Documentary Discovery: How It Should Look

A litigation culture has arisen in this province over the last three decades which extols creating and litigating peripheral procedural disputes, instead of moving towards the timely adjudication of disputes on their merits. That culture now lauds, as the skilled barrister, the motions specialist, not the final hearing expert.

  • Justice Brown in “A 5-Point Action Plan to Get the Civil Justice System Moving Back in the Direction of Achieving its Fundamental Goal – The Fair, Timely and Cost-Effective Determinations of Civil Cases on their Merit”

The culture of creating and litigating peripheral disputes instead of going to trial has caused documentary discovery to go awry. Many lawyers no longer focus on which documents are truly needed to establish the elements of their claim or defence. This unfocused discovery “designed to uncover facts that relate only tangentially, if at all, to… the theory of the case” wastes time, money, and energy (Larry Pozner and Roger Dodd state in Cross-Examination: Science and Techniques).

To recalibrate documentary discovery, Justice Brown recommends in “A 5-Point Action Plan” that we narrow the obligation to produce documents. In particular, he suggests that parties’ limit their requests to the documents that they intend to rely upon at trial or to the documents that the other side would rely upon at trial to support its claim or defence:

[42] To achieve that re-orientation, we need to re-jig the timing of mandatory documentary disclosure so that it reflects the link between the materiality of a document to the adjudication of an issue at trial. To that end:

(i) The plaintiff/applicant should deliver with its claim or notice of application the documents upon which it intends to rely at the trial or final hearing;

(ii) The defendant/respondent should deliver with its defence or responding materials (i) the documents upon which it intends to rely at trial together with (ii) those documents which the defendant should reasonably foresee would assist the plaintiff in establishing its case;

(iii) The plaintiff/applicant would be required to deliver with its reply (or in any event of a reply) those documents which the plaintiff should reasonably foresee would assist the defendant in establishing its defence; and,

(iv) Each side could then make one or two rounds of post-pleading requests for further documents…

[44] To those raised in the traditional adversarial system, requiring a party to produce documents which it should reasonably foresee would assist its opposite party at trial might seem like unusual phrasing. But, the essence of such a production obligation would not differ from the current obligation to produce “relevant” documents, for documents which would assist the other side at trial by definition would be relevant…

[49] By requiring the parties to produce the material trial-related documents with their pleadings, arguably one could narrow and focus subsequent rounds of production requests and reduce e-discovery costs…limit the number of discoverable issues to those which really will count at trial and also restrict the scope of e-mail discovery to those issues, as well as to the handful of custodians who actually had something to do with those issues.

Justice Brown’s article should be mandatory reading for every law student, civil litigator, and Rules of Civil Procedure drafter. It is crucial that we rein in ballooning, disproportionate requests for documents that relate only tangentially to the case. Failing to do so, in the words of Justice Brown, enables documentary discovery to become akin to seppuku, a form of ritual suicide.

Podcasting as Commentary


Up to a few months ago, I didn’t know much about WWI. I did certainly know more than the characters in Friends, but, like most, I knew considerably less on this conflict than on the other world war. To be fair to me, I had a reasonable idea of the convoluted causes of the conflict from reading Margaret MacMillan’s “The War That Ended Peace” (still, that was only a couple of years ago), but not much about the actual fighting. Then I listened, over the summer, to a 20+ hour series of podcasts by Dan Carlin entitled “Blueprint for Armageddon”, and I finally feel like I have a sense of the nonsense that happened during this conflict. I had never put time driving my car to such good use.

Item #5 in Rob Ambrogi’s “10 Most Important Legal Technology Developments of 2015” is “Podcasts Enjoy a Resurgence”. Judging from the amount of podcasting we listened in my household this last year, I certainly have direct, if anecdotal, evidence that Rob’s statement is true. But how is this concretely influencing the legal world? Most interestingly, can podcasts influence the law itself?

Justia’s Blawg Search is probably the place where you can find the biggest compilation of active legal podcasts, but there is not a ton of discussion of actual law among these. It’s one thing to talk about law practice management topics in a podcast, but it’s another one to see podcasts as a medium for credible commentary or even as a source of law (at least if one can imagine that academics providing long-form commentary about Québec civil law in a podcast would be creating “doctrine”).

The discussion on the value of blogs as commentary isn’t a recent one, and is still active. See also this from 2010 and this from 2013, and for evidence that there is indeed discussion on the role of blogs as potential “doctrine” under civil law, see the description in French of this conference (that I’m sad I missed).

So if there’s such a discussion about the value of blogs as commentary and its influence on the law, I don’t see why we would refrain from having the same conversation with podcasts. An indication that some experts believe that blogs and podcasts may be of equal importance today is found in Rob Ambrogi’s previously mentioned post where it says that “for the 12th edition of his annual Blawggie Awards last week, Dennis Kennedy decided not to talk at all about blogs and focus exclusively on podcasts” (see Dennis’s post here).

It’s also interesting to make a parallel with video as another form of non-text legal information. An increasing amount of video legal content is being uploaded to the Internet, from recorded CLEs to original content in the form of short law firm made video clips about a recent development in the law. Contrary to current legal podcasts, most of such videos discuss substantive law. As a result, I’m tempted to believe that legal practitioners today would be more open to accepting content like a video recording of a conference as potentially valid commentary, but not (for example) an audio-only version of the exact same content recorded in [a basement disguised as] a studio.

But despite its relative and recent abundance in the legal sphere, I don’t think video is an ideal medium for legal information, for now at least. I have yet to see anything else but a speaker talking to a camera. That said, I’m aware that there are costs involved in creating effective visual support in videos.

Even excluding my issue with suboptimal use of visual support I’m sorry to say that the vast majority of us legal professionals aren’t that interesting to see on video (then again there’s that, for those who recently binged on the otherwise depressingly sad story presented in Making a Murderer): we don’t dance, we don’t usually wear particularly colourful or revealing clothing and we don’t usually do anything exceedingly outrageous, funny, dumb or otherwise remarkable on camera.

Until we get collectively better at using the visual part of video content, podcasts seem to me like an appealing medium for non-text legal commentary. Another advantage with audio-only content is that it can be listened while driving (but if reports from Silicon Valley are to be trusted, that advantage may soon go away) or doing something else that makes it dangerous to stare at a screen (walking next to a cliff, for example). As and aside, if we are truly into videos, then maybe it’s time to consider rotating the camera to shoot in vertical mode.

My point is, therefore, that podcasts are a convenient way to convey legal information and we should at least be open to discussing if, when done right, they could be considered as valid and insightful commentary and be cited as such when appropriate, including in courts.

To some of you, this may look as if I’m just looking for the next toy to play with, but if one accepts what some say about members of “Generation Z” having a “mind of their own” (see p. 7 here, or here), finding how the new generation of “clients” of the legal system will learn and communicate about the law is important. I feel that in this context, understanding the impact of non-textual legal information, including both video and podcasting, is key to the future relevance of the legal profession and of current legal information providers.

 


 

Random thoughts:

  • Just for fun, I have been playing with Wikipedia’s “create a book” feature and created this book from a compilation of Wikipedia pages about intellectual property law in Canada. It doesn’t look bad at all!
  • The critic, in my last Slaw column, of the 140-character limit in Twitter was heard.
  • This post on Reddit presents a 2016 “technological timeline”. From what I can see, you may well have a virtual reality device in your home soon. I, for one, have abandoned most other modes of entertainment than learning new things by following MOOCs in the last year, and look forward to VR as a potential next big step in online learning, where you sometimes feel a little bit alone late at night in your living room. Having VR in your living room is one thing, but having VR in a court room is a much more interesting idea, in these corners of the blogosphere at least.
  • Speaking of Reddit, for those who read my last post and were intrigued, the Futurology subreddit is a good place to start if you are interested in realistic technological prophecies.

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. Stuart Budd & Sons Limited v. IFS Vehicle Distributors ULC, 2016 ONCA 60

[88] I have no doubt that the motion judge was well-intentioned. I have no doubt that he put a great deal of effort into resolving the jurisdiction issue. However, my review of the three endorsements leads me to conclude that the motion judge’s actions gave rise to a reasonable apprehension of bias. He made unwarranted negative comments about the appellants – their counsel, their position, and their arguments – prior to the conclusion of argument and arbitrarily curtailed argument. He then wrote reasons that went beyond reflecting the reasoning process and entered the fray as an advocate for his actions and decisions in the Second Endorsement.

(Check for commentary on CanLII Connects)

2. Doe 464533 v N.D., 2016 ONSC 541

[20] There can be little doubt that the decision by the plaintiff to provide the defendant with an intimate video of herself engages issues of confidentiality and privacy. They had a close personal and romantic relationship of some duration. It was on the basis of that relationship that she agreed to provide him with private images of her. The plaintiff’s decision to send the video was premised upon the defendant’s assurance that he alone would view it. His decision to share it publicly was a clear breach of the terms upon which it was communicated to him.

(Check for commentary on CanLII Connects)

3. Leadbetter v Nor, 2016 ONSC 796

[21] Mr. Sokol argued that there is considerable prejudice to the Minister due to the late service of the jury notice. He argued that the examination for discovery of Leadbetter and the mediation would have been done differently by the Minister had a jury notice been properly served. He also argued that the integrity of the mediation process would be undermined if a jury notice served two days after the mediation, such as this one, was not struck. He argued that I should assume that the parties “exposed” their trial strategies to each other at the mediation, thereby giving the plaintiff the unfair strategic advantage of changing the trial “landscape” to suit what was learned at the mediation. He relied heavily on the decision of Master Brott in Crummey, op. cit., at page 3 where she described discovery as a “watershed event” in determining the issue of prejudice concerning a late jury notice. The Master also made mention of a mediation that had taken place prior to the jury notice. The Crummey decision was referred to by Justice Perell in the Bragg decision at paragraph 33.

(Check for commentary on CanLII Connects)

The most-consulted French-language decision was Zaccardo c. Chartis Insurance Company of Canada, 2016 QCCS 398

[4] Or, Andrew n’est pas la victime d’un accident ni d’un risque inhérent de la pratique du hockey. La mise en échec par-derrière est catégoriquement défendue par les règles qui en régissent la pratique. Elle n’en fait pas partie de façon légitime et sa prohibition constitue une règle de prudence que les joueurs doivent observer.
[5] L’assaillant d’Andrew le sait. Malgré cela, il ne tente pas de l’éviter alors qu’il s’approche de lui par derrière à bonne vitesse. Au contraire, il utilise son avant-bras pour le projeter contre la bande et accentue son geste en sautant.

(Check for commentary on CanLII Connects)

* As of January 2014 we measure the total amount of time spent on the pages rather than simply the number of hits; as well, a case once mentioned won’t appear again for three months.

“Thank You”: The Two Most Important Keywords in Business Development


The friendly folks at SLAW remind us regularly when columns are due. On receiving one such reminder when I was at a family gathering, I asked everyone what I should write about next (my family happens to include five young lawyers). The youngest of them responded instantly: “Courtesy—and how little of it young lawyers have.”

This, from a first-year associate? It’s the kind of comment I expect from a grizzled veteran, accompanied by the inevitable “I dunno, kids today….” rant. When I asked her to elaborate, she noted that communications quickly become personal, as in: “If you had read my email on time you wouldn’t need an extension….” “Your proposition is ludicrous…,” etc. Rather than solving the client’s problem, their objective seems to be getting back at the other lawyer.

First, I’d like to congratulate all who had a hand in guiding this young lawyer: she’s got it right, straight out of the gate. It usually takes years to recognize that courtesy is more effective than insults. You can never look bad by being unfailingly courteous.

Next, I’d like to answer the inevitable question, “What has this got to do with marketing?” Well, good manners are essentially about good communication—which is the core of good marketing.

So how is courtesy a marketing tool? First, think referrals. The biggest source of referrals to lawyers is other lawyers, who know that an unfailingly courteous lawyer will make them look good: “We sent our client to Lawyer X because whenever we’ve had dealings with her, she’s been terrific, always polite, always prompt.”

Then think testimonials. As part of a marketing project for one client, I interviewed a series of their clients. One of the common denominators that leapt out at me when I reviewed my notes was the firm’s reputation for good manners. One client commented on how good it made her feel to be represented by someone who kept his cool, was very professional, and acted like a gentleman throughout, when others in the courtroom were behaving like thugs. It probably went down well with the judge too, because the result was very much in this client’s favour. That testimonial now forms part of their marketing materials.

Now think about being proactive. Courtesy communications can remind clients and colleagues that you’re out there. Thanking someone for a referral gives you the opportunity to showcase recent results and remind referral sources about the type of work you want. That note of congratulations on a recent win or successful transaction might arrive just when your colleague is conflicted out of a matter and needs to refer work elsewhere. Your informative response to a question on an industry or bar association listserv boosts your reputation and your visibility.

Courtesy is the oil allows professional relationships to keep functioning.

Conversely, lack of courtesy can cause the pipeline to dry up. Failing to thank for referrals, not returning favours, or not acknowledging contributions can come back to bite you. I was working with a client recently who complained about another lawyer from her previous firm. He often asks for her opinion on matters and then passes on her opinion to his client—as his own. Seldom does any work come her way from this lawyer. I suggested that next time, she should send him a bill, itemizing the service and the time taken, but in place of “Amount due”, insert: “No charge, professional courtesy”.

Courtesy, like charity, begins at home: be courteous to your colleagues. Thanking them personally for their assistance and publicly acknowledging that assistance will make them want to work with you again. You’ll be the one they think of when an important project comes up.

Yes of course courtesy takes time, which is why there’s so little of it. But once you recognize that courtesies can pay off, you can instruct your staff on how to help you. For example, I was once working on some client communications with a very busy lawyer who had time to give me only the bare facts, but asked me to put in “all the things I don’t have time for”. She meant all the preliminary courtesies and the thanks and best wishes on signoff.

Make your assistant your Chief Courtesy Officer: lay down some ground rules about what you want to achieve and then get your assistant to assemble all the necessary details about your contacts (spouse’s names, birthdays, children’s names and ages, hobbies, special interests are just a few). Your assistant can quickly learn which courtesies to use with which contacts. And above all, thank your assistant!

The bottom line is that you never know when courtesy will pay off next. That first-year associate will one day be handing out plum assignments—and she’s got a very long memory!

Oh, and thank you for reading this. I’d appreciate any comments you may have.

Tips Tuesday


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

Research & Writing

Advice for Associates and Students
Neil Guthrie

You feel nervous about publishing something, right? You should be, a bit – but don’t let it put you off. Some things to bear in mind: get a partner to vet your idea and your draft, for technical accuracy; defer to the senior person on points of law (unless you can show you’re right), but not always on stylistic matters (as an articling student, I stood my ground when a partner insisted that theirself was a word)…

Practice

Make – and Implement – a Plan
David Bilinsky

There are many questions to ask yourself and to think about before you reach your decision as to whether or not you would like to open a law practice. In talking to other lawyers, they will have some very helpful questions that will be very insightful and provide guidance as to whether you are making the right move or not. …

Dealing With a Self-Represented Litigant Who Really Needs Legal Advice

Self-represented litigants are a challenging reality in today’s legal landscape. In addition to the extra time and effort that can make dealing with a self-rep more expensive for your client and more frustrating for you, it seems there is a greater potential for a malpractice claim. This is highlighted by the number of claims LAWPRO is seeing where the opposing party was a self-rep. In 2014, there were 162 such claims, almost double the 86 we saw a decade earlier, in 2004.

As you work to resolve a matter, you may find yourself negotiating directly with a self-represented litigant. In the discussions that will occur, facts will be disclosed, legal issues will arise, and decisions will have to be made by both parties. as the lawyer in the middle of these discussions, you may be faced with the question of what duties you owe and to whom. Consider the following hypothetical situation:

You represent the wife in a matrimonial proceeding. The husband is unrepresented. The marriage was of short duration and there were no children. The only asset is the husband’s pension. At a mediation, the parties agree to settle on the basis that the husband’s pension will be divided equally. The husband, who is in a new relationship and is anxious to settle, signs the minutes. Before you have your client sign the settlement documents, you require a clarification from the pension provider.

Following the mediation, you review additional disclosure provided by the husband and discover that the husband made an assignment in bankruptcy following the separation. You also realize you overlooked documents in your file which mentioned the assignment. You conduct a bankruptcy search and, to your surprise, learn that the husband had been discharged following your retainer and prior to the mediation.

An order of discharge from bankruptcy releases the bankrupt from all claims provable in bankruptcy. In this case, because of the husband’s assignment in bankruptcy, the wife should have obtained a court order under Section 69.4 of the Bankruptcy and Insolvency Act for leave to pursue her claim. Pensions are not assets that vest with the trustee in bankruptcy and are exempt from bankruptcy proceedings. As such, the husband’s creditors would not have been prejudiced and a leave order most likely would have been granted. assuming leave had been granted, the wife would have been free to pursue the claim for part of her husband’s pension. However, as the husband was discharged from bankruptcy, it is too late to seek leave. In this case, the wife could very well lose her claim to the husband’s pension. As mentioned earlier, the husband is in a new relationship and is still eager to sign the minutes of settlement. He emails and calls you repeatedly asking whether his wife has now signed the settlement documents.

As it turns out, the minutes of settlement need minor amendments due to information given by the pension provider, which requires the husband to re-sign them. You are concerned about the ethics of asking the husband to re-sign a settlement now that you know the husband has no legal obligation to divide his pension.

What do you do? Fortunately the Rules of Professional Conduct (in Ontario) provide guidance for this situation. First, as a lawyer you owe a duty to your client. Having said that, Rule 7.2-9 provides that when a lawyer deals on a client’s behalf with an unrepresented person, the lawyer shall:

  • Take care to see that the unrepresented person is not proceeding under the impression that their interests will be protected by the lawyer; and
  • Take care to see that the unrepresented person understands that the lawyer is acting exclusively in the interests of the client and accordingly their comments may be partisan.

After having reported this matter to LawPRO, you also consult with Practice Advisory at the Law Society of Upper Canada. As a result of direction provided to you, you draft a letter to the husband which encloses the Minutes of Settlement and includes the following paragraph:

Please be informed that I do not represent you in any way and am not protecting your interests. You should therefore seek legal advice prior to signing these documents. I act exclusively for Ms. Smith and any comments that I have made may be partisan. Again, we strongly suggest and recommend that you review these documents with a lawyer of your own choosing and obtain independent legal advice before signing them. We trust that this is perfectly clear, and remain…

Although it is not required by the Rules of Professional Conduct, it is prudent to urge the self-represented litigant to obtain independent legal advice as indicated in the above letter. Whether the husband seeks independent legal advice and signs the minutes remains to be seen. Either way, Rule 7.2-9 provides excellent loss prevention advice. Following it will rebut any allegation by the non client husband that he relied upon the lawyer to protect his interests.

Failing to follow the rule invites the risk that such an allegation will succeed. Indeed, there are numerous reported decisions which criticize lawyers for failing to recommend ILA.

Consider the above scenario next time you have a self-rep on the other side. always remember who your client is, and where your duties lie.

This article is by Yvonne Diedrick, and can be found in the January 2016 issue of LAWPRO Magazine. All past issues of LAWPRO Magazine can be found at www.lawpro.ca/magazinearchives

Debt Money, Banking Profits and Canadian Sovereignty

I happened upon an interesting story on a website called Collective Evolution entitled, “Canadians Sued The Bank Of Canada & Won. Mainstream Media & Government Blacks Out Story.” The report stated:

“The truth is, The Bank of Canada used to issue debt free loans to the government, which meant that the nation would not go into debt to private banking institutions. When that changed, private bankers/corporations essentially gained control and ownership of the country.”

This struck me as a potentially conspiratorial piece on a sketchy website but certainly intriguing enough that I wanted to know more. So I’ve been poking around trying to find out more about the veracity of this case.

It turns out that this is constitutional lawyer Rocco Galati’s latest legal battle. Galati specializes in suing the Canadian government and in this case he’s representing William Krehm, Ann Emmett, and COMER (Committee for Monetary and Economic Reform). Their fight is to restore the role of Bank of Canada to its originally mandated purpose: providing interest-free loans to the federal, provincial, and municipal governments, as laid out in the Bank of Canada Act.

Loans from the Bank of Canada financed “nation building projects” like the St. Lawrence Seaway, the TransCanada Highway, and many other infrastructure projects that helped “develop our natural resources, power our cities, and connect with each other and the world.” But in 1974 the Bank of Canada stopped providing these loans.

Writing in the Watershed Sentinal*, freelance writer/researcher Joyce Nelson characterizes this case as “one of the most important legal cases in Canadian history” and describes the crux of the issue as follows:

“After 1974, the Bank of Canada stopped lending to federal and provincial governments and forced them to borrow from private and foreign lenders at compound interest rates – resulting in huge deficits and debts ever since.”

She concludes by saying that borrowing from the Bank of Canada is necessary to reestablish a responsible fiscal policy in Canada and will “keep policy decisions out of the hands of foreign lenders.” Or as Galati puts it: “We effectively, through the Bank of Canada, have relinquished are sovereignty to private banking interests. We are saying to private individuals abroad, you can control our public bank …

It’s amazing that this court case did not surface during our recent election campaign. This may be, as Bill Still reports and Galati has a “firm basis to believe”, that the government somehow instructed the mainstream media not to report on this case because it “strikes at the heart of the debt money system.”

Despite this alleged and unbelievable government interference, Amanda Lang did provide us with a nice interview with Galati last May on the CBC program Exchange. And for more information there’s also a lengthy and detailed presentation featuring Ann Emmett and Galati on the Occupy Our Bank blog that’s worth checking out.

If the Bank of Canada was set up to provide our government interest free loans that support infrastructure projects, education, health care, and other social programs, then why have we signed on to pay “$30 or $40 billion a year in useless interest”?


 

* Reprinted in the November-December issue of the Journal of the Committee on Monetary and Economic Reform.

In Praise of the Queen’s Counsel


For many lawyers, December is a month filled with anticipation as most of the provinces announce coveted Queen’s Counsel (QC) appointments prior to Christmas. For federal government lawyers, they waited for an announcement that never came.

In 2013, the Harper government revived the federal QC after a two-decade hiatus. In 2015, the new Trudeau government appears to have quietly abandoned this practice. Or it may simply not have been a priority for a busy new government. Whatever the explanation, if the Trudeau government wants to recognize the value of public service, it should continue the practice of awarding QCs to federal lawyers.

Historically, Queen’s Counsel (or King’s Counsel when the reigning monarch is male) have been awarded in the United Kingdom and some Commonwealth countries to senior members of the bar. In Canada, both the federal government and the provinces have the constitutional authority to award QCs. Perhaps not surprisingly, this issue was decided in 1897 by the Judicial Committee of the Privy Council when the federal government challenged upstart Ontario’s power to award QCs. It is so Canadian to have a Privy Council division of powers decision on this issue.

Over the years, there were highs and lows to the Canadian QC. One of the highs was the 1934 appointment of Helen Alice Kinnear as the first female King’s Counsel in the British Empire. The list of QCs and KCs includes many past greats of the Canadian legal profession: John Robinette, Newton Rowell, John Diefenbaker, Louis St. Laurent, Lincoln Alexander and Bora Laskin. I enjoy the idea that Bora Laskin likely received his QC in 1956 at least partially on the strength on his Constitutional Law casebook.[i] Of course, many worthy lawyers never received QCs. And others of questionable merit received their designation more on the basis of service to the party in power than service to the profession. Because of political patronage, some provinces overhauled the process of appointing QCs and others (Manitoba, Ontario and Quebec) abandoned it altogether. The federal government fell into this latter category, abandoning the process altogether in 1993.

The Government of Canada revived the QC in 2013 but decided – rightly in my view – to restrict the award to lawyers who are literally “the Queen’s Counsel”, i.e. federal government lawyers. Minister of Justice Peter MacKay revived the practice in December 2013 on the occasion of the anniversary of the Statute of Westminster and the end of Queen Elizabeth’s Diamond Anniversary. In December 2013, Mackay awarded QCs to Simon Fothergill, Deputy Secretary to the Cabinet (Legislation and House Planning, and Machinery of Government) and Counsel, Privy Council Office; Colonel P.K. Gleeson, Deputy Judge Advocate General Operations, Military Justice and Administrative Law, Department of National Defence; Claude Joyal, Senior General Counsel, (Quebec Regional Office), Department of Justice; Urszula Kaczmarczyk, Senior General Counsel, Ontario Regional Office, Department of Justice; Sandra Phillips, Associate Assistant Deputy Attorney General for Tax Assessments; Donald K. Piragoff, Senior Assistant Deputy Minister, Department of Justice; Brian J. Saunders, Director of the Public Prosecution Service of Canada. In December 2014, seven federal lawyers were awarded the Q.C. designation: Robert Frater, Senior General Counsel with the Office of the Assistant Deputy Attorney General of Canada; Colonel Vihar Joshi, Deputy Judge Advocate General in the Canadian Armed Forces; Guy Laurin, Senior General Counsel, Legislative Services with the Department of Justice; Liliana Pecorilli-Longo, Senior General Counsel with the Department of Justice’s Legal Services for the RCMP; Croft Michaelson, Senior General Counsel, Ontario Regional Office of the Public Prosecution Service of Canada; and William Pentney, Deputy Attorney General of Canada and Deputy Minister of Justice of Canada.

I am privileged to know several of these lawyers and they rank amongst the best legal minds and talents in the country. However, you won’t find their names listed in any directories of top lawyers in their field. Neither will you find a single government lawyer listed among Lexpert’s Rising Stars. Government lawyers are the Rodney Dangerfield of the legal profession: they get no respect. However, as I have written elsewhere, government lawyers are important and underappreciated members of the legal profession and of our justice system.

There was much to criticize in the Harper government’s justice policy and in the job that Peter MacKay did as Attorney General and Minister of Justice of Canada. Prime Minister Harper and the PMO often sidelined the professional legal advisers in the Department of Justice. Minister of Justice Peter Mackay proved all too often unable or unwilling to stand up for the Constitution and the rule of law. However, these are not reasons to abandon the public recognition of government lawyers that begun under Tory stewardship. Ultimately, awarding federal QCs to deserving federal government lawyers is in the interests of the public service, the Department of Justice, the legal profession and of the government of the day.

_____________________________

[i] Philip Girard, Bora Laskin: Bringing Law to Life (Toronto: Osgoode Society for Canadian Legal History, 2005) 180.

Monday’s Mix


Each Monday we present brief excerpts of recent posts from five of Canada’s award­-winning legal blogs chosen at random* from seventy recent Clawbie winners. In this way we hope to promote their work, with their permission, to as wide an audience as possible.

This week the randomly selected blogs are 1. McElroy Law Blog  2. Rule of Law 3. Social Media for Law Firms  4. AvoidAClaim  5. SOQUIJ

McElroy Law Blog
Criminal law round-up

In what I’m hoping will be a monthly feature, here is a round-up of some of the last month’s news, cases and goings-on in criminal law in Ottawa and beyond. In the news: The Correctional Investigator of Canada Howard Sapers released a report stating that over 25% of federal inmates are Aboriginal. For a more personal story, check out this story by Kenneth Jackson from APTN about Marlene Carter, a Cree woman with significant mental health issues who has been in custody for most of her adult life. …

Rule of Law
Alberta Court Orders Beneficiary of Registered Retirement Income Fund to Bear the Tax Burden on the Annuitant’s Death

When the annuitant of an Registered Retirement Savings Plan or Registered Retirement Income Fund dies, taxes in respect of either type of registered plan are generally borne by the deceased’s estate, rather than by the beneficiary of the registered plan. There are some exceptions, including significantly the ability to defer taxation if the proceeds are paid to the annuitant’s spouse (I have written about the taxation of registered plans in greater depth in a previous post). …

Social Media for Law Firms
Lawyers: What’s Your Biggest Social Media Question?

My dear friend Nancy Myrland published a blog post earlier today, Lawyers: Do These Questions About Social Media Sound Familiar? She mentions she writes a lot about social media and social networking because Lawyers have a lot of questions including: Where do I start? Who do I follow? Which sites should I use? …

AvoidAClaim
Four things that can lead to a denial of coverage under your LAWPRO policy

Insurance is different from other types of contracts. Besides the ongoing obligations (as described in the policy’s terms and conditions) that exist between the insurer and insured, there is also a duty of utmost good faith (uberrimae fidei, for you Latin fans). Just as an insurance carrier can’t act in bad faith in denying a claim, a purchaser of insurance coverage is required to deal honestly and fairly with the insurer. …

SOQUIJ
L’information juridique gratuite pourrait vous coûter cher

Internet offre des possibilités incroyables. Dans divers aspects de notre vie, la question se pose de plus en plus : « Pourquoi payer pour de l’information ? » En droit, plus encore que dans tout autre domaine, la qualité et la pertinence des sources devraient être une priorité de chaque instant. Depuis plus de 40 ans, l’équipe SOQUIJ travaille chaque jour à être la source d’information la plus complète et la plus fiable sur le marché. La raison de cette longévité ? La pertinence. …

_________________________

*Randomness here is created by Random.org and its list randomizing function.

Employee Privacy, on and Off the Job, in an Era of Technology

At the past OBA Institute this week, the Labour & Employment and Privacy & Access to Information sections conducted a joint session on employee privacy, one of the most rapidly expanding and pressing areas of the intersection of both these areas if practice.

Daniel Wong of Osler, Hoskins & Harcourt LLP looked at the statutory leaves of absences under the ESA, and the basis for which employers can request information for these leaves. Although these unpaid leaves are guaranteed by statute, an employer may still require documentary evidence substantiating these leaves. Problems arise though where an employer requests additional information beyond what they are entitled to.

Pregnancy leave, under ss. 46-47 of the Act, requires notice at least 2 weeks notice prior to the leave beginning. However, these sections also allow an employer to obtain a certificate from a medical practitioner about when the due date is, and if there are any complications from the pregnancy or birth, a certificate relating to the situation and how it affects the employee’s ability to perform job duties may also be obtained.

Similarly, for family medical leaves under s. 49.1 of the Act, family caregiver leave, or critically ill child care leave, a certificate can be requested indicating that the family member has a serious medical condition justifying the employee’s absence. Where the leave is for the purposes of providing care, an employee must provide a written plan indicating the weeks when the leave will be taken.

The exchange of information is also something which underlies the shared responsibility found in the accommodation process for disabilities and the duty to accommodate. The OHRC Policy on this emphasizes dignity as an underlying priority, but also states,

The duty to accommodate a disability exists for needs that are known. Organizations and persons responsible for accommodation are not, as a rule, expected to accommodate disabilities of which they are unaware. However, some individuals may be unable to disclose or communicate their needs because of the nature of their disability. In such circumstances, employers should attempt to assist a person who is clearly unwell or perceived to have a disability, by offering assistance and accommodation. On the other hand, employers are not expected to diagnose illness or “second-guess” the health status of an employee.

The situation for mental health accommodation outside of the employment context has developed in a slightly different manner to align more closely with practices in the employment relationship.

A new documentation guideline to access academic accommodations was recently developed in light of a challenge from a graduate student at York University. These students no longer have to disclose Diagnostic and Statistical Manual (DSM) diagnosis to register for mental health accommodations and supports. Instead the documentation simply confirms there is a diagnosed mental health disability and focus on any restrictions or limitations necessary.

Fazila Nurani of Privatech spoke on creating employee privacy policies. She stated that privacy breaches in the employment context will continue to occur, and there are some arbitrators indicating that the appropriate standard for employees should be zero tolerance. For some seemingly minor violations it may be appropriate to dismiss an employee for breaching privacy policies, even if the breach was a seemingly minor violation.

She pointed to the Centre for Plain Language’s checklist to create a better employee privacy policy. She emphasized that you shouldn’t assume nobody willl read it, because increasingly sophisticated employees may find details and clauses which appear problematic. The importance of plain language is that it helps create goodwill. Clarity provides employees a meaningful opportunity to understand employer expectations. Consent from employees may therefore not be truly informed, and may even undermine the working relationship with employers.

Dean Ardron of Ursel Phillips Fellows Hopkinson LLP covered the employer right to surveillance. The state of the law in this area has “consistently reached irreconcilable and diametrically opposed conclusions.” The two approaches used in Ontario include the relevancy approach and the reasonableness approach.

The relevance approach to video surveillance in the workplace will typically admit these videos as evidence if they are relevant to the proceedings. Arbitrators adopting this approach have expressed reluctance to consider the means through which the evidence was obtained. The statutory authority often relied on in Ontario is s. 48(12)(f) of the Labour
Relations Act, which provides far broader authority to arbitrators for admissibility of evidence. The lack of any historic common law right, or express statutory provisions preventing this, has empowered some employers to obtain video surveillance even in circumstances which might otherwise be unreasonable.

Perhaps in response to the relevance approach, some arbitrators have insisted instead on using a reasonableness test to look at all of the surrounding circumstances. They first ask whether the circumstances reasonably justify the surveillance, and then look at whether the surveillance was carried out in a reasonable manner. Only if both of these steps are met will the surveillance be admitted.

The factors which arbitrators often look at when considering reasonableness include alternatives which may have been available to the employer. They may consider suspicion an employer has and the basis for it, the nature of the potential harm to the employer, the degree of impairment to the working relationship, and level of intrusion involved.

The challenge with the reasonable test is that it presumes there is a limited but implied right to privacy in Ontario. The absence of any definitive authority on this right makes it difficult to uphold uniformly. Arbitrator Kirkwood emphasized the importance of the relationship involved in City of Toronto and Canadian Union of Public
Employees, Local 7911, (2004), 128 L.A.C. (4th) 217,

While there is no statutory right to privacy in the province of Ontario, there is a compelling and influential reason not to rely solely on the test of relevance in admitting evidence, but rather to also take into account the continuous relationship between the employer, the union and its employees, which is based upon trust…

In furthering that trust, and harmonious labour relations, within the context of labour relations and the administration and application of the collective agreement, there is some expectation of an entitlement to privacy by the employee, such that the employee may carry on his or her life outside the watchful eye of the employer.

James Cameron and Dayna Steinfeld of Raven, Cameron, Ballantyne & Yazbeck LLP discussed employee entitlement to privacy outside of the workplace.

Although most employees generally expect their private lives to remain private, there are some times when their conduct does intersect with legitimate interests of the employer. Social media in particular is changing the way that employers perceive off-duty conduct, and is usually brought to the attention of the employer by co-workers.

In Canada Post Corp v CUPW, (2012), 216 LAC (4th) 207, a postal clerk was terminated after 31 years because of the postings on her Facebook. The account in question was public, and there were 50 co-workers connected to the account, which were notable facts here.

With blogs, there is even less of a privacy interest given the public nature if their readership. In Alberta v AUPE, (2008), 174 LAC (4th) 371, a grievor was dismissed due to unflattering comments about co-workers and management. The Board took particular note that no efforts were made to prevent public access, and the posts were made in her name.

Case law on employer monitoring of online activity of employees is more limited, but the new tort of intrusion upon seclusion may potentially be used in this context by an employee against an employer’s activities.

The test used for disciplining off-duty conduct is from Millhaven Fibres Ltd v Atomic Workers Int’l Union, Local 9-670, [1967] OLAA No 4:

(1) the conduct of the grievor harms the Company’s reputation or product;
(2) the grievor’s behaviour renders the employee unable to perform his
duties satisfactorily;
(3) the grievor’s behaviour leads to refusal, reluctance or inability of the
other employees to work with him;
(4) The grievor has been guilty of a serious breach of the Criminal Code and
thus rendering his conduct injurious to the general reputation of the
Company and its employees;
(5) Places difficulty in the way of the Company properly carrying out its
function of efficiently managing its Works and efficiently directing its working
forces

 

These factors are used on a balancing of interests, with the recognition that employees are owed privacy when not at work. The general trend in recent cases is a growing need to recognize the need to protect employee’s privacy, and an employer will only be justified in interfering with this or implementing discipline where a legitimate business interest is affected.