Goodbye QPLegalEze; Welcome Open Law

April launched an exciting development for BC legal researchers and for the open law and open data movements. QP LegalEze, the BC Queen’s Printer’s deep and highly functional subscription service for current and some historical legislative information, is no more. Or, more accurately, it is by subscription no more.

All of its content and functionality now is available through BC Laws, the free site also offered by the Queen’s Printer:

BC Laws has been upgraded to provide enhanced searching and more content including historical legislation and related publications such as BC Gazette, full text Orders-in-Council, and Tables of Legislative Changes. All content is delivered in an “open data format” and restrictions on commercial and non-commercial use of the data have been changed (read more).

Some jurisdictions—Ontario and the federal, for example—have offered free and more or less current access to primary law for years, with some depth of historical content and ability to manipulate searches to locate the law at particular points in time. Other jurisdictions, like BC, have offered excellent historical and current legislative content by paid subscription, with a limited range of primary content available on companion free sites. And opening up the data is a great new step.

If freer access to primary law were not a good enough thing, it’s wonderful and exciting that the content on BC Law—all of it—is delivered as open data, under a Queen’s Printer License. The license enables, among other activities, full and partial content reuse and publication for commercial and non-commercial purposes, subject to appropriate conditions. To this end, the Queen’s Printer has also released access to the API underlying BC Laws.

So BC legal researchers, rejoice, and API programmers, get busy.

 

Is Wearable Tech Dead?

Nike just announced that it is exiting its FuelBand fitness tracker business.

Another article claims that “it’s only a matter of time until [Google Glass] joins devices such as the Zune, the Kin, the PlayBook, and the Xoom in tech hell.”

Despite musings that wearable tech is dead and dying, these are just growing pains.

Wearable devices are still in an early bleeding edge phase where manufacturers and users are trying to figure out what works, what users want, what users find creepy, and what users are willing to pay for.

Take Google Glass, for instance. I have no doubt that there is a future for head mounted display devices. The unknown is how popular they will be beyond niche uses for things like surgeons, mechanics or others needing to see and send information while they use their hands.

Fitness trackers have been compared to January gym memberships – many tend to use them for only a short time before abandoning them. There may be a limit to sales of one function devices, but there is more promise to multifunction devices. One potentially interesting market is for wearable devices that stretch beyond fitness tracking to medical tracking.

Wearables are not dead – but perhaps are in the “trough of disillusionment” in the Gartner Hype Cycle.

hype cycle

The Dangers of Social Networking and How to Avoid Them

Although social networking tools offer lawyers many interesting new ways to interact with people in both personal and work spheres, there are some risks associated with using them. Before you venture into social networking, consider Section 5.5 of the Law Society’s Practice Management Guideline on Technology (“Technology Guideline”). It states, “Lawyers should have a reasonable understanding of the technologies used in their practice or should have access to someone who has such understanding.”

Don’t talk to or about clients or their matters

Social networking tools have complex and confusing privacy settings and most people are not entirely sure who can see the content they are posting. and blurting out something about a client on any social network, in particular anything sensitive or confidential, is a bigger blunder than the proverbial comment on an elevator because hundreds or even thousands of people can potentially access the information. Keep in mind Rule 2.03 of the Rules of Professional Conduct which states, “Lawyers using electronic means of communications shall ensure that they comply with the legal requirements of confidentiality or privilege.” This rule clearly applies to social networking activities. It is tempting, and potentially very helpful, to toss out a question or seek strategic advice on a social network, but remember, even generic questions or comments about a matter you are handling could be read and recognized by someone involved with the matter. at the more social end of things, confirming a lunch date is probably not a problem – unless the fact you act for the client is confidential. and in that case you shouldn’t even be “friends” with the client.

Know and respect the marketing related Rules of Professional Conduct

When using social networks make sure you comply with Rule 3 and the other guidelines which govern the marketing and advertising of legal services. Section 5.8.2 of the Technology Guideline states that, “Lawyers making representations in generally accessible electronic media should include the name, law firm mailing address, licensed jurisdiction of practice, and email address of at least one lawyer responsible for the communication.” This information is on most websites and blogs, but is often overlooked on Facebook pages and Twitter bios (and it won’t fit in a tweet!). You are free to offer your services via social networking tools, but keep in mind the restrictions on contacting recovering or vulnerable potential clients, distributing electronic advertisements directly and indiscriminately to large numbers of people.

Avoid the unauthorized practice of law

Lawyers need to appreciate that any content they post on the Internet can easily be accessed from anywhere in the world. Ontario lawyers practising law in other jurisdictions by providing legal services on the Internet should respect and uphold the law of the other jurisdiction, and not engage in the unauthorized practice of law. If you include the jurisdiction in which you are licensed to practise in your online content and posts, your clients will understand where you can and can’t practise.

Avoid conflicts of interest

The very nature of social media makes you more vulnerable to conflict of interest situations. Much of the information posted on social networking sites is public, and people frequently use an email or online name that is shortened or different from their usual name when communicating online. To avoid conflicts of interest when using social networking tools, lawyers should take reasonable steps to determine the actual identity of people they are dealing with and be very careful about what information they share.

Don’t give legal advice AKA avoid phantom clients

Providing legal information is fine, and indeed is helpful when you are looking to market yourself. However, you should be very careful never to give legal advice online. Unfortunately, the information/advice distinction can become quite blurred when a lawyer and non-lawyer communicate online, especially when the lawyer is providing answers to specific questions posed by a client. a lawyer-client relationship can be formed with very little formality. Be cautious about saying anything online that might be construed as legal advice. Include a disclaimer on your blog and within any information you post online. and remember, in Ontario the onus is on the lawyer who seeks to limit the scope of the retainer, and if there is an ambiguity or doubt, it will generally be resolved in favour of the client. Having a record of what was said or not said in a social networking exchange could help you defend yourself against a claim that you gave legal advice online.

Protect your identity

One of the hidden risks of social networking is identity theft. Social network profiles can include information such as your birth date, university, mother’s maiden name, etc. This information is often the answers to standard challenge questions that banks, credit card companies and others use to verify your identity. Someone intent on stealing your identity could visit social networking sites and gather information about you. Having your identity stolen can have severe consequences. It’s not only stressful to have to restore your true identity, but also takes time and money and can leave you with a bad credit rating. The lesson is clear: don’t help a fraudster steal your identity.

Be polite and professional

With search tools such as Google, the vast Internet becomes a small town. with a few clicks your existing and potential clients can easily find almost everything that you ever said or posted on the Internet. It can be extremely difficult if not impossible to delete information once it is posted online. For these reasons you want to be civil and professional in all your online activities. Use proper spelling and grammar. avoid using short forms for words. Exercise good manners and be polite. a good rule of thumb: Don’t say anything you wouldn’t say in person or that you would not want your mother to read on the front page of the newspaper tomorrow morning. and never ever start or continue a “flame war” – an ongoing sequence of hostile messages between two or more people. By their nature, flame wars attract a lot of attention, making it even more likely a client will find them. And be careful with social networks that post information about what you are doing online.

Making the wrong friends

In the world of social networking, people you have never met will want to be your “friend.” It’s nice to be popular, but there are differences between real friends and virtual friends. Knowing more people is great when it comes to marketing, but as the degrees of separation increase from you, two connected people will know less and less about each other, and the potential for a referral also becomes less likely. Think strategically about whom you want to be friends with and be careful not to be friends with someone who could embarrass you. For example, if you are a litigator, you probably don’t want to be friends with any judges or experts, as it wouldn’t look good to your opposing counsel. Ethics panels in the United States have said it is not proper for lawyers to become friends with someone to dig up information about them for use in a litigation matter. To decide whether to accept an invitation to be a friend, you need to consider the nature and purpose of the particular social network. It may be fine to cast a wider net on some networks. However, on more professional or personal networks, you will want to be more selective. Consider these general approaches:

  • Invites from people you just don’t know: Yes on Twitter; no on Facebook or LinkedIn.
  • Invites from people you know by name only: Yes on Twitter and LinkedIn; no on Facebook.
  • Invites from people you barely know: Yes on Twitter and LinkedIn; judgement call on Facebook.
  • Invites from people you know but don’treally like or respect (or want to be associated with): These can be awkward, but it is best to say no thanks or just ignore them.

Don’t blur your personal and professional lives

When Facebook was almost entirely a personal social network, it was easier to keep your personal and professional online presences separate. Now that many social networking tools are becoming connected and taking on more of a commercial aspect, it is becoming much harder to have separate online identities. People are using different strategies to deal with this. Some refuse to have a personal presence on Facebook as they feel it is almost impossible to keep a private “personal” site. For the personal safety of family and loved ones, most criminal lawyers post nothing personal online. Others will lock everything up and only link to their close personal friends. and some are creating a personal site for only their closest friends, and a fan page for business or professional contacts. On sites that are more commercial or professional, people will put up business information and be careful about how much personal information they post.

Common Practice Pitfalls and How to Avoid Them

Lawyers Professional Indemnity Company (LAWPRO) was created to insure lawyers against legal malpractice claims. Most (though not all) claims are brought by a lawyer’s own client and include an allegation that the lawyer made a mistake or did not meet the standard of care expected of him or her when delivering legal services.

No lawyer is immune to a claim; in fact, our records suggest that four out of every five lawyers will be the subject of a claim at one point in their career. Malpractice claims can be stressful, can hurt your reputation, and can be costly (even if the only financial consequence to the lawyer is an increase in insurance premiums).

Understanding the most common causes of claims so that you can build risk management skills early in your career is your best line of defence. So what kinds of mistakes lead to claims? Client communication, inadequate investigation and time management. Click here to read the full article.

There’s No Place for the Law Society in the Bedrooms of Its Members

The Law Society of Upper Canada’s Rules of Professional Conduct are necessarily ambiguous on the subject of sex with clients to allow for some flexibility, given the highly subjective nature of these conflicts. Such acts are not specifically prohibited, but are referenced in the commentary at rule 2.04 governing conflict of interest. The rule states that a lawyer shall not continue to represent a client where there is a conflict of interest, unless there is full disclosure and informed consent.

However, the wording of the commentary merely suggests that when a relationship with a client becomes intimate, a member should consider a number of factors before continuing with the retainer, and should recommend independent legal advice in some cases. The case of LSUC v Hunter provided some insight for reconciling the apparent disparity between the rule for avoiding conflicts and its commentary, which addresses intimate relationships specifically. The judge noted that it was “not the case or the forum to debate whether the existing Rule is sufficiently broad or inclusive”,[1] allowing for this writer to discuss how the rules in their current form are as broad and inclusive as they ought to be.

It is not the role of the Law Society to presume absolutely that clients are exploited from sexual relationships. Hunter referred to the case of LSUC v Joseph in detailing the inherent dangers of engaging in sexual relationships with clients. One such danger is the difficulty in evaluating a vulnerable client’s consent that may be rooted in their dependence on the lawyer’s representation and support.[2] Although it is an inherent danger, exploitation is a sexual harassment matter covered by Rule 5.03 and ought to be treated as separate and distinct from conflict of interest concerns.

Of particular relevance is subsection 5.03 (1)(b), which defines sexual harassment as arising “when submission to such conduct is made implicitly or explicitly a condition for the provision of professional services”. But harassment situations are more effectively evaluated on a case-by-case basis due to the relevance of circumstances in assessing whether there has been any wrongdoing. The power dynamic of a lawyer-client relationship is distinguishable from classic sexual harassment cases between employer/employee because it is the lawyer who works for the client. Lawyers can, in fact, be victims of a client’s exploitation where the power balance is perceived, by either party, to be in the client’s favour. An absolutist approach to policing intimate relationships can run the risk of punishing lawyers who do not effectively exploit their clients.

A sexual relationship with a client does not necessarily preclude their objectivity, and should not be viewed any differently from the experiences shared with a friend or family member whom the lawyer represents. A lawyer is not expected to sever ties with a client when a friendship is established over the course of their professional relationship, as is often the case. A friend with whom the lawyer has shared an intimate relationship in the past raises the same concerns as a friend who has never been intimate with the lawyer. To include the salacious details of these relationships within the Rules of Professional Conduct would only create an arbitrary distinction.

Lawyers have a duty to act in the best interests of their client regardless of their personal feelings towards them. To illustrate this point, an ancient Greek military unit known as the Sacred Band of Thebes consisted entirely of homosexual soldiers whose courageously ambitious efforts in battle were said to be motivated by their intimate relationships with one another. The same idea applies to the lawyer-client relationship, where the will to protect one’s client can even be strengthened by an intimate relationship. It does not necessarily conflict with the duty to provide independent and objective representation when it is in the best interests of one’s client to do so.

A lawyer compromises the objectivity and independence of their representation where, for example, a legal relationship is unnecessarily prolonged in order to extend a sexual one. But lawyers may be motivated to do so in the mere pursuit of an intimate relationship with a client. The Law Society is limited in its ability to police its members’ feelings towards their clients, and to create a distinction for actual cases of intimacy would be arbitrary and perverse.

Inevitably, one or both parties end up being hurt by the severance of an intimate relationship. But where relationships go awry and bitter feelings permeate, it is common sense on the part of both parties to sever professional ties with one another. It is also a reality of the profession that lawyers are required to work for unsympathetic clients whom they simply do not get along with. Setting one’s personal feelings aside can be a challenge for many lawyers, but not one that is unique to conflicts arising out of intimate relationships.

The scope of Rules 2.04 and 5.03 sufficiently address the dangers raised by intimate relationships between lawyers and clients without arbitrary distinctions and unnecessarily punishing lawyers. The Hunter case demonstrates that the rule is rightly concerned with a lawyer’s character more than an uncharacteristic moment of weakness. The fact that the relationship did not appear to affect Hunter’s legal duties played a factor in the court’s decision to impose a fairly reserved penalty.

In distinguishing the Hunter case from the prior case of Joseph, the court noted the importance of flexibility by stating, “…while the principles in the Joseph case do inform our decision here, we make the not uncommon observation that each case spins on its own facts”.[3] Law firms are ultimately better suited to handle the salacious matters of their partners and associates than the Law Society, who ought to be more concerned with policing conflicts of interest generally.


[1] Alice Woolley et al, Lawyers’ Ethics and Professional Regulation, 2d ed (Markham: LexisNexis Canada Inc., 2012) at 350.

[2] Ibid at 353.

[3] Ibid at 352.

The author is a first year student at the University of Ottawa Faculty of Law and wrote the essay for Professor Dodek’s course on Legal Ethics.

Rocking the (Bencher) Vote

Voting is now underway for the Law Society of Manitoba’s 2014 Bencher election and will continue until May 6 at 5:00 p.m. As has been the case for the past several elections, voting takes place electronically. It’s a good system in that it works effectively and efficiently, at least from this voter’s perspective.

The Benchers function as the board of directors of the Law Society of Manitoba. The composition of this board is set out in s. 5 of The Legal Profession Act as follows:

  • 10 practising lawyers elected for the City of Winnipeg Electoral District;
  • 2 practising lawyers elected for the Western Electoral District;
  • 1 one practising lawyer elected for each of the Northern Electoral District, the Dauphin Electoral District, the Central Electoral District and the Eastern Electoral District;
  • 1 articling student;
  • the immediate past president of the society;
  • 4 persons appointed under section 7 representing the public interest;
  • the Minister of Justice and Attorney General of Canada and the Minister of Justice and Attorney General of Manitoba, by virtue of their offices;
  • the Dean of the Faculty of Law of the University of Manitoba, or, if the Dean ceases under the rules to be a bencher, another member of that faculty who is appointed by the faculty to fill the vacancy; and
  • where applicable, any person appointed under the rules to fill a vacancy in the office of an elected bencher.

After nominations closed earlier this month, the Law Society distributed voting information along with brief and often interesting biographical information on all the Bencher candidates. Benchers in the Central, Dauphin and Western districts were elected by acclamation. Voting is ongoing for 9 Bencher positions in Winnipeg and 1 in the Northern Electoral District.

As the governing board for the legal profession in Manitoba, the mandate of the Benchers is broad. The Act sets out that

“The benchers shall govern the society and manage its affairs, and may take any action consistent with this Act that they consider necessary for the promotion, protection, interest or welfare of the society.”

The role of Benchers in self-governance of the legal profession is critical. Issues ranging from professional discipline to continuing professional development to trust accounting rules and the Code of Professional Conduct fall within their purview. As well, their decisions can have a substantial impact upon how legal services are delivered across the jurisdiction.

For all of these reasons, the bi-annual Bencher election is a significant event.

Participating in a Bencher election through voting provides an opportunity for practising lawyers to exert influence upon the direction in which the legal profession is moving on issues such as access to justice, law firm business structures, and new ethical rules and standards. Yet, voter turnout is often disappointing.

For me, the Bencher election also provides an opportunity to enhance the diversity and gender balance of those who govern our profession. In the past several elections, I have intentionally cast my ballot with an eye on increasing the proportion of Benchers who are women. A strategic vote in a Bencher election can be an effective tool to address the ongoing concerns regarding retention of women in private practice and gender imbalance on the Bench and in leadership positions.

If you’re a Manitoba lawyer reading this, I hope you’ll be motivated to take a few minutes to review the candidate bios and then will vote, if you’ve not already done so.

The Perpetuation of Problems in the Public Perception of Legal Professionals: an Analysis of the Erroneous ‘Mitigating Factors’ in Law Society of Upper Canada v. Hunter

For Ontario’s self-governing legal profession, strong rules are a positive step towards public legitimacy, but that legitimacy evaporates if those rules go unenforced. Amidst the debate over whether the Law Society of Upper Canada (LSUC) should continue to govern itself, the LSUC’s duty to protect the public interest requires attention. Law Society of Upper Canada v Hunter, 2007 ONLSHP 27 [Hunter] is pivotal in this conversation because it shows the governing body neglecting its duty to protect the public interest. In Hunter, the panel fails to sufficiently respond to the conflict of interest stemming from Hunter’s romantic relationship with a client because its decision does not protect the profession’s public integrity. It lends too much credence to ‘mitigating factors’ and ignores the harm to the public’s perception of the legal profession. If the profession wishes to self-govern, it must show the public a commitment to strict discipline. While the panel pays lip service to such ideals, its leniency in Hunter undermines that duty to protect the public interest.

The Panel’s Emphasis on Hunter’s Character Undermines Public Faith in the Profession

The most significant factor the panel relies on to mitigate punishment in Hunter is Hunter’s good character. This is problematic because his character does not determine the public’s feelings about lawyers. The panel relies on letters from Hunter’s friends that “spoke to the member’s character, integrity, and commitment to the profession.” Based on those letters, the panel concludes Hunter “remains capable of serving in the future as a valuable member of his firm, and of the profession” (para. 56). This excerpt shows the panel’s lack of concern for public perception. The public may not trust assurances from Hunter’s friends, and his professional struggles after this incident underline that mistrust. However, the panel relies on that mistrust to claim Hunter has already suffered. The panel’s lenient treatment focuses too much on Hunter and not enough on the public’s image of the profession. Hunter may have good character, but emphasizing that overlooks how this issue reflects on the whole profession.

Hunter is unique because Hunter was the treasurer of the LSUC. However, the panel’s response to Hunter’s status fails to maintain the perception of integrity as the panel used his career as evidence mitigating his punishment:

The member should not be treated more harshly as a result of his former status as Treasurer and as a bencher. Nor, of course, should he receive favoured treatment, although he is entitled to make the important point that his entire career is incompatible with this misconduct and that, therefore, this misconduct can be regarded as “out of character.” We have no difficulty in so finding. (para. 55, emphasis added)

This is more evidence that the panel relies on Hunter’s character to mitigate punishment. While it may be legally accurate that Hunter should not receive different treatment, that point defies reality in the eyes of public. Regardless of the safeguards separating the panel from benchers, using this to lessen Hunter’s penalty appears suspect to any observer. By not holding a leader to a higher standard, the panel erodes public trust in the profession’s self-regulation.

The Panel’s Emphasis on the Moderateness of the Consequences in Hunter’s Situation Fails to Respond to Public Interest Concerns

In addition to character, the panel uses a lack of severe consequences to mitigate Hunter’s penalty. This raises mistrust as the public may see the actual outcome as irrelevant given the damage Hunter could have caused. The panel points out “there is no evidence before us that the member’s legal work was actually affected by the conflict of interest” (para. 52). This statement is at best an unverifiable claim with little value given the probability of issues arising from a conflict of interest. At worst it is a lie or a rejection of reality. This assurance’s accuracy is impossible to assess, so the panel should not rely on it to mitigate punishment. Hunter may have worked harder on this case at the expense of others or it may have had no impact on his actions. However, the panel cannot measure the consequences, so its decision to rely on them undermines its credibility and consequently the credibility of the profession’s self-governance.

Instead of raising issues related to the public perception of the profession, the panel commends Hunter’s treatment of the complainant. Again, the panel misplaces its focus because the impact of Hunter’s actions on this complainant is irrelevant. Still the panel applauds how Hunter “spared the complainant the ordeal of testifying at these proceedings [and] . . . spoke positively about the complainant’s attributes” (para. 51). These facts further undermine the panel’s credibility because its focus should be on how Hunter treated the client during the conflict not how he treated her once legal proceedings began. An amicable litigation process does improve the profession’s public image, but the panel should expect a lawyer to behave amicably rather than rewarding a lawyer for doing so. By rewarding Hunter, the panel suggests it is abnormal for litigants to act nicely. That suggestion does little to improve the public opinion of the legal profession or the profession’s self-regulation.

In conclusion, the LSUC’s disciplinary panel recognizes the need to be “mindful of the impact . . . upon the confidence of the public in the profession” (para. 55) in Hunter. However, it does not live up to that ideal. In the end, Hunter received a two-month suspension. This ‘slap on the wrist’ when the situation called for a severe punishment cements public distrust of the legal profession. The panel’s focus on Hunter’s character and the lack of severe consequences fails to reflect the need to maintain the appearance of a strict standard in the eyes of the public. Dialogue between legal professionals and the public is inherent in the law society’s duty to protect the public interest. However, if the public grows to distrust lawyers’ ability to self-govern, should lawyers also lose trust in their own disciplinary mechanism?

The author is a first year student at the University of Ottawa Faculty of Law and wrote the essay for Professor Dodek’s course on Legal Ethics.

Administrative Justice and Earth Day: The Path to “Green” Fairness


Yesterday was Earth Day — an opportunity to reflect on the impact of administrative justice on our environment and how tribunals can balance fairness, efficiency and environmentally-friendly practices. It’s obvious that the environment is an inter-related system that needs to be looked at holistically. However, the administrative justice system is rarely looked at holistically. The actions of a tribunal have an impact on all the users of a tribunal services (parties and representatives). A tribunal’s rules and procedures create its own “ecosystem” that has the potential to impose both environmental costs and benefits.

Two small examples will serve to illustrate:

  • In order to save costs, the Ontario Labour Relations Board conducts initial hearings in Toronto. In “saving” the cost of one person traveling and a room rental, the OLRB has imposed travel costs on the parties and their counsel, as well as the environmental cost of more people traveling.
  • In June of 2010, the Canadian International Trade Tribunal decided to distribute the record for one type of hearing on encrypted USB keys, reducing the amount of paper sent to the parties.

We are all familiar with the three “R’s”: reduce, re-use and recycle.

Most organizations have integrated the third “R” in their practices by recycling the tremendous volume of paper that can be generated by proceedings.

Re-using has limited scope in a tribunal setting, given that each dispute generates its own record. There is one small step that tribunals can use: creating a common casebook of leading decisions. In many areas there are a handful of decisions that get copied over and over again in submissions. If a tribunal is able to identify those (uncontroversial) leading cases, it can tell the parties that they do not need to provide yet another copy of that leading Supreme Court decision.

The real environmental savings occur with the first “R”: reducing. The significant environmental costs of administrative proceedings are paper and travel.

Tribunals can impose some rules on the filing of paper that can reduce the volume of paper: requiring double-sided copies, for example. Tribunals can also encourage parties to use paper that has a minimum amount of recycled paper. However, the better way to reduce paper is to move towards electronic documents. Most of the documents provided at a hearing already exist in electronic form (and some are only transferred to paper for the purpose of the hearing). Close to 100 percent of the jurisprudence relied on at a hearing exists electronically and all statutes and regulations are available electronically.

Since last February, the OLRB has provided free wireless access at its Toronto hearing location. This has the potential of allowing all participants at a hearing to have electronic access to jurisprudence, statutes and regulations without the need to print out reams of paper.

Yet, there is a great resistance to moving to the use of electronic documents at hearings. Justice David M. Brown recently expressed his “profound frustration” with this failure to use technology in litigation:

Providers of music to the public have had to adapt to changes in technology in order to continue to provide their particular service. Why should courts and lawyers be any different? Why should we be able to expect that treating courts like some kind of fossilized Jurassic Park will enable them to continue to provide a most needed service to the public in a way the public respects? How many wake-up calls do the legal profession and the court system need before both look around and discover that they have become irrelevant museum pieces?

In the administrative justice system there are legitimate concerns about the access to justice implications of using electronic documents. Self-represented parties may not have access to computers or the necessary level of “digital literacy”. And in some cases, the documentary record is thin and an electronic approach is overkill. However, for complex proceedings with represented parties, electronic documents should be the norm.

Another way to reduce the environmental impact of proceedings is to reduce the amount of travel required. Many tribunals have either regional centres or travel to regions in order to bring the hearing closer to the parties. These policies or practices were not designed to reduce the environmental impact of hearings, but were designed to ensure meaningful access to justice. The reduction in travel time (and the ecological footprint) for the parties is just a “green” by-product.

Not holding an oral in-person hearing also can represent a significant reduction in the carbon footprint of a proceeding. This is where balancing fairness and green policies is most critical. I have already written on the fairness issues involved in determining whether an oral hearing is necessary. There are also opportunities to hold parts of proceedings in writing or by teleconference. This would include preliminary issues, disclosure issues and final submissions.

Conducting a full hearing by videoconference is becoming more of a possibility, with the improvements in technology, and is being used by some tribunals. There is still a need to assess the impact of the technology on the adjudicative process. An interesting study of the Immigration and Refugee Board’s videoconference hearings highlights some of the concerns that still need to be addressed.

At the frontier of dispute resolution is online dispute resolution (ODR) which can significantly reduce the environmental impact of hearings. However, ODR may be only suited for low-value, high-volume disputes.

We are all in this world together, and there are still great opportunities for all the participants in the administrative justice system to discuss and implement ways to make administrative justice both fair and green.

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. Doerr v. Sterling Paralegal 2014 ONSC 2335

    [37] But how was Ms Doerr’s action against her paralegal advisor, (effectively for breach of contract and/or negligence in relation to execution of the paralegal’s duties under the retainer relationship), an abuse of process?

    [38] Counsel for the respondent/defendant suggested that Ms Doerr’s action was found to be an abuse of process because, on reviewing the parties’ intended evidence and considering submissions made at the settlement conference, the Deputy Judge came to the conclusion that Ms Doerr’s action would not succeed. Counsel suggested that the bringing of a claim apparently destined to fail on its merits was itself something that properly could be characterized as “an abuse of process”.

    [39] I find that suggestion problematic for a number of reasons.

    [40] First, it adopts an inordinately broad view of what constitutes an “abuse of process”, and corresponding lowers the “very high threshold”, (noted above), required for such a characterization. Based on my review of the authorities, “abuse of process” connotes something far more egregious than mere commencement of an action unlikely to succeed. There must be some true “abuse” of the right to pursue litigation, such as use of legal process primarily to accomplish a purpose for which it was not designed, or commencement of a further proceeding to reopen and re-litigate claims or issues that already have been finally decided by an earlier proceeding.

    [41] Second, if the Deputy Judge did indeed base his dismissal of the action on a summary review of the evidence and corresponding informal determination of the merits without a trial, that would suggest veiled use of a summary judgment jurisdiction and procedure which are not available in the Small Claims Court, according to the Court of Appeal’s ruling in Van de Vrande v. Butkowsky, supra.

    [42] Third, based on the minimal indications provided by the Deputy Judge, his “abuse of process” conclusion wasnot focused on any kind of ultimate merits review, but on some kind of perceived problem arising from the fact that there had been an earlier proceeding in the Small Claims Court; i.e., “this action is an abuse of process(#2162-08)”. [Emphasis added.] That numerical reference corresponded to the court file number of the previous Small Claims Court action Ms Doerr commenced against her former London lawyer; i.e., the earlier claim for solicitor negligence resolved by the settlement arrangements giving rise to the present litigation.

  2. Baines v. Linett & Timmis Barristers & Solicitors 2014 ONSC 2348

    [57] Thus, in Hryniak v. Mauldin, the Supreme Court of Canada held that on a motion for summary judgment under rule 20.04, the court should first determine if there is a genuine issue requiring trial based only on the evidence in the motion record, without using the new fact-finding powers.

    [58] Thus, the Supreme Court directs for the first step on a summary judgment motion, the approach that existed before Rule 20 was amended and in the case at bar, the court should first determine, based on the evidentiary record, whether there is a genuine issue requiring a trial about whether Ms. Baines can establish professional negligence causing her a loss. This analysis should be done without using the enhanced fact-finding powers available under rules 20.04(2.1) and (2.2) by reviewing the factual record and granting a summary judgment if there is sufficient evidence to fairly and justly adjudicate the dispute and a summary judgment would be a timely, affordable and proportionate procedure.

    [59] In the case at bar, for the reasons set out below, based on the evidence presented and without the use of the powers provided by rules 20.04(2.1) and (2.2), I am satisfied that Ms. Baines has no tenable professional negligence claim against her former lawyers.

    [60] In the case at bar, it is not necessary to go on to the second step of the approach mandated by Hryniak v. Mauldin. Under the second step, if there appears to be a genuine issue requiring a trial, then the court should determine whether the need for a trial can be avoided by using the new powers under rules 20.04(2.1) and (2.2). As a matter of discretion, the motions judge may use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.

    [61] In the case at bar, applying the powers of rules 20.04(2.1) and (2.2) only confirms my conclusion that there is no genuine issue requiring a trial.

  3. Children’s Aid Society of London and Middlesex v. C.D.B. 2014 ONSC 1414

    [1] The father, C.D.B., seeks costs on a full indemnity basis for this extraordinarily lengthy trial and pre-trial process. In his submissions, C.D.B. claims the following:

    An order for costs on a full recovery basis, payable forthwith and jointly and severally payable by the applicant/respondent, L.D.B., the applicant, Children’s Aid Society of London and Middlesex and the Office of the Children’s Lawyer in respect to their agents, Barbara Hoover and Salim Khot, in the following amounts:

    Fees $2,642,406.50 (tab 2 of cost submissions brief)

    H.S.T. @ 13% $343,512.85 (tab 3 of cost submissions brief)

    Recoverable Disbursements $141,469.97

    Including H.S.T.

    Total Full Recovery Costs $3,127,389.32
    . . .

    [87] The Society shall pay 70 percent of the above noted costs: $1,410,449.50.

    [88] L.D.B. shall pay 30 percent of the above noted costs: $604,478.36.

The most-consulted French-language decision was Pasquin c. R. 2014 QCCA 786

[6] L’appelant invoque deux arguments : 1) la preuve d’écoute électronique était irrecevable et devait être exclue et 2) le jugement de culpabilité est déraisonnable en ce que le juge de première instance n’a pas tenu compte d’éléments de preuve qui lui étaient favorables et en ce que la preuve circonstancielle pouvait aussi mener à un verdict d’acquittement. Pour les raisons qui suivent, je suis d’avis que l’appelant a tort et que le pourvoi doit être rejeté, sauf en ce qui a trait au chef 4 (possession de drogue en vue d’en faire trafic), comme le concède d’ailleurs l’intimée.

* 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.

Student to Lawyer: 20 Tips for a Smooth Transition

This is an abridged version of the LAWPRO article: “20 tips for a successful transition” – a guide for law students through the transition from student life to legal practice. See practicepro.ca/20tips for the full article.

  1. Honestly assess your strengths and preferences to identify what makes sense for you in terms of the type of firm and area of law you want to practice.
  2. Consider all the options: big firm, small firm, solo practice, government, in-house. Don’t just pursue the opportunities everyone else is pursuing – reflect on what is the best fit for you.
  3. Create and prioritize a list of your options (from your most desired choices, to alternatives you’d accept).
  4. Identify what makes you unique and use that to sell yourself. See“Job market scoop: what do law firms look for?”
  5. Consider if you have what it takes to be a sole practitioner. Take our self-assessment quiz to help you decide.
  6. Be prepared to work within the realities of articling, the Law Practice Program (LPP) and the job market. Strive to be both positive and realistic.
  7. Be prepared to deal with uncertainty. You can’t control all the factors that influence your career path; but you can commit to making the best decisions possible under the circumstances.
  8. Be ready to adapt to changing circumstances and external factors. Your vision of the kind of practice that’s right for you will likely evolve as you gain experience. Be flexible and open to opportunities.
  9. Prepare your resume and the supporting information you will use to sell yourself in interviews. Consider including writing samples and references – with appropriate permission.
  10. Contact potential employers in the order in which you have prioritized your options. Research employers online – or even better: network with friends and family to learn about opportunities.
  11. Don’t have an existing network of contacts? Begin building one! a good first step is to polish your social media presence. Visit practicepro.ca for our article “The essential LinkedIn Dos and Don’ts for law students.”
  12. Make a good impression at a job interview by preparing answers to the probing open-ended questions you’re most likely to be asked. (See our list of sample questions at practicepro.ca/20tips).
  13. Once you have a job, get delegated tasks done right by understanding parameters and deadlines and asking for feedback. Good client communication is essential. See the Fall 2011 edition of LAWPRO Magazine for useful articles about communication.
  14. Find a mentor who can help you improve your skills. There are mentoring programs available from the Law Society (lsuc.on.ca), the Ontario Bar association (oba.org) and the advocates’ Society (www.advocates.ca).
  15. Make time for ongoing marketing and client development efforts. For marketing tips go to practicepro.ca/20tips, to see the original “Student to lawyer: 20 tips for a successful transition.”
  16. Be nice! The legal world is very small − you will meet the same people over and over again − and your reputation will get around.
  17. Have a life outside of law to help deal with the stresses of the job. while at school, you can find help for serious stress from on-campus providers; and once you become a member of the Law Society, you can contact Homewood Human Solutions to access confidential member assistance services.
  18. Take care of yourself physically and mentally to avoid burnout. See articling student Alexandra Kozlov’s article “Stress management for law students (from a recent grad!)” for some tips about how to cope with typical student stressors.
  19. Trust your instincts, think long-term and be prepared for unexpected turns in your career.