 58.9% of the reviews received by men contained critical feedback in comparison with 87.9% of the reviews received by women;
  • 75.5% of the women’s critical reviews contained negative feedback in comparison with only 2.5% of the men’s critical reviews (i.e. 97.5% of the men’s critical reviews had only constructive feedback);
  • The critical feedback received by men was heavily geared towards suggestions for additional skills to develop. Critical feedback for women was predominantly focused on negative personality critiques. In fact, only 2% of men’s reviews contained a negative personality critique in comparison with 76% of women’s reviews;
  • The above results were the same whether the reviewer was male or female; and
  • The words bossy, abrasive, strident, aggressive, emotional, and irrational were used repeatedly to describe women (with abrasive used 17 times alone). Among those words, aggressive was the only term used in men’s reviews (and was only used 3 times).

In short, men received performance reviews, women received personality critiques.

Although the study focused on the tech industry, I am certain similar (if not more staggering) results would be found in the legal industry. In fact, after reading the article, I considered the words I would use to describe some of my colleagues. Despite my determination to prove that I am more enlightened that the reviewers in the previously mentioned study, the first adjectives that popped in my mind to describe certain female colleagues were all personality-based, while the adjectives for male colleagues were all performance-based. I unconsciously judged my colleagues differently based on their gender.

The gender profiling issues highlighted above are not novel. In July 1943, Transportation Magazine published an article entitled “1943 Guide to Hiring Women” which enumerated eleven tips on “getting more efficiency out of women employees”. [ii] The tips included these gems:

#2: Older women who have never contacted the public have a hard time adapting themselves and are inclined to be cantankerous and fussy. It’s always well to impress upon older women the importance of friendliness and courtesy.

#3: General experience indicates that “husky” girls – those who are just a little on the heavy side – are more even tempered and efficient than their underweight sisters.

#8: Give every girl an adequate number of rest periods during the day. You have to make some allowance for feminine psychology.

#9: Be tactful when issuing instructions or in making criticisms. Women are often sensitive; they can’t shrug off harsh words the way men do.

(The other seven tips are equally entertaining and distressing).

In 1979, a study concluded that when a woman’s contribution to a conversation exceeded 30%, she was perceived as dominating the discourse.[iii] More recently, Sheryl Sandberg summarized a social experiment in her best-selling book “Lean In: Women, Work and the Will to Lead”.[iv] In the experiment, two resumes were presented to various people. The resumes are identical except that one was for a female candidate and the other for a male candidate. In most cases, people found the success of the male candidate to be appealing and the success of the female candidate to be worrisome.

While our policies and formal approaches to gender equality in the workplace have evolved significantly since 1943, our unconscious biases have not. The 1943 tips to hiring women may seem shocking, but our evaluation of women’s work performance still predominantly focuses on personality and psychology. The majority of Western society may hold the conscious belief that men and women should be treated equally, but our subconscious does not share that belief.

The question then is: How do we reshape our unconscious biases? There is an unending array of literature dedicated to assisting with just that. Invariably, the most effective method is to make our unconscious biases conscious. [v], [vi] As your first step towards consciousness, consider how you described your female and male colleagues before reading this article.

By Kate Saunders

_____________________

[i] Kieran Snyder, “The abrasiveness trap: High-achieving men and women are described differently in reviews”, (August 26, 2014) Fortune: http://fortune.com/2014/08/26/performance-review-gender-bias/

[ii] “1943 Guide to Hiring Women” (September/October 2007) Transportation Magazine: http://www.kcl.ac.uk/aboutkings/governance/equality/networks/womens/meetings/hiringwomen1943.pdf

[iii] Kira Hall and Mary Bucholtz, Gender Articulated, (New York: Routledge, 1995) at p. 92

[iv] Sheryl Sandberg, Lean In: Women, Work and the Will to Lead (New York: Random House, 2013)

[v] Howard Ross, “Proven Strategies for Addressing Unconscious Bias in the Workplace” (August 2008), vol. 2, issue 5, CDO Insights: Diversity Best Practices: http://www.cookross.com/docs/UnconsciousBias.pdf

[vi] Project Implicit provides a number of tests that assist with identifying your unconscious biases in relation to gender, race, religion, sexuality, etc. They can be found at: https://implicit.harvard.edu/implicit/takeatest.html

Wednesday: What’s Hot on CanLII


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. Bhasin v. Hrynew, 2014 SCC 71

[1] The key issues on this appeal come down to two, straightforward questions: Does Canadian common law impose a duty on parties to perform their contractual obligations honestly? And, if so, did either of the respondents breach that duty? I would answer both questions in the affirmative. Finding that there is a duty to perform contracts honestly will make the law more certain, more just and more in tune with reasonable commercial expectations. It will also bring a measure of justice to the appellant, Mr. Bhasin, who was misled and lost the value of his business as a result.

2. R. v. Dunn, 2013 ONCA 539

[14] As mentioned, this appeal turns on the proper interpretation of the terms “firearm” and “weapon” in the Criminal Code. There is only one issue in this appeal: must an object (to use a neutral word) that falls within the definition of “firearm” in s. 2 also meet the definition for “weapon” in the same section. The interpretation issue arises from the fact that each definition refers to the other.

3. Hazelton Lanes Inc. v. 1707590 Ontario Limited, 2014 ONCA 793

[2] Even though the trial had consumed so much court time, the trial judge did not decide the case on the merits.

[3] Instead, on what was to have been day 36 of the trial, he permitted the respondents to add several defendants and new causes of action, including fraud and conspiracy. In addition, he granted to the respondents an ex parte Mareva injunction against the appellants and the added parties based on findings that all had engaged in a “fraudulent scheme” to hide assets.

The most-consulted French-language decision was Payette c. Guay inc., [2013] 3 RCS 95, 2013 CSC 45

[1] Les clauses restrictives en matière d’emploi et de concurrence font partie intégrante du droit civil depuis de nombreuses années. Elles prennent généralement la forme de clauses de non-concurrence et de non-sollicitation, et tant le droit prétorien que le législateur du Québec en ont cerné les limites après en avoir reconnu les fondements.

[2] Selon que ces clauses se trouvent dans une entente commerciale ou dans un contrat de travail, leur interprétation commande l’application de règles distinctes. Ces règles seront plus généreuses en matière commerciale, mais par contre beaucoup plus strictes en matière d’emploi ou de louage de services.

* 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.

Big Data, Small Data

Sole practitioners often struggle to find and interpret meaningful practice data that points business-building efforts in the right direction.

New practice management software with great reporting features helps many lawyers find personalized information in an instant. But old habits – such as not bothering to look at the data on a regular basis or do anything about it – can be difficult to overcome.

Obviously, it’s necessary to be aware of your financial performance. Regular conversations with your accountant highlight cash flow, operating costs and, hopefully, profitability.

But there’s more to it.

I have a client who asks herself a set of questions each November, after reviewing her year-to-date financials. The answers set the direction and boundaries of her business development efforts for the year ahead.

  1. Who are my clients?
  2. Which services do they retain me for?
  3. Why me and not another lawyer? Can I validate my answers to this question?
  4. Which clients pay their invoices at which rates?
  5. Which clients frustrate me and why? What could I do about it?
  6. What new, unexpected clients have I retained this year? Which ones did I enjoy working with and learn from? Can this be leveraged? Does anyone else know I’ve now done work in this area? Should they?
  7. What will reduce my level of stress next year?

If you think this is an amateur way to create a business plan, you might be right. Here’s what happened when I did the exercise for myself:

  • 30 minutes to answer the questions
  • 20 minutes to validate and review the data I had on hand
  • 15 minutes weighing options to act on one of the opportunities, rather than talk myself out of it
  • 10 minutes to write to a trusted client who could (and did) help

That’s it. Not exactly an expensive or expansive process. Within a week, it led to three introductions, three meetings and one new client who entrusted me with exactly the type of project I was looking for. That’s data I can take to the bank. And that’s the kind of data I like.

Frequently Asked Questions (And Answers) on BC Lawyers’ Use of Cloud Computing

It’s coming down, it’s coming down, it’s coming down
These clouds could never hope to save us…

Lyrics, music and recorded by Thrice.

On Nov. 17, 2014 Jack Newton posted on Slaw: “Did the LSBC Just Kill Cloud Computing for Lawyers in BC?

To set the record straight, the death of cloud computing for BC lawyers has been greatly exaggerated. In fact, quite the opposite is true. Cloud computing for BC lawyers is alive and well. What the Benchers have recently done is adopt rule changes based on the report and recommendations of the Cloud Computing Working Group.

The amendments address three areas:

  • the requirements for electronic data storage and processing;
  • producing records in a complaint investigation or forensic audit; and
  • third-party storage providers and security.

While these rule changes (principally 10-4 and 10-5 of the Law Society Rules ) permit the Executive Committee, by resolution to declare that a specific entity is not a ‘permitted storage provider’ for the purposes of compliance with this rule, no such entity has been so declared.

Accordingly, I would like to deal with the following questions and issues that have been raised concerning the use of cloud computing resources by BC lawyers:

 

Q: Is the Law Society of BC against the use of Cloud Computing by Lawyers?

A: The Law Society of BC Benchers have just recently adopted rule changes that were created to give effect to the recommendations in the Cloud Computing Working Group Report (January 2012). To the writer’s understanding, this Report represents one of the leading examinations of the use of cloud computing resources by lawyers by any regulator. Lawyers in BC who wish to use cloud computing resources are referred to the Cloud Computing Checklist for specific guidance of the issues that should be considered before moving data to the cloud. To the writer’s knowledge this Checklist is a leading document and represents one of the first comprehensive overviews of the issues for a lawyer to consider before moving client data into the Cloud. The Report, Recommendations and Checklist highlight that The Law Society of BC has and continues to provide thoughtful leadership to the lawyers of BC on the adoption of new technologies.

 

Q: What guidance is there for BC lawyers looking to use Cloud Computing?

A: The Cloud Computing Report supports the idea that the Law Society regulates lawyers, not technology. It is up to the lawyer to determine whether it is appropriate to use any particular technology in the circumstances, recognizing that the professional responsibilities of a lawyer will continue. This places cloud computing on an equal basis with regard to a lawyer’s use of services such as: bookkeeping, accounting software, IT consultants or any other provider of services to a lawyer or law firm. As such, the Law Society expects lawyers to engage in due diligence when using any service provider that handles, stores or processes client records, whether those records are in paper form or electronic. The Cloud Computing Checklist is designed to provide a list of considerations for a lawyer contemplating moving data to the cloud. Lastly the Practice Advice Department at the Law Society is available to discuss a lawyer’s use of cloud computing.

 

Q: Are BC Lawyers prohibited from using US-based Cloud Computing Providers?

A: There is no prohibition against using services in which servers are located outside Canada. However, the lawyer must ensure use of the service complies with any legal limitations on where the records can be stored. Consider, for example, s. 30.1 of the Freedom of Information and Protection of Privacy Act, RSBC 1996, Chapter 165. If the lawyer acts for clients who are prevented from storing data outside of Canada, this will be a very important consideration when thinking about the law firm’s use of cloud resources. The Checklist and the report highlight that lawyers’ obligations to preserve and protect privilege and confidentiality do not disappear; accordingly the checklist provides questions to consider when choosing a service so the lawyer can be satisfied the client’s information is protected. A lawyer should disclose to their clients that they use cloud computing resources and that the client’s data may be stored outside of Canada, preferably by incorporating this into the law firm’s retainer agreement. In the writer’s view, informed client consent is an integral part of responsibly using cloud computing resources by a law firm.

 

Q: Does the Law Society prohibit the use of non-BC based cloud computing providers such as Google or Dropbox by lawyers?

A: The Law Society neither endorses nor rejects the use of specific products. However, if the Law Society discovers during the course of exercising its regulatory function that lawyers who use certain services are unable to comply with the rules for disclosing records, either because the service provider refuses to assist with the regulatory disclosure or is incapable of providing the records, the Law Society can disapprove the use of that service for lawyers. But at this time, no cloud provider is so prohibited by the Law Society.

 

Q: What has changed in BC regarding cloud-based computing?

A: In my view, the changes that the Benchers have made to the Law Society Rules are in respect to the regulatory work that the Law Society is mandated to perform on behalf of acting in the public interest and how storing data in the cloud may impact that work.

For example, a lawyer who is required under Rule 3-5 [Investigation of complaints] or 4-43 [Investigation of books and accounts] to produce and permit the copying of files, documents and other records, provide information or attend an interview and answer questions and who fails or refuses to do so is suspended until he or she has complied with the requirement to the satisfaction of the Executive Director (See more at: http://www.lawsociety.bc.ca/page.cfm?cid=982&t=Law-Society-Rules-Part-3-Protection-of-the-Public#3-5-01).

The Law Society must have access to the files, documents and other records of a lawyer under investigation. If those files, documents and other records are stored, either in paper form or electronically, in a way that prevents the Law Society from gaining access to those files, then the rules envision a process by which lawyers who are unable to provide such requested records can be suspended until able to do so.

In particular, Rule 10-4 (4) contains provisions that a lawyer needs to consider when using any cloud provider. They are:

(4) A lawyer must not maintain records, including electronic records, with a storage provider unless the lawyer

(a) retains custody and control of the records,

(b) ensures that ownership of the records does not pass to another party,

(c) is capable of complying with a demand under the Act or these Rules to produce the records and provide access to them,

(d) ensures that the storage provider maintains the records securely without

(i) accessing or copying them except as is necessary to provide the service obtained by the lawyer,

(ii) allowing unauthorized access to or copying or acquisition of the records, or

(iii) failing to destroy the records completely and permanently on instructions from the lawyer, and

(e) enters into a written agreement with the storage provider that is consistent with the lawyer’s obligations under the Act and these Rules.

These are new provisions but the concepts are not new. No lawyer would store records – paper or electronic – with a provider that accessed them or copied them except as necessary to provide the service to the lawyer. No provider would be permitted to gain unauthorized access to the lawyer’s records whether they are in paper or electronic form. Furthermore, when a lawyer destroys records he or she needs to know that these records have been completely and permanently destroyed – regardless if these records are in paper form or electronic. What the Benchers have done is made it clear that these responsibilities apply when records are stored with a cloud provider and that the lawyer must comply with them.

The Law Society has simply updated their Rules to incorporate the potential use of cloud computing by lawyers and the requirement for the Law Society to have access to the records of the lawyer should the need arise, no matter where those records may be stored. Furthermore, the Law Society has confirmed that a lawyer’s responsibilities apply equally no matter how a lawyer chooses to store their records, whether in paper or electronic form.

The LSBC’s cloud computing checklist is designed to ensure lawyers turn their minds to the ability to comply with audits and investigations by the Law Society, while using technology.

Any questions on the use of cloud computing resources by BC lawyers can be directed to the writer at the Practice Advice Department at the Law Society.

With respect, the writer submits that BC lawyers’ use of cloud computing resources has not in fact come down and that indeed, these clouds can in fact save us a great deal of time, energy and resources.

(The writer gratefully acknowledges the assistance of Doug Munro, staff lawyer at the Law Society of British Columbia who, along with the writer, are the authors of BC’s Cloud Computing Checklist, based on the ground-breaking work of the Bencher’s Cloud Computing Working Group.)