Slaw

Willie Nellson is performing in Confederation Park on the summer solstice this Friday. In anticipation I’ve had my favourite Willie Nelson song stuck in my head all week: (yes this blog post is mostly an excuse to play this song).

A few years ago around the time of my call to the bar I sent my parents a video of myself doing a karaoke to this song. They were proud parents of a lawyer-to-be and thought they’d appreciate Willie’s advice to mothers that they should make their kids be “doctors and lawyers and such” (and more central to the song, not let them grow up to be cowboys).

Every so often I have days where I rethink Willie’s wisdom. Recently, when I found myself waiting in line at the courthouse registrar between two extremes: one neighbour was seemingly senior member of the defence bar boasting loudly about the various inventive ways in which he’s gotten clients off on domestic assault charges, and in the same loud tone how women tend to exaggerate claims of assault. On one side of me, and an apparent self-represented litigant who had turned to me to tell me that lawyers actually love waiting in these lines cause they get paid “big bucks” to do it and that “all lawyers were scumbags.”

I sat disappointed in silence instead of challenging my colleague on his assertions about women or over the appropriateness of his very public tale telling and I bit my tongue at the urge to correct the man on my other side on both his assumption about what type of bucks I made and whether or not I was a scumbag. Instead I contemplated my spot in this line and wondered if I’d rather grow up to be a cowboy.

Yesterday the Digital Public Library of America launched a partnership with HathiTrust, marrying the preservation mission of one with the access strengths of the other. The partnership will have the DPLA—itself only a couple of months post-launch—employ HathiTrust's metadata to improve discoverability of and access to that content in HathiTrust that is in the public domain or otherwise freely available. HathiTrust's own discovery and access platform will continue to develop as well. As has been noted previously here and elsewhere, HathiTrust preserves a fair amount of content useful for legal research.

Details of the partnership are in yesterday's launch announcement:

According to HathiTrust Executive Director John Wilkin, the partnership reflects the complementary nature of the two organizations. “The first priority of HathiTrust has always been preservation,” he said. “But to fulfill the preservation mission, we must provide access: content that can’t be found and used risks being forgotten.”…DPLA puts HathiTrust’s collection before a broader audience, alongside innovative search and use tools, including timelines, maps, and a growing number of apps.

Of HathiTrust’s nearly 11 million volumes, the metadata records associated with the almost 3.5 million that are freely available will be accessible on the web at dp.la, and through the DPLA application programming interface (API), making HathiTrust a DPLA “content hub.” (The digitized volumes themselves will continue to reside in HathiTrust.

 …

The HathiTrust metadata will be contributed under the terms of a Creative Commons “CC0” license, and Wilkin cites the support of OCLC, the worldwide library cooperative, for the contribution of records possibly derived from its WorldCat database.

A recent decision by a New York federal judge has raised a number of issues concerning unpaid internships. It was decided in this case that two interns working on the set of the film Black Swan should have been paid, given that the work they accomplished did not meet the six criteria used for determining that an internship may be unpaid, as published in a fact sheet by the U.S. Department of Labor (which are interestingly the same criteria published by the Ontario Ministry of Labour):

1. The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;

2. The internship experience is for the benefit of the intern;

3. The intern does not displace regular employees, but works under close supervision of existing staff;

4. The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded;

5. The intern is not necessarily entitled to a job at the conclusion of the internship; and

6. The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

The judge found that the interns basically did the same work as paid employees. Other lawsuits have been commenced in the United States regarding unpaid internships.

In this summer season when many young people wish to gain experience and may accept unpaid internships, what should the status of unpaid interships be? Provincial employment standards legislation may exclude trainees who are part of a vocational training program from minimum wage provisions; however, it is not always clear how other types of unpaid internships are treated across the board. There seems to be just as many arguments for unpaid internships (contacts, gaining precious experience, etc.), as there are against (immoral, they skew the market, etc.) . What do you think?

On Monday I chaired a joint LSUC /IT-Can afternoon on IT privacy law. One of the panels was on the anti-spam act, including representatives from the CRTC and Industry Canada. While there is no clear implementation date yet, Industry Canada expects the final Industry Canada regulations will be out in late summer or early fall. When those come out, an implementation date will be announced. Industry Canada is recommending that there be an implementation delay of several months to allow business to comply, but that decision is ultimately in the government's hands.

The legislation is very complex, with exceptions layered on exceptions. The CRTC, which is the prime enforcer of the law, has published some guidelines, will publish more, and will also publish FAQ's. So essentially, to understand the legislation, one has to look at the act, the regs, CRTC and perhaps Industry Canada guidelines and explanatory material.

That's fine when dealing with the CRTC's enforcement, but makes me nervous as one might rely on that, then be faced with an individual lawsuit or class action where a judge disagrees with the CRTC's interpretation.

Today, the Women Lawyers Forum of the Manitoba Bar Association is gathering to honour and celebrate women appointed to the Bench in Manitoba or retiring from the Bench. Celebrating Success is an annual event to acknowledge the contribution these members of the judiciary have made to our profession, and to the cause of gender equality.

The event today recognizes Judge Cynthia Devine and Judge Margaret Wiebe, both appointed to the Provincial Court and Madam Justice Diana Cameron, promoted to the Court of Appeal from the Court of Queen’s Bench.

While it is always a lovely evening, I find myself wishing that the appointment of women lawyers to the Bench would by now have become commonplace, so as not to merit the hosting of an annual reception. And at the same time, I wish the list of those being honoured were longer and more reflective of the diversity of Manitoba population.

In Manitoba, we are progressing toward gender balance on the Bench. A review of the Manitoba Courts website reveals that:

• In the Court of Appeal, 4 of 9 Justices are women;
• In the Court of Queen’s Bench, 14 of 42 Justices are women; and
• In the Provincial Court, 20 of the 44 Judges are women.

The gender balance in Manitoba’s Courts is approaching proportionality with the population level gender distribution, with the exception of the Court of Queen’s Bench where there is still a ways to go.

But twenty years after the Touchstones Report, we still have not achieved equality for women in the legal profession, despite a wide range of efforts and initiatives designed to promote that goal. I wonder when we will arrive; whenever I raise this issue in conversation, I sense a weariness among those who have been working toward gender equality for decades, and concurrently, a lack of engagement with the cause among those more recently called to the Bar.

Indeed we have made progress since 1993, but I cannot yet foresee the end of this conversation. Until that day arrives, I expect I’ll continue to join my colleagues annually to celebrate the success of the remarkable women recently appointed to the Bench.

A brand new peer-reviewed academic journal has just come into being and is issuing a call for papers. The Journal of Open Access to Law (JOAL) is a project of Cornell's Legal Information Institute (LII), the Italian National Research Council's Institute of Legal Information Theory and Techniques (ITTIG-CNR), and the Institute of Law and Technology (IDT) of the Autonomous University in Barcelona.

From the main web page:

JOAL is an open-access, peer-reviewed academic journal of international scope. Its purpose is to promote international research on the topic of open access to law.

JOAL provides an international forum for academic researchers as well as for practitioners of open legal publishing. Central topics of concern include

• critical construction of legal information methods
• governance of new models of legal publishing
• the relationship between open-access legal information and technology
• projects in open access to law
• the technical challenges and economic opportunities created by open access to law and public sector information
• the economic dimensions of open access to law
• trends and changes suggested by the globalization of access

JOAL is meant to stimulate and promote an interdisciplinary approach to law, relocating classical topics in a new framework at the crossroads of law and history, law and literature, law and philosophy, law and technology, and law and AI.

As you'd imagine, given the project founders, there's a pretty impressive international team of editors, including among them Colin Lachance, President of CanLII (and a Slaw columnist).

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 the week of November 28 to December 4th:

1. Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd. 2013 SCC 34
   

   [3] The legal issue at the heart of this case is the interpretation of the management rights clause of a collective agreement. This is a labour law issue with clear precedents and a history of respectful recognition of the ability of collective bargaining to responsibly address the safety concerns of the workplace — and the public.

2. Wilson (Re) 2013 CanLII 31599
   

   35. Wilson had the dubious distinction to have had the first positive test for Yohimbine in Canada. Chambers said that Yohimbine has potential performance enhancing characteristics to “pump a horse up” and to make the horse “go faster”. Yohimbine is a “reversal agent” designed to reverse sedation in horses. Chambers said that there are serious potential adverse side effects for the racehorse with the use of this drug.

   The Issue

   49. What is the appropriate penalty?

3. R. v. Brumble 2013 ONCJ 308
   

   2. In early August, 2012 a friend of Mr. Brumble’s offered, in a series of text messages, to hook Mr. Brumble up with a pretty girl with a long nose and six teeth for $1,800. She was a bit old for him, 38, but his friend said she rotated around men. It was the beginning of Mr. Brumble’s misfortune that his private communications were the object of police interception and it didn’t improve things that his code, like most codes used by gun and drug dealers, was rather transparent. The long-nosed girl with dental challenges was easily recognizable to the police as a deal for Mr. Brumble’s friend, Abadir Jimale to sell Mr. Brumble a .38 calibre revolver with six rounds of ammunition. Thus, it was not by sheer coincidence that Mr. Brumble found himself admiring his new girlfriend in the front seat of a van minutes after meeting her only to have the police crash the date and instantaneously place him in custody, where he has remained ever since.

The most-consulted French-language decision was Syndicat canadien des communications, de l’énergie et du papier, section locale 30 c. Pâtes & Papier Irving, Ltée 2013 CSC 34

[3] La question juridique au cœur du présent litige est celle de l’interprétation de la clause de la convention collective prévoyant les droits de la direction. C’est une question relevant du droit du travail qui a fait l’objet de précédents clairs et d’un historique de reconnaissance respectueuse que les négociations collectives peuvent traiter de manière responsable des enjeux de sécurité en milieux de travail — ainsi que de ceux relatifs à la sécurité du public.

In theory, Canadians are pretty comfortable with the polluter pay principle, at least when it applies to other people. (We do not seem to feel the same way about carbon taxes.) In theory, the polluter-pay principle ensures that polluters, rather than the public or the immediate victims of pollution, bear the cost of repairing damage done to the natural environment.

As described by the Supreme Court of Canada in Imperial Oil Ltd. v. Quebec (Minister of the Environment):

In fact, that principle has become firmly entrenched in environmental law in Canada. It is found in almost all federal and provincial environmental legislation, as may be seen: Canadian Environmental Protection Act, 1999, S.C. 1999, c. 33; Arctic Waters Pollution Prevention Act, R.S.C. 1985, c. A‑12, ss. 6, 7; Fisheries Act, R.S.C. 1985, c. F‑14, s. 42; Waste Management Act, R.S.B.C. 1996, c. 482, ss. 26.5(1), 27(1), 27.1, 28.2, 28.5; Environment Management Act, R.S.B.C. 1996, c. 118, s. 6(3); Environmental Protection and Enhancement Act, R.S.A. 2000, c. E‑12, ss. 2(i), 112, 113(1), 114(1), 116; Environmental Management and Protection Act, 2002, S.S. 2002, c. E‑10.21, ss. 7, 9, 12, 14, 15, 46; Contaminated Sites Remediation Act, S.M. 1996, c. 40, ss. 1(1)(c)(i), 9(1), 15(1), 17(1), 21(a)); Environmental Protection Act, R.S.O. 1990, c. E.19, ss. 7, 8, 43, 93, 97, 99, 150, 190(1); Pesticides Act, R.S.O. 1990, c. P.11, ss. 29, 30; Ontario Water Resources Act, R.S.O. 1990, c. O.40, ss. 16.1, 32, 84, 91; Crown Forest Sustainability Act, 1994, S.O. 1994, c. 25, s. 56(1); Environment Act, S.N.S. 1994‑95, c. 1, ss. 2(c), 69, 71, 78(2), 88, 89, 90; Environmental Protection Act, S.N.L. 2002, c. E‑14.2, ss. 8(1), 9, 28, 29, Part XIII; Environmental Protection Act, R.S.P.E.I. 1988, c. E‑9, ss. 7, 7.1, 21; Environmental Protection Act, R.S.N.W.T. 1988, c. E‑7, ss. 4(2), 5.1, 6, 7, 16. (See R. Daigneault, “La portée de la nouvelle loi dite ‘du pollueur‑payeur’” (1991), 36 McGill L.J. 1027.) That principle is also recognized at the international level. One of the best examples of that recognition is found in the sixteenth principle of Rio Declaration on Environment and Development, UN Doc. A/Conf. 151/5/Rev. 1 (1992).

In practice, however, the actual polluter is often no longer around. When a choice must be made between doing nothing, paying from the public purse, or imposing the costs on the innocent, regulators are increasingly turning to picking the pockets of the innocent. Is this good public policy?

A classic recent example is Kawartha Lakes (City) v. Ontario (Director, MOE). A home heating oil tank full of furnace oil spilled on private land. Everything about this is regulated by the province, which does not require such tanks to have full secondary containment, and does not require tank owners to have appropriate cleanup insurance. In this case, the homeowners’ insurance ran out before the cleanup was completed, leaving oil migrating through municipal sewers and onto the municipally owned lakefront and Sturgeon Lake. The City was entirely innocent of any wrongdoing, and had nothing to do with the spill. They argue, however, that both the homeowners and their insurers were negligent in creating the spill and in failing to clean it up.

The Ministry of the Environment (MOE) could have cleaned up the spill at municipal expense, and used its own powers to recover the cost from the homeowners. They could even have ordered the City to clean up the spill, but in a way that would have entitled the City to provincial compensation for its efforts. Instead, the MOE ordered the City to clean up the spill at municipal expense.

The City appealed to the Environmental Review Tribunal. They argued that the Order was unfair and contrary to the polluter pays principle, and should have been directed to the homeowners and those responsible for the ineffective cleanup (including the province itself). To make this argument, the City sought to introduce evidence about who was at fault for the environmental damage.

The Tribunal, however, excluded this evidence. They said that this evidence was irrelevant, because everyone knew that the City was innocent. However, they still upheld the order against the City, because the City had failed to show that there was some other effective way to protect the environment, i.e. to ensure proper cleanup of the spill. The City appealed. How could they show that there was another effective way to protect the environment, and thus avoid liability for this expensive order, if they were not permitted to bring evidence about those who were at fault?

Despite this clear and appealing logic, the Ontario Court of Appeal rejected the City’s appeal:

In this case, all agree that the appellant is innocent of any fault for the spill. I agree with the Tribunal and the Divisional Court that evidence that others were at fault for the spill is irrelevant to whether the order against the appellant should be revoked. That order is a no fault order. It is not premised on a finding of fault on the part of the appellant but on the need to serve the environmental protection objective of the legislation.

The tribunal had to determine whether revoking the Director’s order would serve that objective. Deciding whether others are at fault for the spill is of no assistance in answering that question. Evidence of the fault of others says nothing about how the environment would be protected and the legislative objective served if the Director’s order were revoked. Indeed, by inviting the Tribunal into a fault finding exercise, permitting the evidence might even impede answering the question in the timely way required by that legislative objective.

Thus, the MOE was permitted to use its Order powers to download yet more unpredictable costs onto the municipal property tax. The City is attempting to recover its clean up costs in a separate lawsuit against the homeowners, the fuel suppliers, the Province, the Technical Standards and Safety Authority, the remediation contractor, the insurer and insurance adjuster, and the fuel tank manufacturer.

Unfair orders are corrosive to the social contract and sense of justice

Environmental Orders are not, supposedly, punitive. Their aim is to ensure protection of the environment. However, orders that impose huge cleanup costs on the innocent are so instinctively unfair that they can seriously erode the social contract. This is especially so in the many cases where an innocent party has no realistic prospect of compensation, precisely because the original polluter is dead or insolvent.

Imposing cleanup costs on the innocent are something akin to an offence of absolute liability – the orderee may be “morally innocent in every sense” and yet subject to substantial financial losses. As the Supreme Court famously articulated in R. v. Sault Ste. Marie, some claim that absolute liability is justified because it is “efficient” and perhaps will ensure “a high standard of care and attention on the part of those who follow certain pursuits”. In fact, though, imposing absolute liability on the innocent is corrosive to our sense of justice, and unlikely to improve behaviour:

Arguments of greater force are advanced against absolute liability. The most telling is that it violates fundamental principles of penal liability. It also rests upon assumptions which have not been, and cannot be, empirically established. There is no evidence that a higher standard of care results from absolute liability. If a person is already taking every reasonable precautionary measure, is he likely to take additional measures, knowing that however much care he takes, it will not serve as a defence in the event of breach? If he has exercised care and skill, will conviction have a deterrent effect upon him or others? Will the injustice of conviction lead to cynicism and disrespect for the law, on his part and on the part of others? These are among the questions asked. The argument that no stigma attaches does not withstand analysis, for the accused will have suffered loss of time, legal costs, exposure to the processes of the criminal law at trial and, however one may downplay it, the opprobrium of conviction. It is not sufficient to say that the public interest is engaged and, therefore, liability may be imposed without fault…

In determining what should be done in circumstances where the polluter is bankrupt, impecunious, or simply no longer in existence, we should not brush aside concerns of fairness. Imposing cleanup costs on the innocent may get a small number of individual sites cleaned up, but it is bound to do far more harm than good in the long run.

- Dianne Saxe
- Meredith James
Thursday, May 23, 2013

I used to have a working VHS player and a copy of the movie Speed. Often a scene from the movie will pop into my (overactive?) mind when I am looking for legislation from my desk:

01:03:38 – Jack, what did he say?
01:03:42 – What's the matter?
01:03:49 – There's a gap in the freeway. – What?
01:03:53 – What do you mean? – How big is a gap?
01:03:56 – 50 feet. A couple of miles ahead.

I remember when looking for legislation at my desk was rarely a reasonable option. Today, if I can't browse my way to what I am looking for I feel (quite unreasonably) annoyed.

I should be feeling very lucky. In Alberta, we have the Alberta Law collection at Our Future Our Past: a searchable repository of bills, statutes, pre-Alberta ordinances, the Alberta Hansard and Alberta journals and the Alberta gazette. This collection is part of the Alberta Heritage Digitization Project, a non-profit endeavour that ran from 1999 to 2010. The site covers the early stuff really, really well.

I am also lucky that the Alberta Queen's Printer offers plenty of great material, including the Alberta Gazette from 1995 onward. The QP also has a very reasonably priced subscription site QP Source Professional with annual statute volumes from 1996 on, Orders in Council back to 1967, though many years are a list only and do not include the appendices where regulations are found.

In Alberta, our gap is 1991 to 1995 for annual statute volumes and 1991-1994 for regulations. No quite 50 feet of road, but unlike Sandra Bullock, I don't have access to a gas pedal to clear the gap.

Do you know where your gap is for electronic legislation in your jurisdiction?

The web is littered with movie quotes. This one came from Subzin.

Here are excerpts from the most recent tips on SlawTips, the site that each week offers up useful advice, short and to the point, on technology, research and practice.

Technology

Use Google Docs to Alter PDF Documents
Dan Pinnington

PDF documents are great when you want to make it easy for anyone to view or print a document. But what happens when you need to alter a PDF? You can, of course, do it with Adobe Acrobat or other expensive PDF Editors, but you can also do it for free with Google Docs! It’s easy. First, take the PDF you want to alter and upload it to Google Docs. . . .

Research

Check Out AccessCLE
Shaunna Mireau

Welcome news from David Whelan of the Great Library – Law Society of Upper Canada: "You can now print and download articles older than 18 months free of charge from the Law Society’s CLE collection, powered by the Great Library. The service – AccessCLE – has been 100% pay-per-view since its inception in 2007 and contains over 6,000 PDF articles going back to 2004. . . ."

Practice

Articling Tips for Students-at-Law
David Bilinsky & Garry Wise

As summer arrives, so does a new articling season throughout the nation. The future of articling has been subject of much debate over the last year. With the dust now settled on those deliberations, Canada`s law offices will, over the next few months, begin to welcome their new crops of eager and talented students-at-law. For many students, it will be the best of worlds and the worst of worlds. And since articling rarely comes with a user manual, here are a few SlawTips for Students-at-Law on succeeding and navigating through the many challenges ahead in your new articling gigs: . . .