Summaries Sunday: OnPoint Legal Research


One Sunday each month OnPoint Legal Research provides Slaw with an extended summary of, and counsel’s commentary on, an important case from the British Columbia, Alberta, or Ontario court of appeal.

Fraser Health Authority v. Workers’ Compensation Appeal Tribunal, 2014 BCCA 499

Areas of Law: 

Administrative law; Jurisdiction; Patent unreasonableness; Workers’ compensation

~It is in error for an administrative tribunal to interpret its power to reopen an appeal to cure a jurisdictional defect as extending to include a review to determine whether its own decision was patently unreasonable.~

BACKGROUND: The Appellants were all laboratory technicians who developed breast cancer while employed at Mission Memorial Hospital between 1970 and 2004. They brought workers’ compensation claims, which were denied at the first level of assessment on the basis that the workplace had not been shown to have caused or materially contributed to their cancer. The Review Division also denied the claims, but a three member panel at the Workers Compensation Appeal Tribunal (WCAT) found that the burden of proof had been met in establishing a causal connection. The Respondent Fraser Health Authority (FHA) sought a reconsideration of this decision on the basis of patent unreasonableness. A WCAT panel denied the application for reconsideration. FHA then sought judicial review of WCAT’s second decision. It sought a declaration that WCAT erred in finding the cancer to have been an occupational disease due to the workers’ employment, an order that the original decision of WCAT be set aside and the decision of the Review Division confirmed, an order that the reconsideration decision be set aside, and in the alternative an order that both WCAT decisions be set aside and the matter remitted to a new WCAT panel with appropriate directions. The chambers judge noted that the parties were in agreement that the standard of review for the original decision was patent unreasonableness, while the standard of review for the reconsideration decision was correctness. The chambers judge did not address whether WCAT had the authority to reconsider the original decision for patent unreasonableness. He found the original decision patently unreasonable on the basis that there was no evidence to find causation, and found the reconsideration decision incorrect. He set aside both decisions and remitted the matter back to WCAT.

APPELLATE DECISION: The Court of Appeal sat a panel of five judges. Mr. Justice Chiasson for the majority dismissed the appeal. He considered the reconsideration decision a nullity because it was not authorized by the legislation. WCAT interpreted the common law power to reopen an appeal to cure a jurisdictional defect as “authority to set aside one of its decisions”, and considered the standard of review set out in s. 58 of the Administrative Tribunals Act (ATA) applicable. The legislation provides no parameters for a review of the merits of a WCAT decision by the tribunal itself. WCAT wrongly equated the common law power to reopen an appeal to cure a jurisdictional defect with the power of a court on judicial review. The actual review process at WCAT should be that the chair appoints a panel, which decides the appeal, and the panel may correct clerical errors in a decision or may reopen the appeal to cure a defect of pure jurisdiction. The chair may refer a final decision to WCAT for reconsideration if there is new evidence; otherwise, the original decision is subject to judicial review. In this case, WCAT was not authorized to conduct a review to determine whether its own decision was patently unreasonable. On the merits of the original decision, Chiasson JA agreed with Goepel JA’s concurring reasons. While some evidence existed to support the original decision, it was insufficient. A decision is patently unreasonable when the defect is obvious, and in this case the only support for the original decision was an unexplained statistical anomaly.

Justices Newbury and Bennett dissented and would have allowed the appeal. Madam Justice Newbury considered other appellate decisions in which both an original tribunal decision and a reconsideration were at issue. She also considered whether “jurisdictional defect” includes not only true questions of jurisdiction but also excesses of jurisdiction such as errors of fact, law, or discretion offending the applicable standard of review. Counsel for WCAT argued that patent unreasonableness is a type of jurisdictional defect and thus within its jurisdiction to reconsider. Newbury JA accepted WCAT’s submission and commented that the phrase “jurisdictional defect” in the ATA predates Dunsmuir and should not be interpreted in light of it. The broad meaning of jurisdiction in the constitutional sense prevails. To deny WCAT’s practice of reconsidering its decisions for patent unreasonableness would increase the necessity for court proceedings and would be contrary to the purpose of the legislation and the principles of administrative law. Thus, WCAT had the authority to reconsider as it did. It was not open to the reviewing court to weigh the evidence before WCAT in the original decision, but only to determine whether some evidence existed. In that decision, WCAT was not patently unreasonable in rejecting the notion that it was required to have proof of causation to the level of scientific certitude, and in resolving the uncertainty in the worker’s favour.

ONPOINT’S “OUR VIEW”: By Melania Cannon, OnPoint Legal Research Law Corporation

“The principal issue in this case was whether a tribunal has the jurisdiction to review its own decision on a standard of patent unreasonableness. The Workers’ Compensation Appeal Tribunal (WCAT) applied s. 58 of the Administrative Tribunals Act (ATA) to reconsider its own decision on the standard of patent unreasonableness. The majority on appeal considered WCAT’s adoption of s. 58 to be invalid, stating that the ATA does not apply to it. Rather, the authority to reconsider a decision derives from ss. 253.1 and 256 of the Workers’ Compensation Act (WCA). Section 253.1(5) provides that the section must not be construed as limiting the tribunal’s ability at the request of a party has been held to derive from the 1989 Supreme Court of Canada’s decision in Chandler v. Alberta Association of Architects, in which the majority held that an administrative tribunal may revisit a decision only if authorized by statute or if there has been a slip or error within certain exceptions. In 2003, the Court of Appeal in Powell Estate v. British Columbia (Workers’ Compensation Board) held that the Appeal Division of the Board, which predated WCAT, had the jurisdiction following Chandler to reconsider a case to correct its own jurisdictional error. Despite jurisprudence to suggest that the common law power exists outside of the statutory regime, the majority in this case framed it as being limited to the same role as s. 253.1(5). This seems to render the common law power redundant in the face of the statute.

The majority also took the position that a jurisdictional defect is limited to a matter of true jurisdiction, while a question of reasonableness falls within jurisdiction. The dissent strongly disagreed. The dissent drew on the Supreme Court of Canada in Pushpanathan, where the majority cited the 1981 decision in Crevier v. Quebec (Attorney General) with respect to whether a statutory tribunal could be immunized by provincial legislation from review on questions of jurisdiction. In those cases, “jurisdiction” was not defined as narrowly as “true jurisdiction” was in Dunsmuir. Just as the standard of patent unreasonableness has survived Dunsmuir due to its inclusion in the ATA, the dissent maintained that the phrase “jurisdictional defect” in s. 53 of the ATA has not been “diminished” post-Dunsmuir. Citing Groberman JA’s reasons for the Court in CSWU, Local 1611 v. SELI Canada Inc. 2011 BCCA 353, the dissent noted that Canadian courts have accepted that some errors in the course of a hearing will be jurisdictional in nature, and that unreasonable errors of law or fact can be errors of jurisdiction. In the dissenting judges’ view, patent unreasonableness as preserved in the ATA constitutes an error of jurisdiction, and is thus a jurisdictional defect for the purposes of s. 53 of the ATA. The difficulty for the dissent is that the line of reasoning set out in CSWU goes to the ability of the court to overcome a privative clause in reviewing a tribunal’s decision, and not to the tribunal’s own power to reconsider or reopen a decision under s. 53. Section 53, of course, is also mirrored by s. 253.1 of the WCA and, if both are taken to apply to WCAT’s power to review its own decisions (a position not endorsed by the majority), the dissent appears to be embarking on a novel and confusing path by applying the analysis in CSWU to the ATA, rather than considering the WCA in its legislative context.

Beyond the question of jurisdiction, the majority and dissent also disagreed on what amounts to “some evidence” in determining whether the original WCAT decision was patently unreasonable. If there was “no evidence” on which the decision could have been made, the dissent held, it must be said to be patently unreasonable. In this case, the only evidence to support the connection between the workers’ cancer and the workplace was the statistically higher instance of breast cancer among these workers than among workers generally. This was characterised by experts as a statistical anomaly. The dissent was satisfied that even the statistical anomaly constituted some evidence, such that the “no evidence” requirement would not be met and the original decision was not patently unreasonable. It was sufficient that the WCAT majority considered this evidence to satisfy the de minimis test and, all evidence being equal, found for the workers as required by statute. The majority allowed that there was some evidence to support the original decision, but held that something more was required when the only evidence was the statistical anomaly. At the same time, the majority noted that a decision is patently unreasonable when the defect is openly, evidently and clearly wrong. It seems that even if one were to accept the dissent’s position that any evidence, however dubious, is sufficient to establish that there is “some evidence”, the broader test of whether there is an obvious defect would suffice to determine that the decision was patently unreasonable. To find otherwise would be to leave any decision by the tribunal, based on the most spurious evidence, beyond the scope of the courts’ review.”

COUNSEL COMMENTS provided by Don Crane, Counsel for the Appellants

“This important decision will be of interest to the WCB community, and to administrative law enthusiasts. It strikes down the right of the Workers’ Compensation Appeal Tribunal (WCAT) to reconsider its own decisions on the basis of jurisdictional error, and it potentially broadens the scope of judicial review, to permit reviewing judges to re-weigh the evidence that was before the tribunal.

The process by which the court struck down WCAT’s right of reconsideration was the result of an unusual instance of judicial activism, and in my view it was quite unsatisfactory. Several days prior to the first hearing date of this appeal the Court sent a memo to the parties, simply asking them to address the implications of 3 earlier decisions of the Court. Counsel correctly deduced from this that the Court was raising, among other issues, the legality of WCAT’s reconsideration process. In view of the expanded issues on appeal, the first hearing date was adjourned, several new parties intervened, and a 5-justice division was constituted to hear the appeal.

None of the parties to the appeal, nor the interveners, saw fit to challenge WCAT’s power of reconsideration, and the issue was of no practical significance to the appeal. In short, there was no lis between the parties on this issue.

Because of this, the first hint of the argument against WCAT’s reconsideration power came in the form of questions from certain of the judges at the hearing. However, the avenue by which the majority of the court would ultimately find that WCAT has no power to reconsider its decisions on jurisdictional grounds was not fully revealed to the parties until the decision was released.

WCAT has been exercising a reconsideration power to review for jurisdictional defects for approximately 10 years, during which time it has adjudicated about 700 applications, and has allowed over 100 of them. It has provided an accessible process by which workers can have a decision reviewed without having to retain counsel to take a judicial review application. However, the reconsideration process does not in any manner preclude a party to an appeal from applying for a judicial review.

While recognizing the general right of the courts to control the processes of the so-called inferior tribunals, I would suggest that it would have been preferable for the Court to have waited until the issue arose as a dispute between parties to an appeal. Counsel would then have been better equipped to address this complicated issue. The fact that the court split 3:2 reveals that the issue of WCAT’s jurisdiction to reconsider its own decisions is not free from doubt.

The other important feature of the case is its departure from the principle that reviewing courts must not re-weigh the evidence before the tribunal. Courts frequently cite the passage from Speckling v. British Columbia 2005 BCCA 80, that “(a) decision based on no evidence is patently unreasonable, but a decision based on insufficient evidence is not: Douglas Aircraft Co. of Canada Ltd. v. McConnell, [1980] 1 S.C.R. 245, and Board of Education for the City of Toronto v. Ontario Secondary School Teachers’ Federation et al (1997), 144 D.L.R. (4th) 385 (S.C.C.)”. This was the approach taken by the two dissenting members of the Court, who would have allowed the appeal on the basis that there was some evidence that the cancers were caused by exposure to carcinogens in the workplace, and that WCAT had the exclusive right to weigh that evidence.

The majority, however, found that while there was indeed some evidence of workplace causation, the evidence was so insubstantial that it could not reasonably have been relied upon by WCAT. In effect, the majority judges re-weighed the evidence, and substituted their own view of its weight for that of the tribunal. It is reasonable to think that this approach will pave the way for future judicial review applications in which the courts are being invited to second-guess a tribunal’s assessment of the weight of the evidence.”

Summaries Sunday: SOQUIJ


Every week we present the summary of a decision handed down by a Québec court provided to us by SOQUIJ and considered to be of interest to our readers throughout Canada. SOQUIJ is attached to the Québec Department of Justice and collects, analyzes, enriches, and disseminates legal information in Québec.

PÉNAL (DROIT) : Il y a lieu de retenir l’approche fondée sur le critère du fondement défendable («arguable merit») quant au critère applicable pour décider s’il y a lieu d’ordonner qu’une formation de la Cour révise la décision de la Cour supérieure portant sur une demande de remise en liberté en vertu de l’article 680 C.Cr.

Intitulé : I.S. c. R., 2014 QCCA 2291
Juridiction : Cour d’appel (C.A.), Montréal, 500-10-005770-142
Décision de : Juge Nicole Duval Hesler (juge en chef)
Date : 15 décembre 2014

PÉNAL (DROIT) — procédure pénale — procédure fédérale — révision — remise en liberté — courants jurisprudentiels — interprétation de l’article 680 C.Cr. — critère du fondement défendable («arguable merit») — Cour d’appel — rôle du juge en chef.

Requête en révision en vertu de l’article 680 du Code criminel (C.Cr.). Accueillie.

Décision
Deux courants s’affrontent quant au critère applicable pour décider s’il y a lieu d’ordonner que la Cour d’appel révise la décision de la Cour supérieure quant à la demande de mise en liberté en vertu de l’article 680 C.Cr. Après étude de la jurisprudence, il y a lieu de retenir l’approche fondée sur le critère du fondement défendable («arguable merit») plutôt que celle, traditionnelle, s’appuyant sur le critère des chances raisonnables de succès de l’appel. En effet, le critère du fondement défendable trace une ligne plus claire entre la fonction de filtre de la juge en chef et l’examen au fond dévolu à la formation. Il n’est ni plus ni moins exigeant que le critère axé sur les chances de succès, mais il est mieux adapté à la fonction de filtre en ce qu’il permet d’examiner les arguments invoqués sans se positionner sur le fond. Quelle que soit leur application dans un cas donné, seuls les arguments qui possèdent une certaine force ou une valeur convaincante donneront lieu à un ordre de révision. En appliquant le test du fondement défendable à la présente affaire, il y a lieu d’autoriser la révision de la décision de la Cour supérieure par une formation de la Cour d’appel.

Le texte intégral de la décision est disponible ici

Summaries Sunday: Maritime Law Book


Summaries of selected recent cases are provided each week to Slaw by Maritime Law Book. Every Sunday we present a precis of the latest summaries, a fuller version of which can be found on MLB-Slaw Selected Case Summaries at cases.slaw.ca.

This week’s summaries concern:
Mechanics’ Liens – Civil Rights – Criminal Law – Police

Fecteau v. College of Psychologists (N.B.) 2014 NBCA 74
Administrative Law – Professional Occupations – Droit administratif – Droit des professions
Summary: Craft filed a complaint with the College of Psychologists of New Brunswick, against Fecteau. The Discipline Committee dismissed the complaint. Fecteau’s lawyer sought to make a presentation to the Discipline Committee with respect to recovery of costs, pursuant to s. 16(6) of the College of Psychologists Act. The Discipline Committee ruled that it was functus officio and refused to hold a hearing on costs. Fecteau applied for judicial review. The …

The Friday Fillip: Pass on It or Pass It On


There is the duty of abstaining from bothering your neighbours with remarks about the weather, or platitudinarianisms upon things in general.
The Times, September 4, 1873 [via OED]

As a complainant or two has reminded me, I’ve already bothered you about the weather — well, about winter, but same diff — and now I shall ignore this advice yet again and bother you about advice, a particular species of platitudinarianism. For a long time after 1873, when this wise judgment was issued, most of the bothering was done in person, and if you wanted to avoid it you could have very brief encounters; and in your chosen reading matter you’d rarely be surprised by gobbets of vacuity. Now, however, the internet has made everyone a publisher and has moreover, as someone once said to me, greased the skids of prolixity: people who wouldn’t otherwise dream of buttonholing you to announce that the rain was falling will feel free to offer you online aperçus in the very same flow as their valuable thoughts. (Rather as The Friday Fillip sits, cuckoo egg, in Slaw’s rich nest.)

You know the kind of thing I mean: “Try harder. And if that doesn’t work, try harder still.” — the sort of stuff I remember from signs taped to the ceiling of the wrestling gym in high school: “Quitters never win and winners never quit.” It’s one thing to have Winston Churchill waggle his jowls at you in 1941 and growl “never give in, never give in, never, never, never . . .” and quite another to get the message in ink on cardboard when the worst that will happen is that you’ll be pinned yet again. (Besides, Churchill made exceptions for “convictions of honour and good sense,” the latter of which never seemed to impress my coach.)

I was inoculated against these jabs of advice way back in the 50s, thanks to Disney’s TV show on Davy Crockett, an American folk hero, one episode of which (at least) had Davy counselling, “Make sure you’re right, then go ahead.” Having made the mistake of thinking about that, I found there was no going back. And so I developed a taste for the sort of advice that Yogi Berra gave when he said, “When you come to a fork in the road, take it.” Or, of course, the great Oscar Wilde, another such sage, who, speaking as Lord Goring in “An Ideal Husband,” pronounced, “I always pass on good advice. It is the only thing to do with it. It is never of any use to oneself.”

Still, there’s something attractive about a pithy apothegm — if only those words themselves. And which of us is so secure as to not need a word to the wise from, well, the wise? So I was intrigued when I read that filmmaker Werner Herzog had come up with 24 bits of advice for filmmakers that, although I’ve never made a film in my life, might, even so, be useful as “life advice.” I’ll take the liberty here of editing his list so that you get just an idea of what they’re like:

3. Send out all your dogs and one might return with prey.
. . .
9. Carry bolt cutters everywhere.
10. Thwart institutional cowardice.
11. Ask for forgiveness, not permission.
. . .
15. Walk straight ahead, never detour.
16. Manoeuvre and mislead, but always deliver.
20. A badge of honor is to fail a film theory class.
. . .
23. Take revenge if need be.

These, at least, you can argue with. I’m down with the bolt cutters thing, but disagree entirely with the injunction against detouring. And some just don’t apply: if I sent out all my dogs, they’d just garbage — all of them, every time.

This got me thinking, too, about advice I might offer my children. And, of course, if you understand advice as a substitute for experience, the urge to offer it passes. Even life’s wretched moments are in living colour, whereas advice is of a “pale cast” by comparison. Still, I wondered whether I could come up with anything, even if I decided in the end to keep it to myself. I fear what it says about me, but I emerged with this sorry trio of epigrams:

  • Never read a work of fiction avowedly written by more than one person.
  • Beware the driver who’s wearing a hat.
  • As far as may be possible, let gravity do the work.

The “avowedly” is to admit the mysteries by Emma Lathen into the canon, Lathen being the nom de plume for a pair of women who met as grad students at Harvard. I have no explanation for the capped driver wisdom, except my own substantial experience. And the gravity business? Think waterwheel, using a heavy enough hammer, freewheeling a bike downhill, diving into a summer lake, and . . . hammock.

How to Find Cases in English Translation, Revisited


Back in 2012, I wrote a Slaw blog post on “Tracking Down the Brazilian Anencephalic Abortion Case, in English.” I thought I’d revisit this frequently-asked foreign, comparative, and international law (FCIL) legal research question and highlight key resources for English translations of case-law.

Generally, it’s difficult to find English versions of cases, but here are some standard tools for locating them by country and topic, as well as general strategies to use.

Research Strategies

Check if someone has already located an English translation of the case. Look for citations in full-text law journal and book databases, as well as Google Scholar, Google Books. Do a Google Web Search. For example, a 12 November 2010 Dutch case I was looking for a while ago was not in the Global Class Action Exchange website in English translation, but I was able to find a sworn translation provided at the Converium Settlements website by Googling.

In your searches, you can use the case name, number, date of decision (in the vernacular or in English) and add “translation” OR “English translation” OR “translated” OR “translating” OR “English version” OR any other combination that might be used. And consider that foreign language sources might include English translations of cases, so if you really want to be thorough, you can do searches using the German, French, or Spanish words for “English translation”.

If you have no luck finding citations to translations, consider your case. What is the country of decision? What is the court? What is the legal issue? Who are the parties involved? Is it a landmark case? Also, what type of translation do you need? Will quick and dirty do? You can get the gist by using Google Translate, vLex Global (has a Translate feature), or other translation tools. How soon do you need the translation by? All of these factors can determine what types of source you can use for locating an English translation of your case.

One caveat – be careful about relying on English translations of cases. Are they official or unofficial translations? Who is doing the translation? Machine or human? Look for language about the use of the translation you find.

General Sources

Standard tools such as the Foreign Law Guide and GlobaLex have sections on locating translations, but usually focus on translations of codes and statutes. Book-length foreign legal research guides might be more useful for locating country case-law in translation, but likely focus on legislation as well.

Sometimes case translations are separately published so it’s worthwhile to check library catalogs for them. Sometimes the translations are published as journal articles. Look also for casebooks or other compilations of case-law in translation in full or excerpted (for example, Raymond Youngs’ Sourcebook on German Law, Donald Kommers’ The Constitutional Jurisprudence of the Federal Republic of Germany). Add “—Cases” to subject heading searches and filter by English to obtain books compiling case-law in English translation by topic. Some courts are mandated to publish multiple language versions of their decisions, including in English. Sometimes extensive summaries in English are available (see e.g. CRIN’s Child Rights in the Courts (CRC) database).

You can sometimes ask the attorneys in the case. You can also use “ask a law librarian” or “ask a foreign law specialist” chat and reference services. And you can ask for help on listservs such INT-LAW or IALLMembers.

Case Translations by Country

Ted Tjaden has a 2011 Slaw blog post on “Finding Translations of French Language Court Decisions in Canada” and SOQUIJ has a “Translated Decisions” page with unofficial English translations of selected cases. The University of Texas at Austin School of Law Institute of Transnational Law’s Foreign Law Translations page includes selected translated decisions for Austria, France, Germany, and Israel. Legifrance’s “Catalogue de Traductions – Jurisprudence” links to sources of English translations of decisions of the Conseil constitutionnel and the Cour de cassation, and legal analyses in English of Conseil d’état decisions. The German Law Archive has a collection of judgments in English translation.

Case Translations by Court

Courts will sometimes include English translations of landmark cases at their websites, so it’s good practice to check there first for major, newsworthy, and noteworthy cases. Foreign Law Guide, GlobaLex, and the Law Library of Congress’ Guide to Law Online: Nations includes links to court websites.

Some courts publish print copies of their decisions in English translation. For example, Decisions of the Bundesverfassungsgericht (Federal Constitutional Court) Federal Republic of Germany / is now in its fifth volume. Each volume covers a particular topic: v.1 (International Law and the Law of the European Communities; v.2 (Freedom of Speech); v.3 (Questions of Law Arising from German Unification); v.4 (The Law of Freedom of Faith and the Law of Freedom of the Churches); v.5 (Family-Related Decisions). You can also find translated decisions of the Supreme Court and Constitutional Court of Korea and Japan in print.

The Supreme Court of Israel database in Lexis.com includes an archival file of “translations of selected decisions of the Supreme Court of Israel as published in the Selected Judgments of Israel and the Israel Law Reports” from covering 1948-2009. The official translations are also available via the Israel Law Reports database in HeinOnline.

Case Translations by Subject

Various sources compile decisions of national courts in English translation by legal topic. There are print publications such as European Commercial Cases, International Environmental Law Reports, International Labour Law Reports (also in the Foreign & International Law Resources Database in HeinOnline). International Law Reports (ILR) in print and online via Justis and Cambridge University Press includes English translations of domestic cases related to international law. International Law in Domestic Courts (ILDC) is a similar online product available as part of Oxford Reports in International Law (ORIL).

The Council of Europe Venice Commission’s CODICES includes constitutional case-law in English translation in abridged or full text formats. The Global Health and Human Rights Database has English summaries of judgments by country. WorldLII’s Final Appeal Courts section collects databases of decisions of supreme and constitutional courts in English translation, and links to them under the “Constitutional Law” category for each country. Israel has a database of Supreme Court judgments related to terrorism. The United Nations Office of Drugs and Crime (UNODC) has a Human Trafficking Case Law Database with over 1000 case briefs from 80 different countries.

Sometimes, topical databases of case-law in English translation are outcomes of comparative law or legal harmonization projects. For example, the “Ius Commune Casebooks for the Common Law of Europe” include excerpts in English translation of case-law on consumer law, contracts, property, torts, and unjust enrichment. The European Centre of Tort and Insurance Law has a EUROTORT database for “researchers as well as practitioners to access the vast wealth of jurisprudence on tort law throughout Europe in a single language (English) and with a standardized index system.”

A Difficult Test Case: Amanda Knox

American foreign exchange student, Amanda Knox, was convicted of murder by a trial court in Perugia, Italy on 4 December 2009. The 427-page report of judges Giancarlo Massei and Beatrice Cristiani explaining the court’s reasoning (“motivazioni”) was released 4 March 2010 (Sentenza della Corte d.Ass., 4 Marzo 2010, n. 7/2009). In April 2014, a second appeals court, in a 337-page document, explained its motivations for reinstating the guilty verdict against Knox. According to the Huffington Post, “The Florence appellate court that reinstated the first trial guilty verdicts in January handed Knox a 28 ½ year sentence, including the additional conviction on a slander charge for wrongly accusing a Congolese bar owner. She remains in the U.S. since her 2011 acquittal and has vowed to never return willingly to Italy to face her judicial fate.” How would one obtain English translations of these two case documents and what are some possible issues?

New Blog for Legal Education Micro-Charity CLEW

You may remember a guest column posted a few months ago here on Slaw written by John Claydon, titled Canadian lawyers making a difference in Cambodia.

In it, John describes how a five-lawyer Toronto firm, Bennett Gastle, established Cambodian Legal Education for Women (CLEW), a charity that gives full four-year scholarships to young women from rural areas who would otherwise be unable to obtain a university education.

These young women graduate with LLBs from Cambodia’s leading law school, and though most of them will not be able to join the exclusive and expensive Bar, the grads (several dozen to date) are putting their skills and knowledge to work in a multitude of ways that help to bring about change in real ways; including areas such as the status of women, indigenous rights, and land/property rights.

CLEW now has its own blog, entitled “Field Notes”, screen capture below:

According to its first post, the blog will “tell the story of Cambodia and its challenges. It will also tell the story of CLEW, its accomplishments and its challenges. In the course thereof, we will explain the growing pains we experienced and the lessons that we have learned. The purpose is to help anyone who is thinking of creating a micro-charity by giving them the benefit of our experience and helping them understand the issues that they may confront.”

Kudos to CLEW on their new blog. We look forward to learning from their experiences running a micro-charity.

Can Better Data Security Be Encouraged by Civil Liability?

Some people – notably information security expert Bruce Schneier – believe that if IT suppliers, notably software providers, were civilly liable for the harm caused by buggy products, they would have an incentive to be more careful. The market currently encourages the industry to put products on sale as early as possible, and with the most hype possible, whether testing has been adequate or security threats thoroughly checked.

Here is an overview of Schneier’s position. A classic statement of the issues with software is here.

Would they be more careful – and would we then all be better off – if a few drastic civil judgments persuaded them to adopt better practices?

Stewart Baker of Steptoe & Johnson in DC does not think so. His article addresses mainly security measures that might reduce the number of instances of compromise of personal or commercial data. Is he persuasive? Does his reasoning apply beyond data breach to other data security issues?

If the threat of liability were a useful incentive, can it be legislated to some extent?

P.S. I had a few things to say about intermediary liability in my Technology columns last year, here and here. Some of that discussion might apply to IT suppliers, whether they are ‘intermediaries’ or not..

Breastfeeding Need Not Be Accommodated by Telework

In Flatt v. Treasury Board (Department of Industry), the Public Service Labour Relations and Employment Board has rejected a public servant’s complaint that Industry Canada discriminated against her on the basis of family status when it refused to let her work from home full-time while breastfeeding.

Facts of the case

Laura Marie Flatt is a spectrum management officer, working for the Spectrum Management Operations Branch of Industry Canada in Burlington, Ontario. The Spectrum Management Operations Branch oversees the radio frequency spectrum in Canada. A spectrum management officer has both technical and administrative duties, which may require working from an office or visiting licensees to address problems.

Between September 2007 and March 2013, Flatt had three children and took three maternity leaves. After each leave, she requested a telework arrangement to help her manage her new family obligations. The employer agreed to the initial two arrangements—first for one day of telework per week, then for two days. During her third maternity leave, Flatt requested one year of full-time telework or, alternatively, two days of telework and three days in office on a modified schedule, in order to allow her to breastfeed her new son. The employer initially accepted the alternative proposal, but later had second thoughts, saying it was only willing to allow her to telework one day a week. As an alternative, the employer said Flatt could take an extended leave of absence without pay.

As a result, on March 28, 2013, Flatt launched a grievance alleging that the employer discriminated against her on the grounds of sex and family status when it refused her request to telework from home full-time for a year following the end of her 12-month maternity leave in March 2013, to breastfeed her child. In her grievance, Flatt stated:

“I have a need to change the way I work because of breastfeeding… Management has forced me into an unsuitable situation and the hardship of having to take leave without pay.”

In response to the grievance, the employer argued that the decision to allow Flatt to work from home five days a week in this case would have a profound impact on the organization and could cause undue hardship. According to the employer, Industry Canada had decided in April 2012 that, due to downsizing (between 2009 and 2013, the number of personnel in the spectrum management operations branch, where Flatt worked, shrank from 17 to 11), it could no longer allow employees to telework, except under exceptional circumstances.

Despite the grievance, Flatt took an unpaid leave to continue breastfeeding, but was forced by financial considerations to return to work in October 2013, six months earlier than she had hoped.

Decision

The board found that “discrimination on the basis of breastfeeding, if it is discrimination, is discrimination on the basis of family status rather than sex or gender.” However, the board decided that Flatt did not make a prima facie case of discrimination based on family status for the following reasons.

The test for prima facie discrimination based on family status was set out by the Federal Court of Appeal in Canada (Attorney General) v. Johnstone, 2014 FCA 110 (Johnstone):

i. that a child is under his or her care and supervision;
ii. that the childcare obligation at issue engages the individual’s legal responsibility for that child, as opposed to a personal choice;
iii. that he or she has made reasonable efforts to meet those childcare obligations through reasonable alternative solutions, and that no such alternative solution is reasonably accessible, and
iv. that the impugned workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfillment of the childcare obligation.

  • Flatt could not meet the second part of the test. A parent’s legal responsibility is to nourish the child, but how the parent fulfils that responsibility is a question of choice. Breastfeeding is one of those choices, but not the only one. In this case, there was no evidence suggesting that there was some physical need that necessitated breastfeeding. Also, Flatt never explained why teleworking five days per week was necessary with her third child but not with her other two children.
  • Flatt could also not meet the third condition of the test. There were alternatives to teleworking five days per week that would have helped her maintain her son’s breastfeeding schedule. Indeed, ” she had found a daycare close to the Burlington office that would have allowed her to keep her breastfeeding schedule but then had decided not to pursue that option and eventually returned to her original proposal.”

The evidence submitted by the grievor did not establish a failure on the employer’s part to accommodate her. The duty to accommodate is not a one-way street. The employee must cooperate in the process and is not entitled to have his or her choice among several suitable alternative accommodations. In this case, Flatt “ultimately refused to yield from her original request.”

The board added:

“Finally, if I am wrong in my decision with respect to the issue of discrimination, it is also my decision that on the facts of this case the employer did take steps to accommodate the grievor to the point of undue hardship.”

Therefore, the grievance was dismissed.

What can we take from this case?

Cases such as this largely depend on their particular facts, although the board did rely on the principles set out by the Federal Court of Appeal’s Johnstone decision to determine whether there was a prima facie case of discrimination based on family status. The test contained in that case must be met in order to move to the second stage and determine whether the employer accommodated the employee to the point of undue hardship.

Interestingly, this case confirmed that breastfeeding falls under the umbrella of family status and not sex or gender. This is somewhat surprising, given that several policies of Human Rights Commissions discuss the topic of breastfeeding under sex. For example, the Ontario Human Rights Commission has a brochure discussing pregnancy and breastfeeding, which clearly states:

“The Code makes it against the law to discriminate against someone or to harass them because of sex, including pregnancy and breastfeeding.”

It will be interesting to see whether this becomes a precedent in future cases.

Thursday Thinkpiece: Abbott on “Sponsoring Women”


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.

Sponsoring Women: What Men Need to Know

Ida O. Abbott

Excerpt: Chapter 3, “Sponsorship is More than Mentorship”. Excerpted with permission from Attorney at Work. $35 ($24 digital edition).

The practice of mentorship is well known and well established in today’s workplace. A mentor is someone who helps a more junior person learn, develop and achieve her professional goals. Mentoring is the process by which the mentor and mentee work together to identify and help the mentee move toward those goals. As shown in Table 1, mentors serve a variety of roles and functions. Some of these roles support professional development, socialization and confidence building, while others are directed at career advancement. A mentor may serve several of these functions or only one or two, and many mentors who advocate for their mentees eventually become sponsors. Sponsorship can therefore be seen as a set of mentoring functions that are intended specifically to promote an individual’s career advancement.

Fig1

Table 1.

 

Defining Sponsors and Sponsorship

What we call “sponsorship” today is similar to the old-fashioned notion of mentorship. In the past, a mentor was someone who took you under his wing, shared his wisdom with you, protected you, sent good work your way, introduced you to influential contacts, and generally paved the way for your career success. You were known as the mentor’s protégée, which derives from the French word for “protected.” The term acknowledged the fact that the mentor had made a personal commitment to you and that your future success was linked to his ongoing support.

As the concept of mentorship has become popularized and programmed, it also has become diluted. Today, mentors are seen primarily as advisors and counselors. They support a mentee’s career but do not necessarily go out of their way to promote her advancement. While mentorship remains vitally important for professional development, it is insufficient as a person moves closer to the top where the competition for leadership and partnership are greater and the stakes become higher. At those junctures, what she needs is someone who will be a strong advocate for her — a sponsor, not just a mentor.

A sponsor is an advocate who has power and influence to make his advocacy produce positive career results for the person he is sponsoring — his protégée. He identifies and helps the protégée plan new career moves, helps her develop strategies to move up into new positions, and publicly endorses her. A sponsor takes risks on her behalf, arguing that she should get a bigger pay raise or urging that she is ready for equity partnership or a significant leadership role. He alerts her to opportunities and uses his influence to get her appointed to key posts. He has her back when she takes on new responsibilities, making it safer for her to take risks. He defends and advocates for her behind closed doors when she is not there, and also opens doors and invites her in. Sometimes he calls in favors, puts pressure on colleagues, or puts his reputation and credibility on the line for her.

Specific sponsorship activities are dictated by the unique circumstances of the sponsor and protégée, such as the sponsor’s role and range of influence in the company, the protégée’s seniority and experience, her career objectives, and the available job openings and opportunities. While the specifics will vary for each sponsor-protégée relationship, Table 2 lists some of the things sponsors commonly do for their protégées.

Table 2.

Table 2.

Comparing Mentors to Sponsors

Mentorship may transition seamlessly into sponsorship if the sponsor is in a position of power and believes strongly in the mentee’s potential. Mentors may also serve limited sponsorship roles for their mentees. But there are several key distinctions between mentors and sponsors, as described below and summarized in Table 3.

Fig3

Table 3.

 

Mentorship is supportive, focuses on professional growth and development, and is particularly useful for skills development, socialization, identity formation, emotional support, and personal growth. Sponsorship is predicated on power and focuses on career advancement.

Mentors help people learn how to be reliable and confident performers. Sponsors focus on proven performers, those seen as “stars” or “high potentials.”

Mentors are useful throughout your career, especially in the early stages. Sponsors become more important as your career progresses, especially as you near key junctures in your career path or when fewer positions are available, the competition for those limited spots is fierce, and decisions about candidates are not just up to an individual manager.

Mentors can work with several people at once. Sponsors are far more selective; they rarely sponsor more than one or two people at a time.

Mentors can be anyone with more knowledge or experience than you. Sponsors must have sufficient organizational clout to make good things happen for the protégée.

Mentors can be within or outside the organization. Sponsors must be able to influence events within a company or firm, so sponsors are usually found inside the protégée’s company. In professional services firms, clients or other powerful outsiders can serve as sponsors because of their ability to influence decisions and practices in the firm.

Although a mentoring relationship depends on mutual trust, mentoring generally involves little risk. Sponsors deliberately take risks on a protégée’s behalf and sponsorship therefore demands a great deal of trust. Sponsors trust that protégées will live up to their promise and up to the sponsor’s expectations. Similarly, the protégée must trust that the sponsor has her best interests and career goals at heart, the influence to make things happen, and the commitment to follow through.

The above excerpt is also available as a fully formatted PDF download.

Ida O. Abbott specializes in developing and retaining professional talent. An expert on mentoring, sponsorship, and leadership, much of her practice is devoted to promoting the advancement of women at work. Ida is a Fellow of the College of Law Practice Management, Co-Founder of the Hastings Leadership Academy for Women, and on the Executive Committee of the National Legal Mentoring Consortium. Visit IdaAbbott.com for more information about the author.

After the Gates Foundation Open Access Policy


The Bill and Melinda Gates Foundation has demonstrated the power of philanthropy to reshape the world. Among the many instances, an earlier one touching my own area of work, which involves research on public access to research and scholarship, has been the PLOS Neglected Tropical Diseases, which “is the first open-access journal devoted to the world’s most neglected tropical diseases (NTDs) …affecting the world’s forgotten people,” as the journal describes itself. The launch of the journal was funded by the Gates Foundation. The pointedness of its stance matters. The Foundation enabled a new and open journal that changes the field of research.

This is high-impact philanthropy. Its singular-minded agenda is not always welcomed by everyone. There’s been a backlash against some of the Foundation’s education “experiments,” most notably from Anthony Cody in his book The Educator and the Oligarch. And while I have yet to be party to any Gates’ funding (in the interests of full disclosure), I can say that a second venture in scholarly communication demonstrates well enough the upside and downside of big philanthropy.

On November 21, 2014, the Gates Foundation announced an Open Access Policy for the research that it sponsors. As of January 1st, 2015, any publications resulting from research funded by Gates must be made “open access” and placed under a Creative Commons license (CC by 4.0).

What is path-breaking to this policy, however, is its “two-year transition period,” in which “publishers will be permitted to apply up to a 12 month embargo period on the accessibility of the publication and its underlying data sets.” Then, “this embargo period will no longer be allowed after January 1, 2017.”

The Gates Foundation is declaring that this concept of publishing embargoes – intended to protect journal subscriptions – is no more than a transitional stage on the road to a state when research and its underlying data “will be accessible and open immediately.” The Foundation has crossed a line. It is treating open access not as a concession subject to crippling terms, but as the natural state of research. It is “how we work,” the Foundation declares on its website.

It is easy to imagine that the Gates Foundation policy will come to influence many open access policies, such as that of the U.S. National Institutes of Health, which has had a 12-month embargo since 2008 with no reference to it ending. It will send a further signal to the publishers that the time of open access is now. Only this is where the potential downside comes in.

The Gates Policy states clearly that the Foundation “will pay necessary fees,” with a quick reference to “reasonable fees” in the next sentence. This, too, will speed the publishers’ plow, quick as they have been to charge fees that range widely, from $8 to $3,900, according to a recent study by David Solomon and Bo-Christer Björk, undermining any sense of this involving what might be necessary and reasonable. But what then of access to the research and scholarship that is not so funded?

The Foundation may well have created the “strongest policy on open access research,” as the Nature NewsBlog headline reads. But if it reinforces the divide between the well-funded and other researchers and scholars, then I’m afraid that it leaves the economy of publishing weakened.

Encouraging authors to pay for open access, article by article, journal by journal, is a step backward. What is needed – as I have been stressing for some time now – is for the whole scholarly publishing system to move, as a whole, to being “accessible and open immediately.”

There is already enough money on the table for that shift. It is wrapped up in what is at least a ten-billion-dollar subscription industry, which has kept research exclusive and limited its circulation even among researchers. That money could fund a potentially less-expensive model, in which a portion of this ten billion is redirected to paying article processing fees for all peer-reviewed and published research (and not just the research of those holding sufficiently generous grants).

Coordinating such a move from subscription to open access economy is going to be no small step. The research libraries, which have been writing the checks, one-by-one, vendor by vendor, now need to find a way of collectively redirecting their budgets toward covering the necessary and reasonable costs of well-run and rigorous journals available to all researchers and scholars. Here is where the work is now needed, if I may, by far-sighted foundations working with both library and scholarly associations to set a new course for the open and public circulation of knowledge.