Thursday Thinkpiece


Each Thursday we present a significant excerpt, usually from a recently published book or journal article. In every case the proper permissions have been obtained. If you are a publisher who would like to participate in this feature, please let us know via the site’s contact form.

Royal Succession and the Canadian Crown as a Corporation Sole: A Critique of Canada’s Succession to the Throne Act, 2013
Philippe Lagassé and James W.J. Bowden
Constitutional Forum constitutionnel Volume 23, Number 1, 2014

(Excerpt: pp. 19, 20)

I. The Canadian Crown as Corporation Sole

. . . .

Perpetuity and seamless succession, in fact, were the underlying motives behind the gradual establishment of the Sovereign as a corporation sole. Under early English feudalism, there was no need to distinguish between the monarch as a natural person and legal entity. The authorities and rights of the monarch were personal, as were the ties of fidelity and service that bound individuals to the monarch, and vice versa. As the English state and system of laws grew more complex, it became necessary to bring greater stability and continuity to the Crown. This was done by distinguishing between the monarch in a personal capacity, on the one hand, and in a political capacity, on the other.[17] Known as the doctrine of the “king’s two bodies,” the conceptual separation between the monarch’s “body politic” and “body natural” allowed the authority of the Crown and royal dignity to be preserved and protected during successions. While the monarch’s natural body could die, the body politic could not. Although the two bodies doctrine would later be used to distinguish between the property monarchs held as the Sovereign opposed to a natural person, the original, and still essential, purpose of making the Crown a corporation sole was to fuse monarchical predecessors and successors into a single, immortal legal personality.[18] As Kantorowicz demonstrated, the Crown as a corporation originally developed as a means of ensuring automatic hereditary succession upon the death of one reigning Sovereign and the accession of another, which in turn created a perpetual legal personality.[19] The continuity of peace, order, and good government depended upon the “rex qui nunquam moritur, a ‘king that never dies.’”[20]

In a Canadian context, the corporate character of the Crown serves another purpose as well: it allows the Crown of Canada, the legal person known as Her Majesty in Right of Canada, to be separate and distinct from the British Crown, the legal person known as Her Majesty in Right of the United Kingdom, while maintaining the same natural person the holder of both monarchical offices. Thus, when it is said that Canada and the United Kingdom share the same Queen, this is a reference to the monarch as a natural person, not their distinct Sovereigns as legal personalities. Canada and the United Kingdom share Queen Elizabeth II as monarch in a personal union, not a legal one; the Queen as a natural person holds the distinct offices of the Canadian and British Sovereigns, but the legal separation of those offices, and therefore of the Canadian and British Crowns, is not erased as a consequence. Insofar as the Canadian and British Crowns are distinct corporations sole, Canada and the United Kingdom are able to maintain that their Sovereigns are separate legal persons while having the same natural person as the holder of their respect monarchical offices.[21]

The significance of this point should not be understated. Because the Crown serves as the concept of the state in Canada and the Canadian state is the legal person called Her Majesty in Right of Canada,[22] stating that Canada and the United Kingdom have the same Sovereign as a legal person, or that Canada and the United Kingdom are under a common Crown, implies that the two countries are not separate and distinct sovereign states. Stated plainly, if Her Majesty in Right of Canada and Her Majesty in Right of the United Kingdom are the same legal person, then Canada and the United Kingdom are the same state. Indeed, it is for this reason that in 1981 the English Court of Appeal, in answering the question of whether Canada or the United Kingdom was bound by First Nations treaties, were careful to note that the Crowns of Canada and the United Kingdom had been multiplied after the Imperial Conference of 1926, and that “In matters of law and government the Queen of the United Kingdom is entirely independent and distinct from the Queen of Canada.”[23]

For Canada, therefore, the Sovereign as a corporation sole not only ensures the perpetuity of the state and governing authority, but also provides the legal and constitutional logic behind the Canadian state’s independence from the United Kingdom. Canada is only a de jure independent and sovereign state if the Crown of Canada is a corporation sole separate and distinct from the Crown of the United Kingdom.

_________________

17 The British Crown emerged as a corporation sole through common law rather than by act of parliament, and the Crown of Canada inherited this characteristic after it branched off from the Imperial Crown upon the passage of the Statute of Westminster, 1931 (UK), 22& 23 Geo V, c 4. Lordon thus describes them as “non-statutory” corporations sole. See Lordon, supra note 5. In contrast, the Governor General of Canada is a statutory corporation sole by virtue of the Governor General’s Act, RSC 1985, c G-9, and all the provincial legislatures have also all passed laws making their provincial Lieutenant Governors statutory corporations sole. The Governor General of Canada first became a corporation sole in 1868: “The Governor General of Canada [...] and his successors shall be a Corporation sole.” An Act Respecting the Governor General, the Civil List, and the Salaries of certain Public Functionaries, 1868 (UK), 31 Vict, c 33, s 1.

18 Ernest H Kantorowicz, The King’s Two Bodies: A Study in Mediaeval Political Theology (Princeton: Princeton University Press, 1957).

19 Ibid at 316.

20 Ibid.

21 Supra, note 9 at paras 60, 63, 65.

22 Crown Liability and Proceedings Act, RSC 1985, c
C-50, s 2.

23 R v Secretary of State for Foreign and Commonwealth AffairsEx p Indian Association of Alberta,, [1982] Q.B. 892 (C.A.) at 87 (WL), [1982] 2 WLR 641.

Solving the High Cost of the “Review” Stage of Electronic Discovery

This article provides more details on the following comment that I posted (April 10th) to Dan Pinnington’s article of April 8th, “Ontario Judge Strongly Pushes for Greater Use of Technology in Courts and Orders E-Trial”:

My Comment, excerpted:
Make the preparation work of a lawyer making production comparable to that of an accountant. The client doesn’t give the accountant 100,000+ records and say, ‘here, you make up our financial records and then do the audit.’ The litigation lawyer should be able to work the same way, by combining the searching and reviewing into one act. That is how legal research is done, with the aid of headnotes, particularly their indexing. So, show the client how to make a comparable index of the client’s own records, which will give the client as much useful information for doing business daily, as do its financial records, as well as provide continuous preparation for e-discovery and trial. Then the high cost of the “review” stage of e-discovery will disappear. The lawyer would use the client’s index of records to prepare to make production–searching with the speed of electrons, instead of reading each record for relevance and privilege, or using a TAR device (technology assisted review device, such as uses “predictive coding”) which devices are based upon a faulty concept of e-review, and are still without a history of proven reliability. Again, the successful solution requires an adequate understanding of available technology. Learn it before you love it, whether it’s an electronic trial, an atomic bomb, or the consequences of striking a match or burning your toast.

Searching an index is far faster, more precise, and therefore safer, than searching a whole database of all the texts themselves. Only a very small percentage of the words in texts are indexing words and phrases. And a lawyer’s searching an index for relevance and privilege is far safer than leaving the searching to the client. The lawyer should be enabled to do the searching by means of a good index of the client’s database of records. The client isn’t the legal expert in regard to the issues, which is the necessary expertise that determines the adequacy of the searching. But the client is an expert as to the nature and purpose of its business, which determines the adequacy of the indexing. That which is best done, is that which is expertly done.[1]

The concept upon which TAR devices are based is faulty, therefore using TAR is risky, because:

  1. it requires “reading” the whole of each record to determine its relevance, and privileged status;
  2. it doesn’t use the faster and more precise method of searching only indexing words and phrases, which is all that an index is made up of—only very small percentages of the words in texts, made up of sentences and paragraphs, are indexing terms;
  3. it is based on the faulty assumption that, because of the speed of electronic searching, indexing is no longer necessary; in fact, electronic searching of a good index is the fastest, most precise, and therefore the safest type of searching; that is what continues to justify the adding of headnotes and the indexing they start with, to judgements for publishing them;
  4. TAR devices are expensive, meaning big and high reward cases are needed to justify their cost;[2]
  5. counsel needs a good “clawback agreement,” covering inter alia, mistakes by TAR leading to the inadvertent production of privileged records. The “clawback agreement” enables arguing retrieval without adverse consequences, except for what’s left in the mind of one’s opponent who has read the records. But poor use of TAR might be equated to a waiver of privilege, as could inadvertent disclosure caused by poor records management. There should be a Canadian equivalent of Rule 502(b) of the U.S. Restyled Federal Rules of Evidence, (effective from Dec. 1, 2011), which provides for such agreements. It states:

    Rule 502. Attorney-Client Privilege and Work Product; Limitations on WaiverThe following provisions apply, in the circumstances set out, to disclosure of a communication or information covered by the attorney-client privilege or work-product protection.… .
    (b) Inadvertent Disclosure. When made in a federal proceeding or to a federal office or agency, the disclosure does not operate as a waiver in a federal or state proceeding if:
    (1) the disclosure is inadvertent;
    (2) the holder of the privilege or protection took reasonable steps to prevent disclosure; and
    (3) the holder promptly took reasonable steps to rectify the error, including (if applicable) following Federal Rule of Civil Procedure 26(b)(5)(B).

  6.  TAR is sold to facilitate “back-end” searching by indexing; but in fact “front-end” indexing is far more accurate and economical. Indexing records when they are created or received is “front-end” indexing, which makes searching them for relevance and privilege later, much more efficient than indexing only when the searching is done at the “back-end” by way of the searching done for discovery purposes. Indexing is not just a mechanical process, but rather, requires thinking about the meaning and impact of what is being indexed, and therefore is best done when texts are made and received.
  7. records are written to convey information and not to facilitate indexing, sorting, or classification; therefore they may not contain any of the necessary terms for finding them by way of searching for standard indexing terms for their subject matter.
  8. And good indexes contain those very helpful “see” and “see also” references that greatly increase the probability of finding all that is relevant. Texts don’t serve that purpose.

These last two reasons are especially true of older texts, written with the verbiage and assigned the indexing of an earlier time; e.g., things that are now, “cool” and “sexy,” were not so long ago, “neat” and “glamorous,” and if judicially quoted, should be thus represented in well indexed headnotes. So a searcher or indexer may have to translate his/her currently common language in order to adequately search for or index older texts and improperly motivated and misused language.[3]

But in spite of TAR’s serious shortcomings, compelled by the high cost of “review,” U.S. judges are now approving the use of TAR devices with which to allege adequate searching and production, even though such devices do not yet have a reputation for, let alone a history of, reliability.[4] Such “rush to judgment” bespeaks a greater concern for limiting the cost of legal proceedings than for the consequential limiting of justice.

Searching the whole of a text requires TAR devices or human readers, to read sentences, paragraphs, and punctuation, among which, indexing terms are but a very small minority of the words and phrases. And all of that textual verbiage can be misleading as to what the subject matter is, especially so if the writing quality is poor. Indexing terms are written for purposes of searching and finding, therefore they convey only their concepts, issues, and related facts, and not literary devices such as, grammatical construction, emphasis, contrast, examples, analogies, drama, and the competence, experience, and integrity of the writer. Therefore, almost all of the words in records written in sentences and paragraphs, get in the way of searching for relevance and privilege, and anything else.

The Sedona text, The Sedona Canada Principles—Addressing Electronic Discovery (January 2008), approves of searching by “automated methods,” stating (p. 4):

Counterbalancing the dispersed nature of electronically stored information is the fact that some forms and media can be searched quickly and fairly accurately by automated methods. For these types of electronically stored information, lawyers may be able to search through far more documents than they could hope to review manually.

But it is very doubtful that TAR was known of by anybody as early as 2008.[5]

TAR and the proportionality doctrine can be mutually interdependent for reducing the time and cost of e-discovery proceedings.[6] But indexed databases are a better strategy, as is shown by all of the online services for legal research.

However, for sufficiently large databases, TAR devices could be used more safely for indexing at the front-end, when texts are created and received, or being prepared for publication, as are the indexing strings on the top of headnotes written for decisions from the courts. When clients start to build an index of previously created or received documents, TAR might be used, with frequent checking for accuracy. When the indexing is caught up, thereafter the documents should be indexed as they are created or received. Then TAR shouldn’t be needed ever again.

Instructing clients on the use of indexing for database creation, use, and control, is part of the work of the “records management lawyer,” as is the work of electronic discovery specialists, which the bigger law firms are now appointing.[7] As to other aspects of the work of such specialized lawyers I’ll save that for another article, because “records management law” will have to be a major field of the practice of law.[8]



[1] Therefore for example, never let the publisher write the index for the books that you write.

[2] See: Christine Taylor, (technology industry consultant) “A call to vendors to make e-discovery affordable for ‘The Other 85 Percent’”; online: http://www.aceds.org/a-call-to-vendors-to-make-ediscovery-affordable/. It states in part: “The majority of e-discovery software platforms are made for big-budget cases. They serve millions of files, multiple review teams, hundreds of custodians and ESI collection across acres of disk and tape storage – and they get the lion’s share of media attention. A few years ago, these small firms performed e-discovery manually. But the e-discovery landscape is changing fast: rules are tightening and searchable data is growing. Modern e-discovery is fraught with the risks of irrelevant data, poor custodial practices, evidence spoliation, bloated processing costs, and expensive review. The 85% of mainstream practitioners have as much responsibility to avoid these mistakes as the 15%. But the lack of affordable ediscovery tools leaves small law firms scrambling for less-than-attractive options… .”

[3] For example, headnotes and indexing may require the untruthful use of the words such as “truth” and “truthful.” The Truth in Sentencing Act, S.C. 2009, c. 29 (operative from Feb. 22, 2010), purported to correct the “untruthful” sentencing practice of awarding 2 days reduction in the sentence imposed for each day spent in pre-sentencing custody (PSC), which was awarded in compensation for terrible jail conditions suffered during PSC, and lost eligibility for release on parole. But said the then Attorney General of Canada, Rob Nicholson, on Second Reading of the Act’s Bill C-25, on April 20, 2009, the real cause of jail overcrowding and related conditions, was the refusal of accused persons to apply for bail so as to obtain such “excessive” “2 for 1 credit.” The Act restricted such credit to 1:1, and to a maximum of 1.5 days for each day in PSC, “if the circumstances justify it” (Criminal Code s. 719(3),(3.1)). But in fact, no defence counsel ever had a client who said, “I didn’t do it, but, I don’t want you to apply for bail for me, because I want to get that “2 for 1 credit” if sentenced for what I didn’t do, regardless jail conditions, and the fact that I didn’t do what the police, the Crown, and the charges laid say I did, and even though you have told me that it is much more difficult to prepare a defence if I’m in jail.” See: Ken Chasse, “Untruth In Sentencing Credit for Pre-Sentence Custody” (2010), 15 Canadian Criminal Law Review 75. However, in R. v. Summers 2014 SCC 26 (April 11, 2014), the Court corrected such untruthful use of “untruth” in legislation by approving the use of such enhanced credit because of lost opportunity for early release and parole due to time spent in PSC not being taken into account. And the language of a “just sentence” used to include whipping with the “cat-o’-nine tails,” administered not less than ten days before the expiration of the related sentence of imprisonment; but females were not to be whipped (s. 668 of the 1970 Criminal Code; but repealed, S.C. 1972, c. 13, s. 59, thus surely saved from a successful Canadian Charter of Rights and Freedoms s. 15 “sexual equality” attack).

[4] See: Ralph C. Losey, “Predictive Coding and the Proportionality Doctrine: A Marriage Made in Big Data” (2013-14), 26:1 Regent University Law Review 6 at 25-30. And see also: (1) C.L. Ostberg and Matthew E. Wetstein, Attitudinal Decision Making in the Supreme Court of Canada (Vancouver, Toronto: UBC Press, 2007); and, (2) Janice Gross Stein, The Cult of Efficiency (Toronto: House of Anansi Press Limited, 2001). It examines the operation in government departments and agencies, of the goal of efficiency as a end in itself rather than as a means of obtaining quality in the production of goods and services.

[5] Ralph Losey, ibid., at 25, states that predictive coding (a variety of TAR) was slow to be used by U.S. lawyers until the decision of Magistrate Judge Andrew J. Peck on Feb. 24, 2012, in, Da Silva Moore v. Publicis Groupe 287 F.R.D. 182 (S.D.N.Y. 2012), approving the use of predictive coding, listing justifications. That decision was affirmed by a district court judge in, DaSilva Moore, 2012 WL 1446534 (S.D.N.Y.). Of similar effect was the decision of Judge Shira A. Scheindlin, whom Losey describes (ibid. p. 28) as, “the most influential judge in the e-discovery area as the author of the Zubulake opinions, a group of influential e-discovery cases” (in 2003-04), in Nat’l Day Laborer Org. Network v. U.S. Immigration & Customs Enforcement Agency, 877 F. Supp. 2d 87, 109-10, (S.D.N.Y. 2012).

[6] This is a main them of the Losey article, supra note 4. It provides a detailed explanation as to how predictive coding works, and a detailed discussion as to its relationship to proportionality. However, this statement I think is premature, certainly for legal proceedings in Canada (ibid. at 8): “When used together, proportionality and predictive coding provide a viable, long-term solution to the problems and opportunities of the legal search of Big Data.”

[7] See for example this announcement: “BLG hires Canada’s leading electronic discovery lawyer to lead e-discovery for the Firm. Toronto (August 6, 2013) — Borden Ladner Gervais LLP (BLG) is pleased to announce that renowned electronic discovery lawyer, Martin Felsky, will be joining BLG as National E-Discovery Counsel, effective August 12, 2013, to lead the Firm’s e-discovery and litigation support services. … .”

[8] See for example this article: Ken Chasse, “Why a Legal Opinion is Necessary for Electronic Records Management Systems” (2012), 9 Digital Evidence and Electronic Signature Law Review 17, a U.K. “open source” journal, i.e., providing free downloading of articles (click “Archives” to access the contents of volume 9).

Upcoming Law Student Week

This year, as we have done for a few years in the past, Slaw will each day in the coming week host a number of student essays written for Professor Adam Dodek’s first year course in Legal Ethics at the University of Ottawa Faculty of Common Law. As Professor Dodek has said here before:

I have found that our students have great perspectives on these issues because they were so recently members of that ridiculous term that only lawyers use: “lay people”. While law school is certainly a socialization process for the legal profession, law students have not been fully socialized. Many remain (and hopefully will remain) strongly idealistic. They remember their previous professions or occupations or status as simply ordinary non-legal folk and they are less willing to accept the “that’s the way it is” explanation for ethical rules in our profession. Students challenge us in the academy to be better and they also challenge us in the legal profession to do better.

I encourage you to chime in, and in particular to take the trouble to comment on the students’ work. Constructive criticism is important to a lawyer’s development, and thoughtful comments from Slaw’s wide and wise readership will no doubt help to encourage these and other students to pursue the difficult ethical matters they raise.

You’ll have no trouble identifying the papers I’m talking about because they’ll be headed by the banner you see here.

Addendum: as tomorrow is Good Friday, a holiday, there will likely be no or few posts on Slaw. We’ll resume regular publication on Sunday, with our case summaries.

Teaching ODR… Whose Job Is It?


A few months ago, a subscriber to John Gregory’s listserv (which every IT law enthusiast should subscribe to) sent a message regarding how the impact of IT on the legal profession was being taught (or rather wasn’t being taught) in Universities across the country.

Of course, that very question has preoccupied lawyers and legal scholars alike for two decades with regard to IT law, i.e. whether it should be treated as a subject in and of itself (in which case it usually isn’t a mandatory class, meaning that students can go through law school without hearing the word “Internet” in a legal context), or if the digital medium should simply be addressed in basic textbooks and general courses and classes.

Without picking a side in the “Law of the horse” debate that opposed Justice Frank H. Easterbrook and Lawrence Lessig, it seems that the later has won out for what seem to be mostly pragmatic reasons. The legal community still often treats IT law like a red-headed stepchild and, therefore, doesn’t let it permeate through the carefully constructed walls of “classic” legal spheres (contracts, liability, criminal law, constitutional law, etc.). It’s actually very disheartening to see that treaties on liability won’t discuss online liability while ecommerce is often left out of contract teachings. One could, even today, spend weeks in a law library and not read one sentence on the impact of technology on the law, unless they stumble upon the IT law section. Therefore, it seems that those of us who have an interest in IT law must treat it like a topic in and of itself, even if we don’t believe that should be the case.

This statement may not reflect what is going on elsewhere in Canada, but, in Quebec, it seems difficult to dispute. For example, even though the Act to Establish a Legal Framework for Information Technology has been around for over a decade now, it’s astounding how many lawyers are still simply unaware of its existence. Although, again, we don’t want to generalise and claim that this is a country wide problem, the fact that Ontario’s Electronic Commerce Act has only been quoted three times by the courts in that province leads one to think that the situation is not restricted to the borders of La belle province.

Which brings us back to our initial premise. Can this lack of enthusiasm for IT as a legal object, but also as a tool within the legal system, be caused by how it is being taught? The argument could be made that this is the case and that some law professors are simply out of touch since they refuse to adapt to the times, but the counterargument could be that they need not address particular technologies, but simply legal principles. Furthermore, it’s easy to cast blame on law faculties, but, truth be told, law students that are used to taking notes on their laptops, recording their classes on their iPhones and even taking certain exams online are often subject to a rude awakening the day after they pass the Bar. Courtrooms across the country are still (for the most part) ill equipped when it comes to technology and, although this is slowly changing, the institutionalisation of the technological trial is still many years away. Since this is the case, can law professors who ignore technology in their teachings really be criticised for transmitting legal knowledge that, although somewhat outdated from a societal standpoint, still reflects current legal “standards”?

The same observations can be made as it regards online dispute resolution (ODR). Although, as discussed in our previous posts, many private entities and public bodies have made great strides in the field, ODR remains on the outskirts of accepted dispute resolution mechanisms and, therefore, accepted teachings.

This invites the question: Should Universities teach the Law how it’s been practiced over the years (and, in most cases, is still being practiced), or should they act as agents of change and teach it as it most likely will evolve in the next few decades? This debate, although it focuses on a relatively new topic, isn’t totally original. During the renaissance, European universities were faced with a similar dilemma since they taught Roman law while it wasn’t the law of the land. They obviously eventually chose to follow the tides… Here the shift isn’t really as strong. We’re not advocating for a new legal system, simply new legal objects and tools.

The astute reader will have guessed by now that we err on the side of change. Law faculties shouldn’t simply be professional schools, they should help the legal profession move forwards by forcing it to adapt to the society in which it is evolving. Law students should learn to master technological tools such as ODR platforms and efiling, otherwise, they will be ill-equipped when the change come. And it will come. Cash-strapped departments of justice around the world are making sure of it. Therefore, if lawyers don’t learn to adapt to the current technological shift, legal services will become as irrelevant as the horseshoe industry after the invention of the automobile. We wouldn’t – to steal a line from Richard Susskind – herald “the end of lawyers” just yet, but between high legal costs and inefficient practices, individuals are less and less inclined to use our services.

It is for these reasons that the Cyberjustice Laboratory has put together a Summer school program on cyberjustice, i.e. on “the integration of information and communication technologies into judicial or extrajudicial dispute resolution processes”.

The Cyberjustice Laboratory Summer School will be held from June 8th to the 14th of this year at the Université de Montréal. It is a unique event which will introduce law students, as well as professionals within the legal community (lawyers, judges, court administrators, etc.) to different IT related themes such as the impact of new technologies (e-discovery and videoconference) on traditional justice mechanisms and ADR; the role already played by technology in Canadian courtrooms and around the world; as well as a look at what the future holds.

Time will tell if this effort will prove fruitful, but we do see it as a step in the right direction…

For more information on the program, please follow this link: http://laboratoiredecyberjustice.org/en/SummerSchool.

Protection De La Vie Privée Au Canada: Finalement, Des Dents Plus Longues!

À Québec aujourd’hui et demain, au Château Laurier, a lieu le 22e Congrès annuel des conseillers en accès à l’information et en protection de la vie privée (programme). Me Chantal Bernier, Commissaire par intérim à la vie privée du Canada, a offert une excellente allocution d’ouverture ce matin. À retenir: le Commissaire à la protection de la vie privée (CPVP) du Canada aura bientôt des dents pas mal plus longues.

Me Bernier, présentement commissaire par intérim, offre une vision claire et efficace pour la mise en oeuvre du mandat du CPVP: une empreinte délibérée, large et profonde.

L’empreinte délibérée, c’est la poursuite de trois objectifs complémentaires:

  • Influencer le développement des cadres normatifs;
  • Rehausser la conformité; et
  • Sensibiliser le public.

Me Bernier partage avec les participants une préoccupation majeure du CPVP: l’asymétrie croissante entre le pouvoir des usagers, d’une part, et les détenteurs d’informations privées, d’autre part. L’usager est de plus en plus démuni face aux géants de l’Internet. Devant ce phénomène, il est toujours avisé pour un gouvernement d’étoffer les pouvoirs d’un régulateur (pour ne pas dire d’un chien de garde du public) pour nous protéger.

C’est dans un tel contexte que finalement le CPVP peut espérer recevoir prochainement les pouvoirs qu’il réclame (légitimement à mon avis): le Projet de loi S-4, Loi modifiant la Loi sur la protection des renseignements personnels et les documents électroniques et une autre loi en conséquence. Ce projet de loi inclut des changements significatifs en donnant des pouvoirs additionnels au CPVP, notamment:

  • le CPVP aura 1 an pour déposer des poursuites judiciaires au lieu de 45 jours, ce qui correspond mieux à ses délais de négociation; et
  • le non-signalement de perte ou vol de renseignements personnels peut mener à des amendes très lourdes et par personne dont les renseignements personnels ont été divulgués ou volés.

Concernant la conformité, l’arme par excellence du CPVP est le “pouvoir de nommer”. En guise d’exemple, Me Bernier rappelle que suite à une plainte d’un membre du public concernant l’utilisation par Google des recherches historiques incluant des données confidentielles relatives à son état de santé, le CPVP a publiquement dénoncé cette pratique et Google a accepté de coopérer pour rectifier la situation.

Finalement, concernant la sensibilisation du public aux questions de protection de vie privée et renseignements personnels, les organisateurs du Congrès ont profité de la présence de Me Bernier pour dévoiler de nouveaux outils de sensibilisation en milieu scolaire. Ces outils sont déjà utilisables par les enseignants pour les enfants en 6e et 7e année et disponibles sur le site de l’AAPI.

L’empreinte large consiste à englober la diversité des défis en définissant largement le champ d’action et d’influence du CPVP, incluant les 4 secteurs prioritaires suivants:

  • la sécurité publique;
  • les TI;
  • la gestion de l’identité; et
  • la génétique.

…Le tout dans un contexte de mondialisation: considérant que les renseignements personnels franchissent régulièrement les frontières étatiques, il devient impératif que les régimes de protection de la vie privée, eux aussi, soient transfrontaliers.

L’empreinte profonde, c’est la volonté d’avoir un impact concret améliorant la protection des renseignements personnels et de la vie privée de tous et chacun de nous. À cet égard, étant dans l’auditoire, j’ai pu personnellement constater l’engagement et la volonté de Me Bernier d’assurer la protection des renseignements personnels dans le cadre de la présente transformation socio-économique. Me Bernier est aussi manifestement très engagée pour que le mandat du CPVP soit réalisé avec sagesse, efficacité et diligence. L’accroissement des pouvoirs du Commissaire à la protection de la vie privée du Canada est donc une excellente nouvelle – souhaitons que le Parlement et le gouvernement traitent le projet de loi S-4 avec célérité pour concrétiser le tout!

Calling All Innovative Lawyers, Law Firms and Other Legal Service Providers!

Have you developed a new and better way to serve your clients, a breakthrough way to find new business, or a truly innovative way to value and sell your services? If so, you deserve recognition from your legal industry peers, colleagues and clients. Presented by the College of Law Practice Management, the InnovAction Awards recognize lawyers, law firms, and other legal service providers engaged in extraordinary, game-changing, innovative activities. Apply today to share your breakthrough and to earn the recognition you deserve. Applications and more information are available at www.innovactionaward.com

Past winners are listed here.

10 Tips for Safe Pro Bono

Access to justice is an ongoing problem across Canada and the call is out for lawyers to contribute to the solution.

Late last fall, the Canadian Bar Association’s Task Force on Access to Justice issued a final report, Envisioning Equal Justice. The Task Force set targets to bridge the growing gap between those who can afford legal services and those who are eligible for publically funded legal services (i.e. legal aid). One of those targets is that by 2020, all lawyers will volunteer legal services at some point in their career.

Around the same time, the Action Committee on Access to Justice in Civil and Family Matters issued a report calling on lawyers to support access to justice initiatives. The Action Committee proposed that lawyers continue delivering pro bono and “low bono” (low-cost) legal services.

Whether you’re new to pro bono or you’ve provided low and no cost legal services throughout your career, you need to ensure you manage risk in your pro bono files. You have the same professional obligations to a pro bono client as you do to one who is paying your fees. And your pro bono client will likely have the same expectations of you as if you were sending out bills.

To manage your risk on a pro bono file, remember always to:

  1. Make sure you are competent. Your client deserves competent legal services. If you can’t provide that, you should decline to act.
  2. Get yourself up to speed. If you have limited experience in the relevant area of law, sign up for relevant continuing professional development programs. Review the relevant legislation and any texts on the subject. Talk to your colleagues who do practice in that area.
  3. Check for conflicts. While some law societies have rules in place that support giving summary advice or information without extensive conflict checks, those rules don’t likely apply to pro bono representation of a client. Make sure you can act for the client without putting yourself into a conflict.
  4. Open a file. This may seem obvious, but the point is, treat your pro bono files like every other file. Follow the same internal procedures.
  5. Use a retainer letter. Confirm the scope of the work you will do. Confirm your expectations of the client and set out what the client can expect from you. Managing expectations is essential to the success of the pro bono relationship.
  6. Communicate. Clear and effective communication is essential with every client. Don’t take shortcuts in this area.
  7. Use checklists. Checklists are always a good idea, but particularly so if you may be stepping into a practice area in which you’re not experienced.
  8. Diarize and follow-up. Calendar limitation dates, deadlines and bring forward dates as you would for any other file.
  9. Keep time records. You’re not sending out bills and you’re not getting paid, but you still should keep time records. This will assist you in keeping the right balance between your obligations on pro bono and fee-paying matters.
  10. Report on closing. Like a retainer letter, a closing report is always a good idea. It confirms what you have and have not done for a client. A closing letter can be a particularly useful communication tool in the absence of an itemized statement of account.

In other words, treat your pro bono files with the same care as you would your paid files. Your clients deserve no less.

(Republished with permission from Canadian Lawyers Insurance Association’s Loss Prevention Bulletin, Issue 59, Winter 2014).

Spam Now So You Can Spam Later

CASL - the new Canadian anti-spam act - comes into force July 1. It contains extensive, complex provisions that apply to the sending of any email that has a hint of a commercial purpose (a “CEM”). In the short term it may increase the amount of email we get. We have all received emails from mail lists we are on asking us to confirm our consent. But there is another reason we may get more. The reason goes like this:

CASL requires express or implied consent from the recipient before a CEM can be sent.

The act contains a transitional provision that gives up to 3 years to get express consent. (The section is below.) To take advantage of that, there must be a current or prior business or non-business relationship with the recipient AND that relationship must include communication of CEM.

Couple that with the fact that after July 1 you can’t send an email to request consent (unless there is implied consent).

So to pull as many email addresses as possible into the transition provision, maximize express consents, and give the longest possible time to obtain them, the tactic is …?

Before July 1, pull together every email address you can get from every person that you can fit into the business or non-business relationship category, and send CEM to them.

The transition section:

66. A person’s consent to receiving commercial electronic messages from another person is implied until the person gives notification that they no longer consent to receiving such messages from that other person or until three years after the day on which section 6 comes into force, whichever is earlier, if, when that section comes into force,

(a) those persons have an existing business relationship or an existing non-business relationship, as defined in subsection 10(10) or (13), respectively, without regard to the period mentioned in that subsection; and

(b) the relationship includes the communication between them of commercial electronic messages.

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. Bank of Montreal v Faibish 2014 ONSC 2178

    [2] Let me express my profound frustration as a judge who has tried to encourage both counsel and fellow judges to make greater use of modern information technologies in our Court. Those who make up the public court system – be they the judges adjudicating the cases or the counsel pleading them – provide a service to members of the public who face legal problems. While that service possesses some distinctive attributes – constitutional status, part of the foundation of a democratic system of government, etc. – it still remains a service. As a service it must be alive to the way in which the community it serves handles and communicates information.

    [3] Our community has undergone radical changes in the way it handles and communicates information. Take music, as an example. As a teenager I treasured my collection of 45 rpms; today, my grandchildren would not know what they were looking at if shown one of the 45 snap-in inserts. A decade later 8-Tracks and cassettes were the rage; they have gone the way of the Dodo bird. Then CDs began their dominance, but are now rapidly fading under the onslaught of MP3s and other digital storage mechanisms.

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

    [5] Our Court must choose: are we a Court of the Past or a Court of the Future? I vote for a Court of the Future, and therefore I will not accept counsel’s suggestion that the six-week trial for this complex commercial litigation on the Toronto Region Commercial List proceed using both paper and digital information. I know there are judges available who are chomping at the bit to conduct more e-trials. Paper must vanish from this Court and, frankly, the judiciary cannot let the legal profession or our court service provider hold us back. Accordingly, I order that the six-week trial of the Loretta and Brome Actions be conducted as electronic trials. More than enough time exists before the October 6 start date to organize the trial materials electronically. I order counsel to provide me with a formal e-trial plan at the June 26, 2014 case conference.

  2. R. v. Summers 2014 SCC 26

    [1] When an accused person is not granted bail, and must be remanded in jail awaiting trial, the Criminal Code, R.S.C. 1985, c. C-46, allows time served to be credited towards a resulting sentence of imprisonment. A day in jail should count as a day in jail.

    [2] However, crediting a single day for every day spent in a remand centre is often insufficient to account for the full impact of that detention, both quantitatively and qualitatively. Time in a remand centre does not count for the purposes of eligibility for parole, earned remission or statutory release, and this can result in a longer term of actual incarceration for offenders who were denied bail. Moreover, conditions in remand centres tend to be particularly harsh; they are often overcrowded and dangerous, and do not provide rehabilitative programs.

    [3] As a result, for many years courts frequently granted “enhanced” credit: 2 days for each day spent in pre-sentence custody. This practice was endorsed by this Court in R. v. Wust, 2000 SCC 18 (CanLII), 2000 SCC 18, [2000] 1 S.C.R. 455. When conditions were exceptionally harsh, judges granted credit at a rate of 3 to 1 or more.

    [4] The Truth in Sentencing Act, S.C. 2009, c. 29 (TISA), passed in 2009, amended the Criminal Code to cap pre-sentence credit at a maximum of 1.5 days for every day in custody. The purpose was to remove any incentive for an accused to drag out time in remand custody, and to provide transparency so that the public would know what the fit sentence was, how much credit had been given, and why.

    [5] In this case, the Court is called upon to interpret these amendments. There is no dispute that Parliament imposed a cap on enhanced credit at a rate of 1.5 to 1. However, there are conflicting lower court decisions on when “enhanced” credit at a rate higher than 1 to 1 is available.

  3. Livent Inc v Deloitte & Touche LLP, 2014 ONSC 2176

    [1] In 1968, Mel Brooks wrote and directed the sometimes outrageous film, The Producers. In this film, which Brooks reprised in a 2001 Broadway musical of the same name, the protagonist, Max Bialystock, created a scheme through which he was able to convince a coterie of unsuspecting individuals to invest in his deliberately ill-fated Broadway ventures. He did so on the strength of his self-styled reputation as the “King of Broadway”. He enlisted the support of his star-struck accountant, the nebbish Leo Blum, whose function was to, among other things, doctor the books of account of the productions. Regrettably for Bialystock and Blum, the play which they first produced—and which they hoped would sputter out on or shortly after opening night—became a resounding success. Their scheme failed miserably, resulting in their prosecution, conviction for fraud and ultimate incarceration.

    [2] In 1989, Garth Drabinsky and his long-time trusted colleague and soon-to-be co-conspirator and fellow inmate, Myron Gottlieb, left Cineplex Odeon Corporation after mounting an unsuccessful takeover bid. Their stated intention was to create a new vertically-integrated venture, the Live Entertainment Corporation of Canada (“LECC”), with the live entertainment assets of Cineplex that they obtained in their much-heralded, though unceremonious, leave-taking. I am not persuaded on the evidence adduced during the 68-day trial before me—the latest installment of this seemingly endless saga[1]—that Messrs. Drabinsky and Gottlieb set out to defraud the world, by which term I mean to include those who invested through equity or debt in their enterprises. In retrospect, however, it would seem that the consequences of their actions were almost preordained. Put otherwise, much like the intended actions of Messrs. Bialystock and Blum, Drabinsky and Gottlieb ended up separating countless individuals and corporations, of varying degrees of sophistication, from significant sums, and later found themselves being charged, convicted of fraud and ultimately incarcerated.[2]

The most-consulted French-language decision was Magasins Best Buy ltée c. Québec (Procureur général) 2014 QCCS 1427

[1] Ce dossier s’inscrit dans la recherche incessante d’un juste équilibre entre la sauvegarde et la mise en valeur de la langue française comme langue de la majorité au Québec et la liberté d’usage au Québec des autres langues, dont la langue usuelle de la majorité au Canada et en Amérique du Nord.

[2] C’est ce besoin d’asseoir la capacité du français de résister à la pression continentale de l’anglais qui a favorisé l’élaboration des premières lois linguistiques au Québec et qui a présidé à la gestation de la politique linguistique du Québec qui culminera dans l’adoption en 1977 de la Loi 101, la Charte de la langue française, qui est au cœur du présent dossier.

* 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.

One Simple Ingredient for a Happier Workplace


Sandra asked the team of legal support staff she manages what would contribute to their motivation at work. They all told her “appreciation – being thanked when we do a good job.”

Mark , a young associate, is unhappy at his firm. One of the things bothering him about the culture is the lack of appreciation for people’s efforts.

Chelsea and her close colleagues laugh at themselves for being foolish: after all their years of practice they still hanker after an appreciative word from their partners for taking on some of the essential but non-billable work critical to the firm’s business. The word of thanks never comes.

Over the past few weeks numerous lawyers from law firms around the country have shared the same thought about appreciation with me – it goes something like this:

 I don’t work for the money. Yes, money is essential, but the real satisfaction comes from helping people. And what I long for are a few words of appreciation when I go the extra mile for someone.

In law firms around the country it seems that one of the hardest things to come by is a kind word from someone for a job well done.

Legal work is often tough work. Clients can be demanding and unappreciative. But that doesn’t mean we need to be that way. In fact it calls for all of us who work in law to make an effort to be more appreciative than the norm. Right now, given what I hear from lawyers in my coaching practice, I would give many law firms across the country a failing grade in Appreciation 101. If your firm has a culture of appreciation I would love to hear about it, and celebrate it. Please write and let me know.

When we appreciate people it has a significant impact. It makes people feel good about themselves, about you, and about their work. It takes almost no time. It doesn’t cost anything. And its impact is big.

Building a Culture of Appreciation at Your Firm

It starts with you. Make a commitment to extend your thanks and appreciation at least once a day as a start. Here are some opportunities for delivering some appreciation:

  • When office services takes care of that courier delivery for you swiftly and with a smile.
  • When your assistant takes a moment to bring you that helpful reminder.
  • When your colleague takes on a non-billable task for the practice group such as writing an article.

As you can see from the above you don’t have to wait for a “big accomplishment” to give thanks. Look instead for the simple opportunities around you every day.

Do you disagree? Think acknowledging such small things is unnecessary or even wrong? Let me then turn to the four most common misconceptions about appreciation.

Common Misconceptions

  1. Appreciation needs to be saved for the really big deal. “When she has successfully completed negotiations on that 500 million dollar project I will congratulate her.“
     
    Wrong. Appreciation is best used every day. Get in the habit of noticing the small things, and when someone really does something extraordinary simply increase your expression of appreciation appropriately.
  2.  “He’s paid to handle that, I expect him to do a good job. If he didn’t he wouldn’t have a job.”
     
    Incorrect. If law firms invested just one percent of the time they currently spend on figuring out associate bonuses on daily expressions of appreciation the work culture would improve significantly.
  3. “If I give someone appreciation and thanks for small things they are going to get an inflated sense of their own worth.”
     
    Not so. In law firms we don’t have a problem of people thinking too highly of themselves. For every arrogant lawyer I will show you twenty people in the firm who are too hard on themselves and who don’t see their own strengths and abilities.
  4. To appreciate someone you need to make a public declaration, such as an email sent to a large group of people.
     
    Not usually. In most day-to-day situations people prefer to be quietly thanked and acknowledged. Putting an achievement under the spotlight can be very uncomfortable for people. Public appreciation and acknowledgement of success is best saved for the big accomplishments.

Best Practices

Start with paying attention. Instead of: “Thanks for the help!” Make your remarks more specific: “I appreciate you taking time out from the mail run to help me hang that painting. I’ve wanted to get that painting off the floor and onto the wall for ages. Thanks so much!”

Check in with yourself daily. If you aren’t in the habit of expressing appreciation then in the beginning track your progress. At the end of each day ask yourself if you acknowledged anyone’s actions over the day. If you didn’t, that’s ok, start again tomorrow.

When bigger thanks are in order, loop some other people in. This isn’t a big broadcast thank you such as the type I mention above. It is making the person’s contribution known within a small circle of people who matter to the person. For example, a lawyer friend I will call “Dave” (to protect his confidentiality) recently delegated a hearing preparation assignment to an associate he hadn’t worked with before. Not only did the associate get the work back to Dave on time, it was very well written. Dave had to do very little in the way of revisions and got to take Saturday off instead of working on corrections. Dave emailed the associate to thank him for getting the work in on time and for doing such an excellent job of the writing. Then Dave emailed his partner, cc’ed the associate, and told him about the strong writing skills the associate demonstrated in his most recent piece of work. Needless to say the associate was most appreciative of having the praise passed on to another partner. And kudos to Dave for handling the acknowledgment so ably.

It Is So Simple

Appreciating our colleagues is a very simple way to contribute to a happier workplace. Why then is it so scarce in our law firms? I think that under the pressures of legal practices simple things such as appreciation are forgotten. This article is the call to remember, and take steps to make this a part of your daily practice.

I agree with leadership coach Marshall Goldsmith who says: “When it comes to gratitude, I am a radical fundamentalist.” Join with me in developing a culture of appreciation within our law firms.