The Friday Fillip: Friday’s Work

For the next while the Friday Fillip will be a chapter in a serialized crime novel, interrupted occasionally by a reference you might like to follow up. Both this chapter of the book and the whole story up to this point can be had as PDF files. You may also subscribe to have chapters delivered to you by email.


Chapter 8
Friday’s Work

Rangel walked to work whistling. She watched her fellow Backtonians drive the three or four blocks that their morning errands required. Walking was a city practice, she reflected, one she was glad that she had retained. On this crisp fall morning, five days after the fire that destroyed her office, there was once again a bounce in her step and now a kind of bravado that made her wave to this and that neighbour as they motored by. I am here, her attitude said, and I am not leaving. You cannot take me or leave me. This town is too small for that sort of luxury. You’ll have to take me. Have a nice day.

She hunted around for her key to the motorhome office door, finding it at the bottom of her bag and reminding herself that she should get a ring and a fob for it, otherwise it would always be hiding down among the loose Fisherman’s Friends, paper clips, last year’s lipstick, Kleenex shreds, odd buttons, uncurrencied pennies — and the lone, sealed condom her mother had bade her to carry at all times. A little surprised that she’d beaten Wally in to the office at the almost banker’s hour of eight thirty, she was glad of the moment of peace and solitude in this still strange workplace. It took her some time to figure out the new coffee maker but, once it was fired up, no time at all to brew up a tolerable mug of the stuff, which she took into her office, smiling as she did so because of the thought of the queen-sized bed that had been here. Clearly, she noted with part of her mind, she needed to take steps to . . . get a date.

A clean letter-sized legal pad with a pen square in the middle lay on her otherwise empty desk. Wally might not be here, she thought, but his presence was constant. She sat, drew a face on the legal pad, and then swivelled round to her laptop, which was on a small side table. Fifteen minutes later she had answered her emails, finished her coffee, and decided how she would tackle the day. She pulled her cellphone out of her pocket and placed it on her desk, checking the time as she did so. It was now ten after nine, so she could make her phone calls, the first and most important of which would be to her client, Gladys Tremaine. It was time to touch base with her and report on the little progress that Rangel had made.

She picked up the landline phone that Wally had installed, heard a reassuring dial tone, and punched in the numbers. She’d arrange to meet her, rather than just report over the phone. Good client relations.


“WHOA, LOOK AT YOU!” Rangel’s expression was one of mingled concern and amusement. Mitman had dark bags under his half-closed eyes and there was a general droop to his being.

“Shh!” he said, bringing a finger up to his lips and almost missing them.

“Night on the tiles?”

“No one says that anymore. Why are you so old?”

“Why are you so . . . wasted?”


“Right.” Then Rangel frowned. “Here? In Backwater?”

“There’s a club,” said Mitman vaguely. He was holding on to the doorway.

“I haven’t heard of it.”

“You wouldn’t. Certain members only. Your fault. Was you talking about dancing that got me . . . fired up. Be it on your head.”

“I don’t think so.” Rangel smiled and shook her head in mock disapproval. “You just started the weekend a little early.”

“Weekend starts noon Wednesday. It’s already Friday.”

More head shaking. “Go home,” she said.

Mitman made to go, then stopped. “No, I should —”


“If . . .”


He went.


THE BODY WAS GONE AND the ambulance with it. Nancy Tomasini, one of the town’s police officers, was conferring with a provincial cop beside the crumpled Toyota. “Airbag didn’t deploy,” said the provincial. He was leaning on the driver side door frame, peering in.

“Nineteen-ninety-one,” said Tomasini. Didn’t have them in Tercels then. Came in a year later, I think.”


The provincial, who’d introduced himself simply as Goff, withdrew his head and looked at her. “Car nut?” The smell of blood was strong inside the car and he blew air out of his nose to clear it away.

She made a face. “Expert,” she said. And then she shrugged, relenting. “It’s a hobby of mine. I’ve got a few old machines I work on.” No point in explaining to this guy that one of them was a restored-to-mint-condition, powder blue, 1962 Mark II Austin-Healey Sprite that was so beautiful it would make you cry. And if it didn’t, to hell with you.

“Cool,” Goff said, clearly not meaning it. He was thinking this was pretty much a routine single vehicle accident. Driver losing control, probably drunk, going off the road and hitting a tree. The front end was collapsed and folded like some misshapen accordion, engine block halfway into the passenger compartment. It would not have made a pleasant sound.

He was impatient to be on his way back to the barracks and his lunch. His wife had packed him a big ham sandwich and an extra slice of the strawberry rhubarb pie they’d had last night. They were getting on well, for a change, and the lunch was a kind of reward and love token, which made him especially hungry.

“Kid had his seatbelt on,” Tomasini said.

“Automatic,” Goff said. “Doesn’t mean he was sober, being careful.”

“Still,” mused Tomasini.

Goff yawned. “Maybe the kid fell asleep,” he said. “We don’t have a time on it.”

“No obvious reason.” She waved at the straight road. “Vehicle coming the other way might have been at fault.”

“Good luck proving that.”

She nodded. “No braking marks. Hit it full tilt.”

They were waiting for the forensic tow truck. Tomasini had initiated the request that the provincials hold the wreck until the autopsy and the investigation had determined that there was no evidence of its being other than a single vehicle accident. Goff had been prepared to make that call right there on site but had deferred when Tomasini went stubborn on him. After all, it wasn’t any skin off his nose, if you didn’t count the fact that he was really jonesing for his lunch.


RANGEL DROVE AN ELECTRIC blue Ford pickup — a truck because if you were going to live in the country you might as well get a potentially useful vehicle, and the electric blue because if you were going to live in the country you might as well concede loudly that you’d come from away. She took it slow over the ruts and humps in Gladys Tremaine’s laneway and parked in the tall grass that ran unkempt in front of the old wooden structure. There was no doorbell, so she knocked.

Gladys Tremaine let her into a small vestibule, where Rangel offered to take off her shoes. Her host looked puzzled for a moment, then said, “Don’t be silly,” and led her through a narrow hall into a front room that might have been a museum piece, from the wallpaper right down to each carefully positioned piece of bric-a-brac.

“I hadn’t quite realized that you lived so far out of town,” said Rangel. “I’m glad I was too rushed to walk. It would have been quite a hike.”

“Thank you for coming to me,” said Tremaine. “I can usually get Reg, he’s my nearest neighbour, to give me a lift, but he’s been poorly and I’d hate to bother him.”

They sat facing each other in stiffly upholstered chairs. The room was too hot and Rangel thought she heard the furnace running even though it was only late September. A silence made itself felt, the kind that, because it should have been marked by a slowly ticking clock, almost was. She took in a breath and let it out. “Mrs. Tremaine,” she said, “I’ve done some research into the law. What I’ve found is that if Jared is in fact alive, or was alive in fact after the court decision declaring him dead, you are entitled to have your life estate returned to you and as well to be compensated for all of the profits made on the land while it was out of your hands.”

The other woman’s eyes brightened with a fierce look. “Good,” she said.

Another heavy in and out breath. “Of course, that depends on our finding Jared or being able to prove his survival past the declaration of his death. And on that score I haven’t much to offer.” She studied her client’s face and added, “Yet.” Rangel shifted uncomfortably in her chair. “I have asked the police to let me see their records of the missing persons report you filed and any investigations they did at the time.” She shrugged, palms up. “I haven’t any other way of proceeding to look for him. And I must be frank and say I don’t hold out much hope.”

“Yes,” said Tremaine, patting her own lap, “well.”

“When I’ve had a look at the documents, I’ll let you know what I think.” Rangel wanted to move on. “May I suggest something?” Tremaine raised her eyebrows. “Have you thought about who you’ll leave your estate to?”

Now it was the other woman’s turn to sigh. “I have. And I’m pretty much out of options.”

“You see, if it should turn out that Jared is still alive, the life estate continues. His is the measuring life, not yours, as I’m sure you understand. So even though it’s a . . . possible life estate at the moment, if you don’t have an heir, the state will assume your property on your death.”

“What’s your suggestion?”

“It might make sense to talk to a bank or a trust company to work out, well, a trust that would manage things on Jared’s behalf if he should be found.”

Tremaine looked into the far distance for a few moments. Then she brought herself back into the room. “Yes,” she said. “That’s a wise idea. Can you . . . facilitate it?”

Rangel nodded slowly. “Yes. Yes, of course. I’ll explore it right away.” She stood up. “I’m sorry I haven’t more . . . encouraging news.”

“I’m glad about the laws you’ve found. I didn’t think finding Jared would be at all easy. We’ll see. Perhaps there’s time.” And with that she moved to the parlour door, Rangel following.

Beside the doorway there was a low, long table, and Rangel’s eye was caught by a collection of objects. She stopped and reached toward two small squeezeboxes. “These are lovely,” she said. “What are they? Accordions?” concertina2

“Concertinas,” said Tremaine. “This one belonged to Margaret. Jared’s mother. She played.” A smile softened her face. “And she sang. Jared used to love to hear his mother play and sing. Old English folk songs. Traditional music. And she’d play reels and jigs and Jared would dance. As well as he was able to.”

“And this one?” asked Rangel, pointing to the other concertina, which looked older, cruder.

“That’s Jared’s attempt to make one. He made that after his mother died. He worked at it for years. Took his mother’s apart, studied it, copied it.” She shook her head, remembering. “He had such patience, that boy.” She put her hand on the instrument. “It doesn’t work very well, but it’s precious to me. Like these.” She ran her hand along the table in front of some small, pale carved wood objects. “Jared whittled these. He had to brace his arm against something solid to stop the spasms and the ataxia. Sometimes he’d get me to tie it to the arm of a chair. And then using his wrist and hand alone he’d cut and shave until he got it as close as he could to what he wanted.” She picked up one, and Rangel could see now that it was a bird’s head. “I’d like you to have this,” Tremaine said, suddenly handing it to Rangel.

“I . . . I —” Rangel closed her hand around it and smiled at the woman. “Thank you,” she said.

Those of us who work inside our heads might want to have a look at some hand work, particularly the making of concertinas, those hand-sized instruments meant to be played by hands.

© Simon Fodden

The Future of Legal Publishing

My opinion stands that it is not always wise to try and predict the future, certainly for the longer-term, however necessary it is to seek to do so. Unpredictable risk for companies is everywhere and the impact of getting things wrong can be huge, perhaps in some cases immeasurably high. So perhaps rather than use prediction, it is preferable to identify a few key factors and examine the evidence surrounding them in order to anticipate trends in legal and professional publishing.

I believe that, without doubt, legal publishers, particularly the larger ones, face a broad range of challenges. They respond to and anticipate them in different ways, some of which may lead to their metamorphosis or extinction, inasmuch as they are in the business of professional information publishing. There is nothing surprising about this. What is now Thomson Reuters has previously ditched newspapers, energy, tourism and travel, education, department stores; RELX (Reed Elsevier) has its roots, in part, in paper manufacture. They manage portfolios and place their investment and efforts where they believe they will achieve best returns, relying largely on acquisition for growth and new products. Their present difficulty is, arguably, that although they find little opportunity for growth in their low-growth sector, even through acquisition, residual revenues and profit margins are often higher than those in the markets to which they aspire. It is therefore problematic in the short-term to replace legacy sources of income, particularly where newer ones that seek to address “the business of law” are not arriving or delivering to the extent that was hoped. However, this situation is hardly sustainable and through a process of strategic disposals and acquisitions, it seems inevitable that at some time in the foreseeable future, the three gigantic law publishers will exit. Thomson Reuters’ focus seems to be on financial and risk markets, with RELX on scientific, technical, medical and risk solutions. As for Wolters Kluwer, having become “more a software and service company”, the health market appears to be more appealing for them. I don’t doubt, though, that the evolution will not be linear and it’s more likely that their structures will to some extent be affected by larger scale merger and acquisition activity. Respected commentator, David Worlock, has much to say on these matters, making reference to “until Lexis Law is divested”, as if it were simply a matter of time and suggesting “Why not bring it on again ?” in relation to the question of a RELX-WK merger. This might assume that they can do it well, particularly as they address their own and their professional customers’ desire to balance growth, globalisation and industrialisation strategies with the imperatives of protecting customers’ best interests. They must manage their own reinvention while ensuring that their traditional characteristics that define professionalism are able to withstand the strains of industrialisation, management by process and the crude requirement for more sales revenue. There are risks in seeking to mix a service ethic with industrial and commercial ones and sometimes these are in direct conflict.

Markets and their structures are changing and, especially for the longer-standing incumbents, the impact of newer entrants and competitors is real. Momentarily forgetting legacy turnover and profits, failure to grow is not obligatory in these markets and there is evidence of profitable growth and innovation from more nimble enthusiasts. While at one level the future for legal and professional publishing is seen to be in the provision of transactional and workflow solutions, thereby driving publishers towards the role of software providers, that view does not necessarily address the question of market segmentation. Taking the UK for example, with its mix of solicitors, barristers, tax advisers, professional support lawyers and others, none of which group is enormous in numerical terms, there is no single way to address their needs. In total, in England and Wales there are around 15,000 practising barristers. A proportion of these, together with the handful of firms of solicitors, primarily in London, that make up the so-called Magic and Silver Circles, represent the core market. These, with the high-end scholarly, as distinct from curriculum-driven academic and professional training markets, remain key to sustaining the law publishing trade, as it has ever been. Of course there are many more law firms in all, with around 150,000 individual solicitors, together with accountancy firms, taxation practitioners and the totality of active registered companies that define the market. However, this says little about identifying the relevant market size as expressed in customer numbers for UK professional information providers. Realistically, the market is segmented, progressively less-willing to fall for old-style publisher pricing models and ever-evolving. Those publishers that are able flexibly to focus on high-profit sectors of these markets, while concurrently being not locked in the ways of the past, may find themselves becoming the new establishment. Indeed, where deep content is needed, the majors are probably not even geared up to acquiring it. It may be that the specialist competitors, via licensing, will be the profitable future collectors of legal content for themselves and the larger businesses. Perhaps, more simply put, those whose focus is on transactional process and documentation will serve the compliance, solicitor and PSL market while barristers and senior litigators will remain the customers of the deep content and research-focused law publishers.

The digital challenges that have existed for a long time and have not always been addressed, overcome or well-exploited, continue and to some extent require business models to be altered. The acquisition by Thomson Reuters of Practical Law indicates the understandable direction that the larger business wants to take. It shows that its future model will be less about providing deep, research-oriented content and more about providing business support to professional markets. At the same time, it takes them further and inevitably into a world in which the challenges of open access, social and business network competition and the impact of ever-changing technology more than changing law become the key drivers to the business. This is likely to make for more generic technical solutions to address markets with not dissimilar characteristics, to a greater extent than requiring an intimate empathy with and understanding of only a few. That model, of course, may also reveal that the transactional solutions approach rather than mainstream strategic planning and litigation, is one that is geared to the largest firms only and to a corporate market for compliance, where customers may have greater internal technical skills and enormous price bargaining power. Meanwhile, for those whose focus is more on the management of research content, there are superb examples of innovation, vision and optimism, one being in the forthcoming version of the Justis and JustCite services. For the future, the publishers see in research content the need to identify relationships among cross-jurisdictional sources combined with the full range of social and other media. Other traditional mainstays of the legal publishing trade, however, such as directories and access to markets via traditional bookstores, are likely to play only a small part of its future.

It is certainly interesting to speculate around who are likely to be the winners and losers based on current trends. I do not at all think that the downfall of the biggest names is imminent but I am of opinion that they will change to an extent that they may not be the legal publishers of the future. Based on reported financial and market growth, it is hardly the case that such businesses can continue to be regarded as winners. It’s possible that Bloomberg Law will rise in consequence but realistically, unless it makes one or more huge acquisitions involving the present international market leaders, it will remain a domestic operator of no global consequence or withdraw completely. Perhaps rather there will be opportunities for venture capitalists, private equity or even more lateral possibilities. Acquisitions and disposals in question may well include some of the respected and trusted brands presently held by the giants and they may flourish under different ownership. It is difficult to imagine those currently operating on the sidelines, such as business-to-business, STM and academic providers, taking a lead, despite the extent and quality of their asset bases. At the bottom end of the market, where the opportunity to make large amounts of money from high volume, low-priced books is disappearing, along with the reduction generally in print business, the commoditisation of case reporting and the provision of legislation and other primary sources, the picture looks bleak. That is not so, however, between the two. Practising lawyers are changing how they do business but the need for them has not disappeared. I anticipate that the winners and inheritors of the mantle will be right-sized innovators and core market service obsessives who are willing and able to grow in ambition and scale to replace the old guard. For those who hold, acquire and nurture the “must have”, added-value resources; for those who see service, accuracy, clarity and value as essential measures of optimal quality and whose future is about the creation, aggregation and curation of online, real-time information, guidance, tools, documentation, etc., the future is more likely to be theirs.

As to whether or not customers will be winners in consequence, that might be another question.

Federal Budget 2015–16: Measures of Interest to Employers

Federal Minister of Finance Joe Oliver tabled Economic Action Plan 2015 (Budget 2015–16) on April 21, 2015. The Canadian government’s balanced budget proposes a low-tax plan for jobs, growth and security, and projects a surplus of $1.4 billion in 2015–16. There are no individual tax rate or tax bracket changes in this budget. Highlights of the budget of interest to employers and payroll specialists include the following.

Modernizing the Canada Labour Code

Budget 2015 proposes to introduce amendments to the Canada Labour Code (CLC), which applies to federally regulated employers. These amendments would:

  • Add protections for paid and unpaid interns, including clarifying the circumstances under which employers may offer unpaid internships and ensuring interns receive occupational health and safety protections and are subject to basic safety standards
  • Provide new short-term and long-term unpaid leaves for family responsibilities and increased bereavement leave
  • Address violence and sexual harassment in federally regulated workplaces, to ensure that employees are treated fairly and protected from harm

The budget also calls for increasing the number of occupational health and safety officers from 90 to 100 at an additional cost of $4.8 million over five years.

The government also says it will modernize the Act governing benefits and services to federal employees suffering from work-related injuries and illnesses to accelerate claims and clarify what’s covered.

Proposed overhaul of sick leave

The government wants to get rid of the system whereby public sector employees can bank sick days, instead providing them access to short-term disability benefits previously unavailable.

Extending compassionate EI benefits

Effective January 1, 2016, the budget proposes to extend Employment Insurance (EI) Compassionate Care Benefits from six weeks to six months to better support Canadians caring for gravely ill and dying family members. However, the number of weeks allotted by provincial and territorial governments has not changed because of this measure. Most provincial/territorial government only allow eight weeks of unpaid leave.

TFSA annual contribution limit increasing

The Tax-Free Savings Account (TFSA) annual contribution limit will increase from $5,500 to $10,000, effective for 2015 and subsequent years. The annual TFSA contribution limit will no longer be indexed to inflation. Any unused contribution room may be carried forward for use in subsequent years.

Employment Insurance system

Commencing in 2017, the government will implement the seven-year break-even Employment Insurance premium rate-setting mechanism, which will ensure that EI premiums are no higher than needed to pay for the EI program over time. Under the proposal, any cumulative surplus recorded in the EI Operating Account will be returned to employers and employees through lower EI premium rates once the new mechanism takes effect. Based on current estimates, it is expected to result in a reduction in the EI premium rate, from $1.88 in 2016 to $1.49 in 2017. The budget shows the EI account will be in surplus in 2015–16 and that surplus will grow to $5.5 billion the following year.

Budget 2015 proposes to extend the current EI Working While on Claim pilot project to August 2016. Under this pilot, claimants can keep 50 percent of their EI benefits for every dollar they earn, up to a maximum of 90 percent of the weekly insurable earnings used to calculate their EI benefit amount.

Quarterly remittance for tax withholdings

The government proposes to decrease the required frequency of remittances for new small employers by allowing eligible employers to immediately remit on a quarterly basis. Eligible employers will be new employers with withholdings of less than $1,000 each month. Ongoing eligibility for quarterly remitting will require that the employer maintain a perfect compliance record. Employers will continue to be eligible for quarterly remitting under this measure, if their required monthly withholding amount remains under $1,000. If withholdings rise above this level, the CRA will classify an employer as a more frequent remitter in accordance with the existing remittance rules. This measure will apply to withholding obligations that arise after 2015.

Withholding for non-resident employers

Non-residents are subject to tax in Canada under the Income Tax Act (ITA) on employment income earned in Canada. Provided certain conditions are met, employment income earned in Canada by a non-resident may be exempt from Canadian tax under a tax treaty between Canada and the country of residence of the non-resident employee.

Budget 2015 proposes to provide an exception to the withholding requirements for payments by qualifying non-resident employers to qualifying non-resident employees. In the absence of a waiver issued by the Canada Revenue Agency (CRA), an employer (including a non-resident employer) is generally required to withhold and remit Canadian tax on account of the employee’s potential Canadian tax liability even if the employee is exempt from Canadian tax because of a tax treaty between Canada and the employee’s country of residence.

An employee will be a qualifying non-resident employee if the employee (i) is exempt from Canadian tax in respect of the payment because of a tax treaty between Canada and the country of residence of the employee; and (ii) is not present in Canada for 90 days or more in any 12-month period that includes the time of payment. An employer will be a qualifying non-resident employer if the employer (i) is resident in a country with which Canada has a tax treaty; (ii) does not carry on business in Canada through a permanent establishment; and (iii) is certified by the Minister of National Revenue at the time of the payment.

Special rules apply where the employer is a partnership. The qualifying non-resident employer will continue to be required to comply with the reporting requirements under the ITA with respect to the payments.

Matching education with job skills needed by employers

Starting in 2016–17, the government plans to make a one-time investment of $65 million over four years to business and industry associations to allow them to work with willing post-secondary institutions to better align curricula with the needs of employers.

Adjustment in the registered retirement income fund (RRIF)

Budget 2015 proposes to decrease the required annual minimum withdrawals so they are more in line with long-term investment returns and expected rates of inflation. These changes are proposed to be effective for 2015 and subsequent years, with re-contributions permitted for those who, in 2015, withdraw more than the proposed new minimum.

The existing RRIF factors have been in place since 1992. Under the proposed changes, a senior would be required to withdraw 5.28 percent of his or her RRIF at age 71, down from 7.38 percent today. At age 94, a senior would be required to withdraw 18.79 percent, down from 20 percent currently. At age 95 and above, the percentage that seniors are required to withdraw annually would remain capped at 20 percent. There will be no change to the minimum withdrawal factors that apply in respect of ages 70 and under, which will continue to be determined by the formula 1/(90 – age).

Manufacturers’ incentive

Manufacturers have an incentive to invest in new manufacturing and processing equipment over the next decade through an accelerated capital cost allowance (CCA) deduction. Budget 2015 proposes new capital cost allowance Class 53 to provide an accelerated CCA rate of 50 percent on a declining-balance basis for machinery and equipment acquired by a taxpayer after 2015 and before 2026 primarily for use in Canada for the manufacturing and processing of goods for sale or lease. Eligible assets are those that would currently be included in Class 29 (with a CCA rate of 50 percent on a straight-line basis).

Tax-exempt allowances

The Budget confirms a proposed change announced on December 23, 2014, to the limit on the deduction of tax-exempt allowances paid by employers to employees that use their personal vehicle for business purposes.

Corporate tax rate

The Budget also proposes to reduce the small business tax rate from 11 percent to 9 percent by 2019. This two-percentage-point reduction will be phased in as follows:

  • 10.5 percent effective January 1, 2016
  • 10 percent effective January 1, 2017
  • 9.5 percent effective January 1, 2018
  • 9 percent effective January 1, 2019

The reduction in the small business rate will be pro-rated for corporations with taxation years that do not coincide with the calendar year.

Repeated failure to report income

The Budget proposes for 2015 and subsequent taxation years to amend the penalty for repeated failure to report income. The penalty would apply only if a taxpayer fails to report at least $500 of income in the current year and any of the three preceding years. In addition, the proposal would limit the amount of the penalty to the lesser of:

  • 10 percent of the unreported income, and
  • An amount equal to 50 percent of the difference between the understatement of tax relating to the omission and the amount of any tax paid in respect of the unreported amount.

Sharing of information

The government has undertaken as part of an OECD/G-20 process to provide for the automatic exchange with other countries of tax information respecting financial accounts. This exchange of information will be reciprocal and bilateral, and will occur on the basis of a common reporting standard. Budget 2015 contains important details regarding the manner in which the government envisages implementing the information-sharing program.

The OECD common reporting standard involves rules governing the exchange of information on non-resident account holders of accounts among Canadian financial institutions and tax authorities of a number of participating countries. Financial institutions in Canada will be required to identify any such accounts held by non-residents of Canada and report certain related information to the CRA. The common reporting standard will be effective July 1, 2017, with exchange of information starting in 2018. Accounts held by Canadian residents who are also citizens of foreign countries will not be reportable. Furthermore, safeguards will be put in place to protect taxpayer confidentiality and to restrict the use of information sent to foreign tax authorities to tax purposes only. Draft legislation giving effect to this budgetary proposal will be released in the coming months.

In addition, Budget 2015 proposes to amend the ITA to permit the sharing of taxpayer information within the CRA for purposes of collecting non-tax debts owing under certain federal and provincial laws. Similar measures will be introduced to the Excise Tax Act in relation to the Goods and Services Tax/Harmonized Sales Tax (GST/HST) and also to the Excise Act, 2001 in relation to certain excise duties. The new measure will apply on royal assent to the enacting legislation.

Finally, the Budget proposes to give the Minister of Employment and Social Development Canada and the Minister of Labour the authority to collect, use and verify Business Numbers to administer programs for which they are responsible. Using the business number, an organization dealing with the federal government would only have to register once to be eligible to access a range of federal programs and services for organizations, instead of having to register separately under each federal service or program.

Digitization of Print Materials: A Solution in Search of a Problem?

Over the past few years “But can’t you digitize this [and throw away the original]?” has joined “but isn’t it available electronically?” as a justification for getting rid of print library materials.

While there are advantages to having materials in digital format, the digitization process should not be treated as an easy way of reducing a library’s physical holdings. University libraries have been carrying out interesting digitization projects for some while now, but smaller libraries may find digitizing material more challenging since they do not have the same resources to call upon.

Before starting a library digitization project, there are a number of questions that should be asked.

Does the material really need to be in digital format? What will be the benefits of having the material in digital format? Advantages of moving from print to digital format can include reducing the physical space needed by the library, allowing remote access to materials, and creating archival copy of print materials (useful if print material is in bad shape). If the digital copy is not be intended as a replacement for print, but rather as a backup copy or to give access to remote users, then no library space will be saved. The quality of the final digital product is also important; a good quality print copy is generally going to be superior to a poor digital copy.

Is the material already available in digital format or is someone else currently working on digitizing it? Since digitization involves a lot of time and effort, you probably do not want to digitize something that is already available in electronic format. For example, HeinOnline has digital copies of historical Canadian federal legislation and the Law Library Microform Consortium (LLMC) has digitized a number of Canadian federal and provincial statutes. The Alberta Heritage Digitization project has digitized a significant amount of historical Albertan legislation and made them freely available. Other resources of already digitized materials include the Internet Archive and Google Books.

Do you have the right to digitize the material or will this violate copyright? If material you want to digitize is copyrighted, one option is to ask the copyright holder for permission to digitize it. I have done that in the past where we wanted to digitize copies of print materials for internal use.

Once a decision has been made to digitize, you should think about how the digitized material will be used.

Does the digitized material need to be searchable? If users will want to search the text of the digitized material, then optical character recognition (OCR) will be required. OCR takes time and its accuracy depends on the quality of the original materials. Rose Holley, the Manager of the Australian Newspaper Digitisation Program, found that “raw OCR accuracy varied from 71% to 98.02%”. Accuracy of OCR from poor quality materials may be even lower, requiring time-consuming manual clean up. While the Australian Newspaper Digitization Program took advantage of crowdsourcing to improve the quality of the OCR text, this is not a practical solution for smaller libraries.

How will users access the digitized material? Who will be using the digitized materials? How will the library make it discoverable? For example, if you are replacing and/or supplementing library materials, links in the library catalogue will make it easier for users to find these materials. What format will the digitized material be in: PDF, text, or other? Will individually scanned pages be stored as separate files, or will they be combined into larger documents? What metadata will be used and who is going add it?

How are you going to digitize the materials? Will you carry out the digitization process in house or use an external digitization service? Can the material be destroyed by the digitization process, or do you want to keep the original material? Using an auto feed scanner means that you will have to cut the spines off books. However, choosing to keep the original materials may result in poorer quality of digitization. You should talk to other departments in your law firm (copy centre, litigation support) to see if they have carried out digitization projects; if they have, take advantage of their experience. If you have not digitized any materials before and are planning to do it in house, it is worthwhile to carry out a test run to see how long it will take and what problems there are that you have not thought of.

As with almost any endeavour, digitization projects benefit from proper planning, including a cost-benefit analysis. The more clearly you can articulate the desired results, the more successful the project is likely to be.

Google Search Favours Mobile Friendly Sites

Is your website mobile friendly? As of yesterday, Google search ranks mobile friendly sites higher in search results.

This means that if someone does a google search from a mobile device, a site that is mobile friendly will appear higher in the search results than one that is not mobile friendly and would otherwise rank the same.

Given the high and trending higher percentage of time people use phones and tablets for search compared to PC’s, it is increasingly important that web sites be mobile friendly.

You can test a URL for mobile friendliness on this google page. In case you are wondering, Slaw, my elegal blog, and the Harrison Pensa web site all pass the test.

So take the test for your web site, and if it doesn’t pass, talk to your web developer.

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. Nur, 2015 SCC 15

[1] Gun-related crime poses grave danger to Canadians. Parliament has therefore chosen to prohibit some weapons outright, while restricting the possession of others. The Criminal Code, R.S.C. 1985, c. C-46, imposes severe penalties for violations of these laws.

[2] Section 95(2)(a) imposes mandatory minimum sentences for the offence of possessing prohibited or restricted firearms when the firearm is loaded or kept with readily accessible ammunition (s. 95(1)) — three years for a first offence and five years for a second or subsequent offence.

2. Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16

[1] The state is required to act in a manner that is respectful of every person’s freedom of conscience and religion. This is a fundamental right that is protected by the Quebec Charter of human rights and freedoms, CQLR, c. C‑12 (“Quebec Charter”), and the Canadian Charter of Rights and Freedoms (“Canadian Charter”). Its corollary is that the state must remain neutral in matters involving this freedom. The interplay between freedom of conscience and religion, on the one hand, and this duty of neutrality, on the other, is sometimes a delicate one.

[2] The respondents, the City of Saguenay and its mayor, would like to continue the recitation of a prayer at the start of the municipal council’s public meetings. In their view, the issue is one of respect for their freedom of conscience and religion. The appellants, the Mouvement laïque québécois (“MLQ”) and Alain Simoneau, are asking that the respondents cease this practice, which, they submit, interferes in a discriminatory manner with Mr. Simoneau’s freedom of conscience and religion. They demand that the City and its official comply with the state’s duty of neutrality.

3. Paradis Honey Ltd. v. Canada, 2015 FCA 89

[120] The difference between private parties and public authorities matters not. For reasons never explained, Canadian courts have followed the same analytical framework for each: we examine the duty of care, standard of care, remoteness, proximity, foreseeability, causation and damages.

[121] To make this analytical framework suitable for determining the liability of public authorities, courts have tried gamely to adapt it. And then, dissatisfied with the adaptations, they have adapted the adaptations, and then have adapted them even more, to no good end.

The most-consulted French-language decision was Mouvement laïque québécois c. Saguenay (Ville), 2015 CSC 16

[1] L’État est tenu d’agir dans le respect de la liberté de conscience et de religion de chacun. C’est un droit fondamental que protègent la Charte des droits et libertés de la personne du Québec, RLRQ, c. C-12 (« Charte québécoise »), et la Charte canadienne des droits et libertés (« Charte canadienne »). Son corollaire veut que l’État demeure neutre en la matière. L’interaction entre cette liberté de conscience et de religion et ce devoir de neutralité est parfois délicate.

[2] Les intimés, la Ville de Saguenay et son maire, désirent continuer la récitation d’une prière au début des séances publiques du conseil municipal. Pour eux, il en va du respect de leur liberté de conscience et de religion. Les appelants, le Mouvement laïque québécois (« MLQ ») et Alain Simoneau, demandent plutôt qu’ils cessent cette pratique qui, selon eux, attente de façon discriminatoire à la liberté de conscience et de religion de ce dernier. Ils exigent que la Ville et son représentant respectent l’obligation de neutralité qui incombe à l’État.

* 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.

Style in Decision Writing: Guidance for Adjudicators

“In matters of grave importance, style, not sincerity, is the vital thing.”

Oscar Wilde

“Originality in the law is viewed with scepticism. It is only the arrogant fool or the truly gifted who will depart entirely from the established template and reformulate an existing idea in the belief that in doing so they will improve it. While over time incremental changes occur, the wholesale abandonment of established expression is generally considered foolhardy.”

Duncan Webb, ‘Plagiarism: A Threat to Lawyers’ Integrity?’ (2009), International Bar Association

Reasons for decisions are the windows into the decision making process. Reasons should ensure transparency in decision making, allow for accountability for decisions (through judicial review or just generally) and be accessible to the average reader. In this way, reasons for decision are an important part of access to justice.

There is no shortage of advice offered to adjudicators on decision writing at conferences and seminars. A recent article by Justice David M. Brown in the Energy Regulation Quarterly is a good summary of the advice adjudicators receive in training.

In this column I want to focus on writing style and some of the research on comprehension highlighted in Steven Pinker’s recent book, Sense of Style: The Thinking Person’s Guide to Writing in the 21st century.

We now know that the bar has been set very low in terms of writing style for judges, and by extension, for adjudicators. The Supreme Court of Canada decided in 2013 that a judge could largely copy from the parties’ submissions in his reasons: Cojocaru v. British Columbia Women’s Hospital and Health Centre, 2013 SCC 30 (CanLII). In that case, only 47 of the 368 paragraphs (13%) were in the judge’s own words. Writing for a unanimous court, The Chief Justice, noted (at paragraph 31): “Nor is lack of originality alone a flaw in judgment writing; on the contrary, it is part and parcel of the judicial process.”

The Chief Justice also quoted from an article by Professor Simon Stern:

Judges are not selected, and are only rarely valued, because of their gift for original expression. …judges usually prefer to couch their innovations in familiar forms, borrowing well-worn phrases to help the new modifications go down smoothly. The bland, repetitive, and often formulaic cadences of legal writing in general, and judicial writing in particular, can be explained in large part by a commitment to the neutral and consistent application of the law. . . . [T]he effort to demonstrate that similar cases are being treated alike often finds its rhetorical manifestation in a penchant for analyses that have a déja lu quality — usually because the words have been read before.

The SCC has indeed set a low standard for decision writing, noting that the scope for judicial creativity is “narrow, but not non-existent”: “it finds expression in the ordering of the reasons and the disposition of the arguments and issues, and in the occasional eloquent statement of the facts or restatement of the law.”

After reviewing the low standard set by our highest court, you might wonder why adjudicators should bother writing with style. Style in writing does matter, Pinker points out. It ensures that writers get their message across, “sparing readers from squandering their precious moments on earth deciphering opaque prose”. Style also earns trust. Consistency and accuracy in writing reassures readers that the writer takes equal care in conduct they cannot see as easily. And, a beneficial side effect of style in writing is the beauty it adds to the world. We all have likely experienced the satisfaction of reading a well-crafted decision.

Some might think that opaque prose is a deliberate choice, as summarized by Calvin (of Calvin and Hobbes): “I realized that the purpose of writing is to inflate weak ideas, obscure poor reasoning, and inhibit clarity.” Pinker refers to this as the “bamboozlement” theory and he is skeptical that it explains poor writing. He prefers the Hanlon’s Razor explanation: never attribute to malice that which is adequately explained by stupidity. The stupidity he is referring to is the failure of the writer to imagine what it is like for someone else not to know something that you know (“the Curse of Knowledge”).

The inability to see a topic from the perspective of someone who knows less than you is pervasive and has been studied extensively by psychologists. The common affliction of hindsight bias is a good example. This is the tendency to think, after the fact, that an outcome must have been obvious before the fact. Pinker reviews a number of studies that have shown how poor adults are in estimating other people’s knowledge and skills. One study showed that experienced cell phone users guessed that it would take a novice 13 minutes to learn to use the phone, when it took 32. These studies lead to an important conclusion for decision makers: the better you know something, the less you remember how hard it was to learn. As Pinker notes, this can lead the experienced writer to not bother to explain jargon, spell out the logic or supply necessary detail.

The common advice given to adjudicators is to “write for the losing party”. This is similar advice given to writers generally: “always remember the reader over your shoulder”. Pinker notes that this advice is not as effective as you might think. This is because just trying harder to put yourself in someone else’s position does not make you much more accurate in figuring out what that person knows. However, it is a start, as occasionally people do learn to discount their knowledge when they are shown how it biases their judgment.

Pinker highlights the insidious nature of the curse of knowledge: it conceals not only the contents of our thoughts from us “but their very form”. When you know something well, you don’t realize how abstractly you think about it. You also forget that other people, who have lived different lives, have not gone through the same history of “abstractification”. This is due, Pinker states, because of two actions of the mind: chunking and functional fixity.

Human working memory can only hold a few items at a time – psychologists believe our brain’s capacity is limited to three or four. The workaround is packaging ideas into bigger and bigger units, which have been termed “chunks”. Each chunk, no matter how much information is crammed inside it, occupies a single slot in working memory. Pinker gives the following example: of the following sequence of letters, we may only be able to retain a handful: M D P H D R S V P C E O I H O P. If, however, we group them in well-known abbreviations of MD, PhD, RSVP, CEO, and IHOP, we can remember all 16 letters (assuming that we know that IHOP stands for International House of Pancakes).

As Pinker notes, chunking is not just a parlour trick; “it’s the lifeblood of higher intelligence”. As we learn a new field, such as law, we master a large number of abstractions (or chunks) which can ease discussions with others in the profession. As Pinker writes, “an adult mind that is brimming with chunks is a powerful engine of reason”. But this “chunking” comes with a cost: an inability to effectively communicate with other minds that have not mastered the same chunks.

The amount of abstraction that a writer can get away with will depend on the expertise of the readers. However, figuring out what “chunks” have been mastered by your reader requires a gift of clairvoyance that we don’t have. Pinker also notes that we may be reluctant to use plain speech because it may indicate that we are not as sophisticated as we would like to appear. We also may worry that we are insulting the intelligence of the reader by spelling things out. Pinker notes that we’re more likely to overestimate the average reader’s familiarity with our world than to underestimate it. His tip is a good one for decision writers: assume that the reader is as intelligent and sophisticated as you are, but that she happens not to know something you know.

Expertise also makes ideas difficult to share because of functional fixity: as we become familiar with something, we think about it more in terms of the use we put it to and less in terms of what it looks like and what it is made of. This is illustrated by the famous “candle problem”. The task was to fix a candle on a wall without dripping wax, with the following items: a box of candles, a box of thumbtacks and a book of matches. The challenge arises from the functional fixedness of the boxes containing the candles and the thumbtacks. Very few people think of tacking one of the containers to the wall as a makeshift shelf to hold the candle. And the fact that you now think this was an obvious solution is also good example of hindsight bias.

Pinker says that because of these factors it is harder than you think to communicate to the average reader. This is largely because you are the last one to realize what will be unfamiliar to your readers. He suggests that the best way to escape the curse of knowledge is to get a “feedback signal” from the world of readers. In other words, show a draft to people who are similar to the intended audience and discover whether they can follow it.

That’s the approach I take in writing these columns and in writing decisions where I don’t have tribunal support. As Pinker notes, the advice sounds banal but is in fact profound:

Social psychologists have found that we are overconfident, sometimes to the point of delusion, about our ability to to infer what other people think, even the people who are closest to us. Only when we ask those people do we discover that what’s obvious to us isn’t obvious to them.

That’s why professional writers have editors. I have written elsewhere on the benefits of a good copy editor. I have also written in a previous column about literacy audits and access to justice. In my experience, very few tribunals employ professional editors. At most, decisions are reviewed by lawyers who, of course, are subject matter experts and unlikely to assist in escaping the curse of knowledge. This raises interesting questions of deliberative secrecy – how can an adjudicator share a draft with someone similar to his or her audience who, by definition, is outside of the tribunal?

Pinker does note that reviewers of your writing do not need to be a representative sample of your intended audience – often it is enough that they are simply not you. You should also be cautious about implementing all suggested changes, as each reviewer has a curse of knowledge of their own, as well as “hobbyhorses, blind spots, and axes to grind”.

Pinker has many more tips for writing, based on sound psychological principles. I will turn to some of them in a future column.

Needs and Nerves: Delegating to Part-Time Employees

I’ve had several recent conversations with senior lawyers who are reluctant to delegate work to part-time administrative staff. They don’t want to be perceived as demanding. They’re afraid of confrontation.

They are actually more open to the concept of flexible work arrangements than most people give them credit for, but they need reassurances that part-time staff are just as committed to quality work as their full-time counterparts.

Unique challenges of delegating to part-time administrative staff
With more and more of us working outside the office or part-time, there is less opportunity for face-to-face communication, which means that it takes longer to build rapport and trusting relationships.

A lot of legal work – especially litigation –requires short turnaround times in response to changes in the schedule and scope of a matter. Team members need to be available and accessible. When this isn’t an option – in a smaller firm with a shallower pool of resources, for example – the impact can be onerous

Part-time workers are a growing segment of the Canadian workforce. More people are electing to work part-time instead of full-time for a variety of reasons. And more firms are reducing full-time administrative staff to control costs.

There is no quick solution
One lawyer I spoke with believes that part-time employees are less committed to “working hard” than full-time employees. Earlier in her career, she was let down by a part-time employee who repeatedly missed deadlines, refused to accommodate the occasional request to stay late and who sulked when delicately and professionally asked to explain mistakes. It has taken years for her to consider hiring part-time staff.

Efficient technology such as project management software and electronic file management systems make it easy to track work progress. But many aspects of delegation rely on context and communication that can’t be easily managed through data inputs.

Training is another consideration; firms might hesitate to invest in developing the skills of part-time staff if the long-term benefit of doing so is unclear or undervalued.

Ideas to investigate

  1. Consider your bias towards delegating to part-time employees
    • Are your past experiences relevant to the current situation?
    • How could you validate your assumption about the employee’s commitment to getting the work done properly and on time?
    • What are the consequences if you can’t overcome your bias?
  1. Co-create a brief, but formal checklist of expectations when tasks are assigned or work begins on a new matter. If the list is objective, you’ll both have an opportunity to discuss how the work will get done within the anticipated budget and what should result from it. It’s also a good way to confirm that you’re delegating the right tasks to begin with.
  1. Find a way to incorporate predictability and consistency into your working relationship. Regular meetings, protocols, updates, etc., will build trust as you learn to work together.
  1. Value candour. Clear the air. You’ll save yourself the anxiety of worrying about hurting someone’s feelings, operating on incorrect assumptions or offending staff with your “demands”. Be direct, but be respectful. A review of client objectives offers a neutral way to triangulate the discussion and diffuse tension.

Economic and demographic trends indicate that the number of part-time workers in the legal profession will continue to grow. Try to make the most of your working relationships by building trust and keeping the lines of communication open (that goes for all your working relationships, not just those with part-time staff).

On Being Prepared

Three things have converged recently that relate to being prepared. Thinking about Slawyers, I am certain that readers of this blog are likely those that support and espouse the notion of preparedness, I decided to write about preparedness from three perspecitives.

1. The unprepared (fly by the seat of your pants and deal with the consequences as they arise)

My youngest daughter is a musician. She recently finished her first year of university and is now looking for employment. Despite her mother and father’s strong (occasionally screechy) suggestions that she begin applying for summer work in March, she put the last polishing touches on her resume yesterday. Drives me absolutely bonkers – probably because I did the EXACT same thing after my first year of university.

Trying to gain some perspective, I asked myself the question, “Does her unpreparedness truly matter?” To decide the answer I thought about Maslow’s hierarchy of needs. She moved home (welcomed with open arms) so her basic physiological and safety needs are met. She has a close circle of friends and supporters who are also sharing job tips so her belonging needs are met. She will likely find a job (maybe not the best and most fulfilling that her parents would wish for her) in the next two weeks so ego/status will be under control and solving the lack of employment problem will bring some self-actualization.

Being unprepared in this instance is a very strong motivator for my lovely daughter to find a solution to being jobless. In short – my perception of her unpreparedness is not her monkey, but mine. Sigh.

2. The over prepared (way to much time spent on preparation compared to the task’s level of importance)

I recently moved offices to a different floor in our building. This involves packing and unpacking, but that is not part of my story on being over prepared. When I think about some of the things that I have not 5S’d out of my office drawers, I really think that there is an element of over preparedness to my pack-rat-itis. I have things like gift bags, blank note cards, contact lens solution (I rarely wear contacts) a rolodex with printed business cards alphabetically filed (?just in case I can’t get my contacts off of my smart phone, tablet, AND Outlook on my desktop?), and not less than 5 different bottles of eyeglass cleaner.

Really. I am ashamed of myself. I also have various lengths of network cabling and neatly rolled up flip chart paper showing processes that have already been turned into Visio diagrams – just in case.

On writing this, I decided to schedule some time to 5S my office. Five S is a philosophy embraced by Lean of sorting, storing, shining, standardizing, and sustaining an environment for maximum productivity.

3. The prepared (the just right amount of preparation – think Goldilocks)

I wrote an open book exam yesterday. I prepared by taking a 16 week course, purchasing a recommended study guide, bought access to a practice test, and downloaded an app that cycled through test questions. It was a difficult exam. I passed. Looking back on my preparation, even though it was extensive, it was just right.

Knowing just how much preparation time that you need in advance of ‘the big moment’ is a skill that is learned. It comes from past experience, personal comfort, and the ability to gather information in the moment that you don’t have immediately in front of you. One view of prepared might be to rely on their smart phone’s built in GPS, another’s might be to have their phone and a paper map, and another’s might be to have their phone, a map with a highlighted preferred route and a guide book with alternatives. My chef daughter says, “look in the fridge before you start dinner,” my musician daughter says, “never perform without practicing,” I say, be conscious of how prepared you need to be.

Plaintiff Spends $550,000 on Legal Fees to Recover $10,000

In a recent defamation decision, the plaintiff spent nearly $550,000 on legal fees only to recover a $10,000 judgment. The plaintiff was not alone in racking up a large legal bill. The defendant spent nearly $250,000 on legal fees defending the claim.

After the conclusion of trial both sides sought their legal costs from the other side.

The plaintiff argued that it was successful in the result and therefore ought to be entitled to costs.

The defendant argued that the plaintiff should have brought its case in Small Claims Court, or under the Simplified Procedure, and should not be awarded any costs (and in fact that the defendant should have its costs as a result).

The decision provides a nice overview on the law of costs in the province of Ontario, including the principles which inform the court’s decision making, how offers to settle factor into the analysis, and how brining a lawsuit in the wrong monetary jurisdiction can have significant consequences.

The court found the case to be a battle of egos and about “turf warfare in the competitive world of diet medicine” rather than about reputation.

In the result, the court ordered each party to eat their own costs.

The case is a good lesson in how adjudicating over principle can be an expensive proposition.