The Friday Fillip: Bang On

I don’t know about you, but I often like to bang on things . . . make a noise, as rhythmically as possible. Not very, in my case. Drumming. It’s the old heart beat thing, I suppose, which leads to dancing (the reason, so the joke goes, that Baptists — or is it Methodists? — are opposed to pre marital sex1). Staying still was a hard-learned lesson for most of us, I’d wager. And staying quiet even harder. If you have hung around little children for any length of time, you’ve probably been entertained by a kitchen concert involving a wooden spoon and various pots and lids disported on the floor. So this urge to bang and tap and rap and clap (oh, onomatopoeia!) arises early.

In some of us — most of us, perhaps — it gets tamped down or goes unconscious. Think of the annoying pencil drummer at one of your favourite interminable committee meetings. Or the frantic under-the-table knee jiggler making wakes in your latte. But in a few glorious others, the urge gets nourished and developed into art. We know the Gene Krupas and Buddy Riches, the Phil Collinses, the Ringos (yes, Ringo Starr, undervalued goofball). And I’d be remiss if I didn’t remind you of the miraculous South Asian musicians2 who can play intricate note-rhythms on tablas and vocalize as well in imitation.

But today I want to offer you something in the way of hammering that less structured3 than a performance piece. Here’s the artist Jarbas Agnelli, from São Paulo, wandering around his farm hitting things, simply making his world sound. Try it yourself.


So get out there and knock on wood — or on anything that resonates. And do it soon, before the upcoming season’s sonic wallpaper hammers you with “Little Drummer B—” Arghh! Too late!

  1. Which, because it’s Friday and parentheticals are allowed to multiply, puts me in mind of a certain candidate for one of our top judge spots, who, when asked whether formal marriage would replace the current informal partner relationship should the elevation occur, replied: “What? And give up all that pre-marital sex?”↩︎
  2. The treat here in the linked text above is from the Toronto Tabla Ensemble. ↩︎
  3. For something of a mixture of impromptu and organized, take a look/listen here ↩︎.

Throwing Out the Baby While Keeping the Bathwater

As we’ve posted in our previous column, this summer, the UNCITRAL working group on ODR – which we have discussed extensively in previous blogs – has been given an ultimatum: “the Working Group was given a time limit of one year or no more than two Working Group sessions to undertake this work, after which the work of the Working Group will come to an end, whether or not a result has been achieved”. In other words, the Working Group will most likely have no more than five months left (the two sessions are scheduled for 30 November-4 December 2015, in Vienna and 29 February-4 March 2016, in New York, although a third session has tentatively been scheduled for 19-23 September 2016, in Vienna) before it is forced to wrap up its work and, if the past five years are any indication, will have nothing to show for it.

Or will it?

It has been well documented that the working group’s mandate was “to undertake work in the field of online dispute resolution relating to cross-border electronic commerce transactions, including business-to-business (B2B) and business-to-consumer (B2C) transactions”. It is also well established that talks stalled during the working group’s last sessions because of disagreements regarding the validity of arbitration clauses found in consumer contracts. In fact, it should be pointed out that the discussions have, for the most part, focussed solely on the “business-to-consumer” element of the working group’s mandate and somewhat ignored business-to-business transactions. Since a consensus on adoption comprehensive B2C ODR rules seems impossible to reach, the UNCITRAL has therefore decided to redefine the scope of the Working group’s mandate.

In a letter participants received in September, we were informed that “the Working Group is instructed to continue its work towards elaborating a non-binding descriptive document reflecting elements of an ODR process, on which elements the Working Group had previously reached consensus, excluding the question of the nature of the final stage of the ODR process (arbitration/non-arbitration)”. In other words, gone is the nego-med-arb model. Rules will now focus on establishing a framework for negotiation (whether one-on-one or assisted by a third party). Furthermore, B2B rules are still not being discussed – although it could be argued that the same non-binding rules should be used for both B2C and B2B disputes.

While we understand the UNCITRAL’s will to move things forward since discussions are at a stalemate, we believe that whatever rules the Working group produces under this limited mandate will have little to no use. The whole point of ODR rules, as we see it, is to ensure that there exists a well-regulated alternative to the courts for low intensity disputes (what some would refer to as high-volume – low-value disputes). If arbitration is taken off the table, what is to force participants (read businesses) to take part in the ODR process? We are all taught from a very young age that there are two ways to make people do what we want them to: the carrot or the stick. Without the looming presence of arbitration or adjudication, why would businesses take part in the process? We learned this lesson the hard way back in 2001 when we launched the ECODIR (Electronic Consumer DIspute Resolution) platform with the European Commission. Although consumer groups touted the platform, the lack of concrete incentives for businesses translated itself into a far less successful endeavour than what had been expected. More comprehensive rules would not have been of use for ECODIR. The only thing that could have guaranteed its success would have been the EU’s intervention in cases where businesses refused to take part in the negotiation process in good faith.

In other words, even if the Working Group comes up with comprehensive guidelines, unless they can find a way to force businesses to take part in any kind of ODR process, we have little hope that anything will come of them… Furthermore, since certain delegations (including Canada’s) and observers (including ourselves) have already decided not to take part in this month’s session, the writing seems to already be on the wall.

Lawyers, Boards and Cybersecurity

A lot of attention is being paid these days to cyberthreats and cybersecurity. It seems widely accepted that such threats and security questions cannot be confined to the IT department any more, but they involve sufficiently critical threats to organizations that boards of directors have to get involved. When boards get involved, they turn to their counsel.

Some enterprising law firms in the US have published books on the topic. The blurb for this one strikes me as a bit over the top – and the threats they sketch have been real for years (off-the-shelf attack software available for low prices to random hackers. Have they never heard of script kiddies?). But the questions raised are pertinent anyway, and maybe the suggested strategies have merit.

So: what does counsel advise? What do you advise?

What must lawyers know about defences and responses to various kinds of attack? Can you insulate your board clients (whether you’re in-house or outside counsel) from liability for damage to the organization (and its shareholders and customers) from cyberattack? Are there best practices, or only shots in the dark?

I am aware of one US case where a derivative action against a company for having been hacked was defeated by evidence of the diligence of the board in combatting and responding to the attack – which involved *many* meetings and consultations. Due diligence was very diligent indeed.

Are there any Canadian standards or legal guidance, besides on privacy matters? I am not so much thinking of data breaches as espionage or ransomware, or [insert your nightmare scenario here].

A lot of U.S. authorities are creating standards for the protection of “critical infrastructure” – are there Canadian equivalents? So the test for liability for a critical infrastructure business may be whether one has complied with those standards. For others – is there guidance to be had there?

Can you insulate yourself from a professional negligence action if you fail to protect your clients from a successful attack? Are the standards of care clear enough for that, either for the clients or for the lawyers? Where would you go to look?

Is a severe warning to the client (before disaster strikes) enough to get the lawyers off the hook? What does it have to say?

Quebec Construction Corruption Inquiry Final Report Published

The Charbonneau Commission mandated to look into corruption and fraud among the construction industry, unions and government, tabled its final report on November 24, 2015. The report proposes 60 recommendations that lead commissioner of the inquiry, France Charbonneau, called “concrete solutions” to ensure government contracts are fairly managed.

Throughout the four-year inquiry, the commission’s discoveries have revealed numerous failings in the province’s regulatory regime and deep-rooted corruption and infiltration of organized crime in the construction sector.

Recommendations include the creation of a Public Procurement Authority to supervise government work providers and to ensure that major construction projects are carried out legally. Specifically, the authority would oversee the bidding and management process for public contracts “to prevent favoritism, collusion and corruption in the allocation and management of public contracts in the construction industry.”

The commission also proposes an independent committee of experts to decide the planning of work objectively without any pressure or political consideration. The politicians would decide which projects to pursue and the needs and priorities of contracts, but the planning and fulfillment of these contracts would be entrusted to this committee and the Public Procurement Authority.

In Charbonneau’s speech introducing the report she uttered a warning to the Quebec government:

“The government must do everything possible to prevent organized crime being introduced into the legal economy.”

Charbonneau also recommended better protection for whistleblowers to help denounce corruption, because without them, the government is not equipped with the right tools to detect corruption and wrongdoing. Protection for whistleblowers would include shielding their identities and providing more support for their efforts including financial support, when required.

“Whistleblowing must not be perceived as an act of betrayal but as an act of loyalty toward society,” Charbonneau said.

She is also recommending public consultations on whether municipal politicians’ mandates should be limited to prevent influence and complacency leading to corruption. Several recommendations focus on reforms to political financing rules, including removing tax credits for political contributions to shield political party financing from influence.

Other recommendations include:

  • Requiring construction companies to report acts of intimidation or violence
  • Increasing penalties for construction companies that break the law, up to and including cancelling their licences under Quebec’s building authority, la Régie du bâtiment du Québec
  • Increasing penalties for people who make use of so-called “strawman” schemes (“get out of debt free” scams)
    • The province’s Liberal Premier Philippe Couillard said his government will “closely study the recommendations.”

      The commission believes that because of this inquiry, the Quebec government, regulators and the public have better resources to understand, correct and modify some of the identified problem behaviours. The reaction of the public when such behaviours are reported in the media further demonstrates how much their work has served to educate. The population is now more than ever aware of the issues inherent to collusion and corruption in the construction industry and those of the financing of political parties.

      The inquiry allowed us to better understand the workings of criminal organizations and the interest and infiltration they have in politics, the economy and the construction industry. The commission’s recommendations therefore arrive in fertile soil, and now that the sun is shining on this corruption, Quebeckers will likely demand the government take action. It will certainly look bad on the Liberals if they do not act quickly or if their actions appear insufficient, especially that this inquiry cost the taxpayers around 45 million dollars. We’ll keep watching!

A2J: “Let Them Eat Cake,” So, Let Them Use Alternative Legal Services

The cynical phrase, “Let Them Eat Cake,” is more appropriately attributed to Marie-Thérèse, the wife of Louis XIV, 100 years before Marie Antoinette, the wife of Louis XVI of France, about whom such royal indifference to starving peasants pleading, “bread, bread,” is alleged most frequently. If they were begging for bread, they certainly didn’t have cake. So to prevent a law society from appearing to be equally indifferent to the suffering of people who cannot afford lawyers, how should law society benchers explain their intense promotion of alternative legal services, and the resulting cynical phrase: “let them use alternative legal services”?

I’ve written several articles having the theme that instead of offering the residents of Canada alternative legal services, its law societies should be trying to solve the unaffordable legal services problem, i.e., that the majority of the population cannot obtain legal services at reasonable cost. For a detailed presentation and analysis of the alternative legal services provided by Canada’s law societies, see: “Access to Justice: A Critique of the Federation of Law Societies of Canada’s Inventory of Access to Legal Services Initiatives of the Law Societies of Canada.”

By advocating the use of alternative legal services a law society declares to that majority: “Never again will you have an affordable lawyer who will do all the work needed to deal with your legal problems. But, we have the following alternative legal services.” Such “alternatives” are based upon a strategy of “cutting costs by cutting competence.” They are, for example,

  • targeted (unbundled) legal services (as distinguished from a full retainer to provide all of the legal services necessary to deal with clients’ legal problems);
  • clinics of various types;
  • paralegal and law student programs;
  • family mediation services;
  • social justice tribunals;
  • arbitration and mediation for alternative dispute resolution;
  • public legal education and information;
  • advice from non-lawyers;

And other support services, for example:

  • summary advice and referrals;
  • public legal education and information
  • assessing legal needs (surveys);
  • prepaid legal insurance plans;
  • self-help and legal information services;
  • court procedure simplification projects;
  • The National Self-Represented Litigants Project
  • pro bono and low bono (reduced fees instead of pro bono’s no fees);

These programs provide some improvement in access to justice and legal information, but far from enough to provide a solution to the unaffordable legal services problem. Therefore they should not be used as a replacement for lawyers’ providing fully competent and ethically provided full-retainer legal services at reasonable cost. They should not be allowed to become the law societies’ permanent and only answer to the unaffordable legal services problem. It is contrary to the duty and purpose of law societies that alternative legal services be used as a reason for not attempting to find a solution to the problem, i.e., “let them ‘eat’ alternative legal services instead.”

And all of them should not be referred to, as the above cited, “Inventory of Law Societies’ Initiatives” text does, as being, “legal services.” Some of them involve providing legal information and “self-help”; not legal services.

Such a declaration by a law society of “alternatives” to affordable legal advice services, is a confession of failure—a confession of an inability to serve its purpose in law, i.e., to regulate the legal profession so as to make legal services adequately available: e.g., s. 4.2 of the Ontario Law Society Act. So, replace them if they cannot fulfill their purpose.

Such alternative legal services mean a shifting of decision-making from judicial to administrative services. Judicial decision-making provides five advantages not adequately provided by administrative agencies: (1) a clear and exact burden of proof; (2) an opportunity to rigorously test the evidence for accuracy, integrity, and persuasiveness; (3) a thorough debate as to the correct interpretation and application of the law for the issues and evidence involved; (4) a decision by a truly impartial and competent adjudicator; and, (5) the right to a jury trial, in situations allowed by law. When an “administrative” approach replaces a judicial approach to decision-making, the counterparts to the first four are much compromised by the limitations, weaknesses, conventions, biases, and institutional cultures of the administrative agency.

But unfortunately and nevertheless, a “cutting costs by cutting competence” strategy is being used to cope with the unaffordable legal services problem. Because no effort is being made by law societies to provide the leadership to replace the obsolete method by which legal services are provided, that “shifting” away from the judicial to the administrative will increase. For that majority that cannot afford legal services, particularly lawyers’ legal advice services, the courts will become much less important. The trial courts will be used only by rich litigants and for criminal trials. In the public mind, being a trial judge will be associated with only those purposes—to provide the rich with expert adjudication and protection.

To the contrary, the independence of the legal profession from government intervention is essential not only to the independence of the judiciary, but also to respect for the judiciary. But current law society performance invites government intervention, and makes public respect for the justice system more difficult to maintain.

And this transition from “the judicial to the administrative” is happening without participation by the public and without public approval. There is a “democratic disconnect” in that law societies’ duty is to the public, but benchers are elected by the members of their law societies. Members’ complaints receive benchers’ attention and that public duty is very inadequately dealt with, if not ignored. And governments are not holding law societies accountable for their use of the legal profession’s monopoly over the provision of legal services. And “lay benchers” are not the experts or “voice of the people” needed. This is the 21st century, not the 19th century. And law societies don’t have a government-type civil service to provide the necessary continuing expertise for solving such problems as unaffordable legal services. Which leaves nothing within law societies’ resources to attack the problem but benchers. But they are part-time amateurs in that they don’t have the necessary expertise, nor do they try to obtain it. It is not a legal problem. It needs an expertise that lawyers and law societies don’t have.

To provide the necessary continuing and evolving expertise, a permanent, national institute should be created, available to all of Canada’s law societies. It would be funded by enabling CanLII to provide legal opinions at cost, as explained in, “A2J: Preventing the Abolition of Law Societies by Curing Their Management Structure Defects,” (Slaw, September 25, 2015).

As a result of not dealing with the problem, the way the work is done so as to provide legal services is obsolete. There has been no innovation to move from the present “handcraftsman’s” method, used by cottage industries, to a support services method of production. Wherever in the production of goods and services there has been the necessary pressure to make it happen—such as the competition of the commercial marketplace—that transition has occurred. And there are also other forms of that necessary pressure. For example, no doctor’s office provides all treatments and remedies the way a lawyer’s office does for all clients. All parts of the medical infrastructure of services are highly specialized, interdependent support services. In contrast, the law firm is a producer without comparable support services. Therefore the unaffordable legal services problem is inevitable.

It cannot be solved because law firms don’t have the necessary high degree of specialization and scaled-up volume of production that support services provide, e.g., the huge “parts industry” that provides very sophisticated support services to the automobile manufacturers. Therefore the cost-efficiency of all law firms can never be made sufficient to solve the problem. No matter how much it is improved, a bicycle cannot be made to have the speed, capacity, and cost-efficiency of a motor vehicle, nor a motor vehicle with wings be made to serve as an airplane.

All that has been written about the problem is based upon the assumption that the solution lies in bringing about the right improvements to the present method of providing legal services. The cause of the problem is not the lack of the right improvements, but rather the method itself. It hasn’t ever changed. Doctors used to work separately and individually like lawyers still do now. But since then, there has been constant pressure to force constant innovation in the methods of delivering medical services. There has been no comparable pressure on the legal profession, therefore there has been no comparable innovation. And worse, there has been no innovation in the management structure of law societies, and as a result, no leadership to bring about the necessary innovation in the production of legal services.

So it is that the third most important professional service provided to the public (after medical and educational services) is managed by part-time amateurs, just as it was when Canada’s law societies were created. If they had had strong leadership instead of leadership dedicated to maintaining its popularity with their lawyer-members, the legal health of Canadian communities would be considered to be as important to their wellbeing as their medical health, and their lawyers as important to them as their doctors. Instead, in the present circumstance wherein the majority of the population cannot obtain affordable legal advice services provided by lawyers, an attitude and performance that says, “let them use alternative legal services,” is an invitation to a brutal revolution—a revolution that will bring about the amputation, if not the complete elimination, of law society powers, purpose, and prestige.

To provide a more in-depth analysis, I’ve written these articles (pdf downloads from the SSRN):

(1) “A2J: Preventing the Abolition of Law Societies by Curing the Defects in their Management Structure: A Solution to the Unaffordable Legal Services Problem” (24 pages);

(2) “Access to Justice — Unaffordable Legal Services’ Concepts and Solutions” (35 pages);

(3) “Access to Justice Support Services or Government Intervention — A Solution for Canada’s Unaffordable Legal Services Problem” (67 pages);

(4) “Access to Justice – Canada’s Unaffordable Legal Services – CanLII as the Necessary Support Service” (65 pages).

Cyber Security Report Card

Cyber security

Cybersecurity was a major topic at the recent Canadian IT Law Association conference. It can be a daunting subject to ponder when dealing with various types of services, cloud providers, and the methods, standards and assurances available to lower the risk of a security breach. Cyber insurance to cover some of these risks is a growing field.

This Cyber Security Report Card (pdf) is a good high level summary of the things that businesses should think about when considering security issues for their organization. It was provided by one of the luncheon speakers, John Millar of Digital Boundary Group, which is an IT security testing firm.

(For transparency, Digital Boundary Group is a client of mine.)

Female Candidates Preferred? When Job Postings Time Travel…

A Toronto web design company recently published a job posting for a writing job indicating that “female candidates are preferred”, seemingly time-warping back to the Mad Men era… Specifically, the position was for a content writer and search-engine optimization specialist on LinkedIn. However, the posting also indicated that the successful candidate will need to fulfill the “responsibilities of a receptionist, so female candidates are preferred.”

Not surprisingly, the job posting has attracted negative attention on twitter and news outlets have picked up the story. The company responded on Twitter and LinkedIn by stating that they “did not mean to discriminate against any particular gender or group in [the] job ad. We believe in promoting diversity.” However, it appears that the damage was already done.

In addition to the danger of criticism on social media and in the media, employers should be aware that such job postings could lead to violations of the Ontario Human Rights Code (the “Code”). Under section 23(1) of the Code an employer will infringe on the right to equal treatment in employment when a job posting or advertisement directly or indirectly classifies or indicates qualifications by a prohibited ground of discrimination.

For example, employers should generally avoid making any statements, qualifications, or references that directly or indirectly relate to the sex of a potential candidate. When setting job requirements, employers must be careful to avoid erecting barriers based on Code grounds. When determining what is required for a new job, employers should ensure that the requirements are bona fide and not based on stereotypical assumptions linked to Code grounds (disability, race, or sex).

While society has progressed significantly on this issue in recent years, there is clearly more progress to make.

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. R. v. Hecimovic, 2014 BCCA 483

[50] The trial judge expressly dealt with, and dismissed, the Crown’s theory that the respondent drove in a deliberately dangerous manner, within the meaning of s. 249(1)(a) of the Criminal Code. The question on this appeal is whether the trial judge erred in law in the manner in which she addressed what remained of the Crown’s case: that the driving was such a marked departure from the standard expected as to establish mens rea on an objective basis by inference and attribution, and that the respondent’s own evidence did not support an exculpatory defence.

(Check for commentary on CanLII Connects)

2. Markovic v Richards et al., 2015 ONSC 6983

[7] While it is clearly the plaintiff’s prerogative to obtain ATE insurance, I do not accept that such premium should be reimbursed by the defendants as a compensable disbursement. Such disbursements have not, as far as I am aware, ever been entertained in Canada and have certainly not been the subject of legislative reform as was the case in the UK. I can think of no policy reason that such should be compensated as a taxable disbursement. Existence of the policy may well provide comfort to the plaintiff, it is however an expense that is entirely discretionary, does nothing to advance the litigation, and may in fact even act as a disincentive to thoughtful, well-reasoned resolution of claims. I do not think it fair and reasonable that an insurer be expected to cover the disbursement for this payment of premiums. Moreover, as I understand it, ATE insurance is offered by DAS Canada, a full service legal expense insurer that is recognized by the Canadian Bar Association. DAS provides legal expense coverage that can be purchased by individuals who need to pursue legal action, covering disbursements and adversary costs in the event of an unsuccessful case. It appears that the premium is only payable if the case is successful.

(Check for commentary on CanLII Connects)

3. McCallum-Boxe v Sony, 2015 ONSC 6896

[13] It must be obvious to anyone who gives this even a moment’s thought, that this type of settlement-driven legal fees arrangement in class action litigation is fundamentally and profoundly unacceptable. It provides all the wrong incentives. The MLG arrangement discourages maximum commitment on behalf of the class because even if class counsel should win at trial, they will not be entitled to any compensation, whether from the recovery (no such agreement is in place) or via the plaintiff’s claim for costs (no costs can be awarded because the representative plaintiff has no liability to pay legal expenses.[5]) The MLG arrangement encourages only a minimal commitment on behalf of the class leading to sub-optimal settlements negotiated by class counsel who are primarily interested in recovering a generous legal fees payment.

(Check for commentary on CanLII Connects)

The most-consulted French-language decision was Garbeau c. Montréal (Ville de), 2015 QCCS 5246

[5] Il n’existe pas de droit constitutionnel général et absolu de manifester sur un chemin public sans aucun encadrement législatif ou réglementaire. En effet, l’accès à la voie publique pour exercer le droit constitutionnel de manifester doit s’harmoniser autant que possible avec les fonctions habituelles de ce lieu.

[6] Dans le présent dossier, le débat porte sur la question de la constitutionnalité de l’article 500.1 du Code de la sécurité routière (« CSR »)[1]. La question se soulève à la suite du dépôt d’accusations contre plusieurs personnes présentes à une manifestation dénonçant la brutalité policière le 15 mars 2011. On leur reproche une contravention à l’article 500.1.

(Check for commentary on CanLII Connects)

* 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

Access to Justice Reform and the Data Deficit- Some Lessons Learned

On September 15, 2015 the Canadian Forum on Civil Justice (CFCJ) published Civil Non-Family Cases Filed in the Supreme Court of BC – Research Results and Lessons Learned. This study is one piece of a larger, five year “Cost of Justice research initiative being undertaken by CFCJ with the goal of defining the economic and social costs of justice on two fronts: the cost of delivering access to justice, and the cost of not delivering access to justice.

The study was conducted by Focus Consultants of Victoria, B.C. in 2014 and 2015 in the Supreme Court of British Columbia. It was premised on the fact that, while we know that approximately 2% of cases filed in section 96 courts resolve by trial, we know almost nothing about what happens to the other 98%. The assumption was once commonly made that because these cases are not tried, they have settled. However, research into unmet legal need and unrepresented litigants suggests that many of these cases do not ultimately resolve.

Accordingly, the study aimed to learn more about the trajectory, characteristics and outcomes of these cases, and about the experience of the claimants in terms of their satisfaction, ancillary costs incurred and other impacts. Because the study was particularly interested to acquire data on the proportion of civil cases that appear to drop out or remain unresolved, it is referred to as “the attrition study.” It also intended to address questions about why cases do not continue within the court system and what happens to the claims, and the claimants, after they leave the system.

Numerous reports exploring remedies to the access problem call for studies like this. They observe that current reform efforts are being seriously handicapped by a paucity of hard, empirical data about Canada’s civil justice system. They observe that much data is simply not captured. The data that does exist is low quality and fragmented, and there is limited capacity in the system to organize or use it.

The attrition study experienced these difficulties first hand. It confronted multiple problems in trying to collect data from the 500 motor vehicle accident and general civil (non-family) files in the study. The researchers experienced diverse challenges related to the definition and extraction of an appropriate sample of cases, limitations related to the currency and completeness of court records, an inability to contact claimants to discuss their court experiences, a lack of understanding by claimants of the civil legal processes they were involved in, and an inability to engage civil lawyers in the research.

In an effort to address these constraints, changes were made to the original methodologies used in the research. In the face of incomplete or uninformative file records, unavailable claimants or claimants with little understanding of the process or outcome of their case, telephone interviews were conducted with lawyers who represented the claimants in the original sample. There is little incentive for counsel to take the time for such interviews and, when they do, confidentiality concerns mean that questions about specific claimants cannot be answered. The researchers collected what general information they could from lawyers.

Having to rely on very small samples, the researchers reported findings from both claimant and lawyer surveys. These findings tentatively suggest, for example, that a majority of motor vehicle accident and general civil cases do eventually settle. A number of factors may impact these findings, including the apparent significant impact of contingency fee arrangements on the settlement rates in personal injury cases. Ultimately, the results were not robust enough to support conclusions that could be reliably generalized to these or other civil non-family cases in BC.

Despite the want of generalizable findings, the attrition study does potentially add value to the future development of research related to civil court processes and the experiences of litigants. The report includes a detailed discussion of the research challenges that were encountered, their impacts and the attempts that were made to address them. Many of these challenges will be relevant to other researchers and to institutions attempting to conduct research involving civil court records or claimant perspectives. The report includes recommendations to improve the planning and implementation of this type of civil justice research.

In this respect, the report observes that to understand the factors that impede or facilitate access to justice, it is essential for researchers to be able to engage with users of the justice system. “For this engagement to occur, it is also necessary for government, the courts and justice organizations to appreciate the factors that facilitate or impede researchers’ access to users and/or information about the user experience.”

The report stresses, for example, the value that would be served by complete and accurate court records that reflect current file status as well as information as to whether and how a case has been resolved. Court files that disclose case trajectories and the nature and timing of case outcomes in more detail would be enormously useful from a justice research perspective.

It would also be useful to be able to ascertain from court files when ADR or informal judicial settlement processes are used, and to differentiate between represented and self-represented litigants, as well as between individual, small business and corporate parties. Registries are urged to consider if forms initiating process could break down case types with more particularity, and consistently include contact data for the parties.

The Canadian Bar Association and the national Action Committee on Access to Justice in Civil and Family Matters have been trying, over the last couple of years, to stimulate interest nationally in empirical justice research. They are motivated by the recognition that effective justice reform must be founded on a much more comprehensive and empirically sound understanding of the operation of the justice system. In furtherance of that objective, the attrition study’s recommendations should be considered by those in the justice system with control over data collection.

By M. Jerry McHale, QC – Lam Chair in Law and Public Policy, University of Victoria

Wishing You Happy Holidays … if Canada’s Anti-Spam Law Permits

The holiday season is an important season to focus on good will and the profound messages that the holidays celebrate. Many organizations use the holiday season to communicate with clients and associates to share that sentiment. For example, an organization may wish to invite individuals to a holiday-themed party, or simply send a seasonal greeting. What many organizations may not have considered is whether these benign-seeming messages will attract seven-figure liability.

Canada’s Anti-Spam Law, more commonly known as CASL, generally provides that a sender must obtain the consent of a recipient before sending a “commercial electronic message,” or “CEM,” to that recipient. Exemptions might also apply.

The threshold question for an organization to consider here is whether an invitation to a holiday-themed party, or even a simple greeting, constitutes a CEM for the purposes of CASL. Like so many aspects of CASL, answering this question is not straight forward.

CASL defines a CEM to include any electronic message that “it would be reasonable to conclude has as its purpose, or one of its purposes, to encourage participation in a commercial activity.” The term “commercial activity” is defined to mean any act or conduct of a commercial character. While no court has as of yet interpreted the intended scope of this term, a broad reading suggests that it might include holiday-themed messages sent from an organization to its business affiliates intended to promote the relationship. By contrast, use of the interpretive approach that provides that an unclear word’s meaning may be known from the accompanying words, suggests the provision may be construed by its relation to other terms in the list of activities which are deemed commercial, namely “offers to purchase, sell, barter or lease a product, goods, a service …”. In that case, it seems unlikely that a bare holiday greeting, absent further commercial content, would have as its purpose the encouragement of participation in a “commercial activity.” However, the term “one of its purposes” complicates this analysis.

In some instances, organizations send holiday greetings – and may also host holiday themed events – for multiple purposes, including marketing, and may include in the content of the message marketing language or promotions. If we read “one of its purposes” very broadly, then it may be the case that a holiday greeting sent primarily for altruistic purposes or the expression of good will would nevertheless be captured, as it would have as “one of its purposes” marketing. If we interpret the term more narrowly, then the range of messages captured may shrink – for example, a party invitation where a product will be demonstrated may continue to fall within the definition, while a simple greeting may not.

Further complicating this matter, the CRTC – which enforces CASL – has made only limited statements on how it interprets the definition of a CEM. For example, in cross-Canada information sessions conducted in 2014, prior to the implementation of CASL, the CRTC took the view that sending a mere informational report, without more, such as a report on a case or a new law, is not a CEM, even if a firm had its logo and a link to its website on the message. If that public announcement reflects the approach that is adopted in practice and confirmed by the Courts, then it suggests a more pragmatic and less expansive approach to the interpretation of commercial intent. However, the CRTC has not made further or written statements on its position since 2014. Further, its enforcement history to date suggests that technical violations – such as a difficult-to-use unsubscribe mechanism in the case of Plenty of Fish – may attract scrutiny.

If an organization determines that its holiday greeting does suggest any meaningful encouragement of commercial activity, then such greeting may constitute a CEM. The next question to consider is whether or not CASL exempts the message from the general rule. Depending on the facts, a number of exemptions may apply. For example, in the event that the sender and the recipient have a “personal relationship,” as narrowly defined in the legislation, then no consent will be necessary to send the holiday greeting. Similarly, registered charities may find that their holiday greetings are exempt in the event that such messages have as their primary purpose the raising of funds – this exemption will likely apply more where a request for donation accompanies a holiday greeting.

The “business to business” exemption may also apply in a number of situations. This provision exempts CEMs sent by employees or representatives of an organization to employees or representatives of another organization, provided that the organizations have a relationship and the message concerns the activities of the recipient organization. In the situation where an organization sends a bare holiday greeting to the personnel of a business affiliate, it would be difficult to argue that this exemption does not apply. The question turns on whether building good will, or otherwise encouraging employees to network with the employees of business associates, constitutes an activity of the recipient organization. In most cases, it is suggested that networking and relationship management constitute business activities in which we suggest almost all organizations participate. Of course there may be outlying situations in which such activities do not constitute activities of a recipient organization. We further note that this conclusion assumes that the sender organization and the recipient organization have had dealings sufficient to constitute a “relationship,” a term which unhelpfully has not been defined. Senders should not rely on this exemption to spam employees of unrelated third parties.

In the event that no exemption applies, an organization wishing to send a holiday greeting which is likely a CEM will need to comply with the consent provisions of CASL.

CASL recognizes two kinds of consent – express and implied. The former requires a positive action on behalf of a recipient, while the latter arises in certain factual situations. Fortunately, in contemplation of CASL coming into force last year, many organizations attempted to do two things: (1) determine whether implied consent existed for some or all members of the organizational “rolodex;” and (2) seek express consent from those individuals for whom implied consent did not exist. Further, once CASL came into force, many organizations pruned non-consenting addresses from their contact lists.

As a result of this due diligence, many organizations are reasonably comfortable that they hold some type of consent for all individuals on their mailing lists. For these organizations, sending non-exempt holiday greetings that are CEMs will require little extra effort. However, in the event that an organization has not undertaken due diligence in respect of its lists, or in the situation where an organization has a separate list for holiday-themed greetings – for example, party invitations – that organization will need to undertake further due diligence before moving forward.

Finally, all organizations that determine their holiday greetings constitute non-exempt CEMs will need to satisfy the required formalities and disclosures under CASL.

What is the best approach to compliance here? It seems less likely – though not impossible – that the CRTC will interpret CASL in any way that results in a prohibition on the sending of legitimate benign holiday greetings. Such a position may well raise constitutional issues that may well result in assessment of the legislation in light of fundamental constitutional protections, such as free speech, by the Courts. It seems perhaps possible that the CRTC will adopt a moderate approach with respect to benign holiday greetings just as has been the case for the CRTC’s public position on mere factual reports taken in 2014.

Given that many organizations have already chosen to undertake due diligence with respect to their mailing lists, the question of non-compliance may not even arise for those organizations. As such, it seems that, in many cases, holiday cheer will continue to flow. For those organizations which have not developed their compliance programs the consideration of doing so for their holiday mailings may help them get to a cheerier place for the New Year and thereafter. 2017 is not too far off, and the likely commencement of private actions and class action law suits mean all organizations should ensure they are well prepared.