The Trouble With Kerning and Spacing

Writing clearly and concisely is a goal that often eludes lawyers, especially when writing factums.

Justice Barbier of the United States District Court Eastern District of Louisiana ruled on a motion on Sept. 15, 2014 in the complex litigation surrounding the BP oil spill, In re: Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico, on April 20, 2010.

Although denying the motion, Justice Barbier commented on the response by BP, in particular in their formatting:

…the Court must address the format of BP’s opposition memorandum.

The briefing order allowed BP’s counsel to file a response of up to 35 pages, double-spaced. (Rec. Doc. 13154).

This is 10 pages over the usual limit for response briefs. BP’s counsel filed a brief that, at first blush, appeared just within the 35-page limit. A closer study reveals that BP’s counsel abused the page limit by reducing the line spacing to slightly less than double-spaced. As a result, BP exceeded the (already enlarged) page limit by roughly 6 pages.

The Court should not have to waste its time policing such simple rules—particularly in a case as massive and complex as this. Counsel are expected to follow the Court’s orders both in letter and in spirit. The Court should not have to resort to imposing character limits, etc., to ensure compliance. Counsel’s tactic would not be appropriate for a college term paper. It certainly is not appropriate here.

Any future briefs using similar tactics will be struck.

Similar tactics are adopted by many lawyers by using kerning,which subtly adjusts the spacing between characters. Sometimes lawyers are caught, and accordingly reprimanded by the bench. More often, the changes are so minor that they are often missed or overlooked.

The need to place page limits on court documents stems from the burden imposed on the court in additional time, and is a guideline used to impart fairness to both sides in litigation. You do have to wonder how many judges are measuring spacing though in these documents, rather than considering the merits of the contents.

Of course digital filling could probably resolve all of these concerns far better than manually inspecting documents.

Summaries Sunday: SOQUIJ


Every week we present the summary of a decision handed down by a Québec court provided to us by SOQUIJ and considered to be of interest to our readers throughout Canada. SOQUIJ is attached to the Québec Department of Justice and collects, analyzes, enriches, and disseminates legal information in Québec.

PÉNAL (DROIT: Une enseignante ayant exploité sexuellement un adolescent doit être punie comme le serait un professeur ayant eu les mêmes gestes envers une élève; en l’espèce, il y a lieu de condamner l’accusée, reconnue coupable notamment d’agression sexuelle à l’endroit d’un élève de 15 ans, à 20 mois de détention ferme.

Intitulé : R. c. Pontbriand, 2014 QCCQ 7928
Juridiction : Cour du Québec, Chambre criminelle et pénale (C.Q.), Terrebonne (Saint-Jérôme), 700-01-079426-089
Décision de : Juge Valmont Beaulieu
Date : 29 août 2014

PÉNAL (DROIT) — détermination de la peine — infractions de nature sexuelle — agression sexuelle — garçon — élève âgé de 15 ans — accusée enseignante de 30 ans — absence d’antécédents judiciaires — abus de confiance — abus d’autorité — condamnation avec sursis — cas inapproprié au prononcé d’une peine d’emprisonnement à purger dans la collectivité — réprobation sociale — dénonciation générale — dissuasion générale — revue de la jurisprudence — détention — probation — ordonnance de prélèvement de substances corporelles à des fins d’analyse génétique — ordonnance de se conformer à la Loi sur l’enregistrement de renseignements sur les délinquants sexuels — interdiction de posséder des armes.

PÉNAL (DROIT) — détermination de la peine — infractions de nature sexuelle — infractions sexuelles contre des enfants — contacts sexuels — incitation à des contacts sexuels — peine concurrente — détention.

Prononcé de la peine.

L’accusée a été reconnue coupable de contacts sexuels, d’incitation à des contacts sexuels et d’agressions sexuelles commis à l’endroit d’un élève âgé de 15 ans pour des faits ayant eu lieu entre 2002 et 2004, alors qu’elle-même était mariée et âgée de 30 ans. De très nombreux événements sont survenus lorsque celle-ci lui enseignait et certains autres se sont déroulés alors qu’elle n’était plus son enseignante. La commission des infractions s’est déroulée sur une période de deux ans, à de multiples reprises et dans divers lieux (école, automobile, résidence de l’accusée et camping). Dès la première fois, la victime et l’accusée ont eu des relations sexuelles. Maintenant âgée de 43 ans, cette dernière vit avec un conjoint et est mère de 2 enfants âgés respectivement de 6 et 7 ans. Elle est entraîneuse dans un club de conditionnement physique.

Décision
Les peines de détention pour ces infractions varient entre six mois et deux ans. Comme dans la présente affaire, les adolescents vivaient des difficultés émotives, les professeurs étaient leur confident, eux-mêmes ont confié leurs difficultés à ces derniers et des gestes à caractère sexuel ont suivi. Dans certains dossiers, des peines de détention à purger au sein de la collectivité ont été imposées. Cela dit, une enseignante ayant exploité sexuellement un adolescent doit être punie comme le serait un professeur de sexe masculin ayant commis les mêmes gestes envers une adolescente. Quant à la très grande médiatisation de l’affaire, l’accusée et sa famille ont connu des inconvénients. Par contre, il en va de même pour la victime, qui a aussi eu à vivre des conséquences négatives par l’entremise des médias sociaux. En outre, son identité a été divulguée. D’autre part, l’accusée ne pouvait ignorer qu’un jour cette relation prendrait fin et que la victime vivrait difficilement cette rupture. Elle a brisé le lien de confiance et d’autorité non seulement avec la victime, mais aussi avec la mère de cette dernière, les autorités scolaires et la société. Aucune preuve ne permet de conclure qu’elle vivait à l’époque des faits un état de détresse psychologique, des pathologies ou des déviances quelconques ou encore un état d’intoxication. D’autre part, celle-ci n’a aucun antécédent judiciaire. La perte de son emploi ne peut être considérée comme un facteur atténuant puisque cette situation est la conséquence des infractions pour lesquelles elle a été reconnue coupable. L’objectif de dissuasion personnelle est atteint et il en va de même de la réhabilitation de l’accusée. Malgré les facteurs atténuants, le critère de dénonciation générale prime. Par conséquent, l’accusée est condamnée à 18 mois de détention sous les 2 premiers chefs et à 20 mois sous le troisième. Une ordonnance de probation d’une durée de deux ans est également rendue. Il s’agit d’une peine de détention ferme. Permettre à l’accusée de purger sa peine au sein de la collectivité ne mettrait pas en danger la sécurité de la collectivité. Toutefois, malgré les conséquences qu’une peine de détention dans un centre de détention créera dans le milieu familial, la nécessité de dénoncer est si pressante que l’incarcération est la seule peine qui convienne afin d’exprimer la réprobation de la société à l’égard d’un tel comportement, compte tenu de l’objectif de dissuasion générale. L’accusée devra se soumettre à un prélèvement de substances corporelles à des fins d’analyse génétique en vertu de l’article 487.051 (1) du Code criminel (C.Cr.) et se conformer à la Loi sur l’enregistrement de renseignements sur les délinquants sexuels à perpétuité. Il lui est interdit de posséder des armes pour une période de 10 ans en vertu de l’article 109 C.Cr.

Réf. ant : (C.Q., 2014-01-23), 2014 QCCQ 443, SOQUIJ AZ-51038821, 2014EXP-656, J.E. 2014-339; (C.A., 2014-03-19), 2014 QCCA 566, SOQUIJ AZ-51056350.

Le texte intégral de la décision est disponible ici

Summaries Sunday: Maritime Law Book


Summaries of selected recent cases are provided each week to Slaw by Maritime Law Book. Every Sunday we present a precis of the latest summaries, a fuller version of which can be found on MLB-Slaw Selected Case Summaries at cases.slaw.ca.

This week’s summaries concern:
Civil Rights / Constitutional Law / Statutes / Trade Regulation

R. v. P.C. 2014 ONCA 577
Civil Rights
Summary: The accused, a young offender at the time, was tried by a judge and jury and found guilty of manslaughter. The accused wished to appeal his conviction, but lacked the resources to retain counsel. He filed an appeal and applied to have state funded counsel appointed (Criminal Code, s. 684(1)). Section 684(1) gave a judge the discretion to appoint counsel for an indigent accused on appeal, “where it appears desirable in the interests of justice”. The motions …

Ratiopharm Inc. v. Canada (Attorney General) 2014 FC 502
Constitutional Law – Statutes – Trade Regulation
Summary: Ratiopharm Inc. sold generic drugs in Canada, including ratio-salbutamol HFA (“ratio HFA”), the generic equivalent of Ventolin HFA, a product manufactured by GlaxoSmithKline Inc. (GSK). Ratiopharm sold ratio HFA to pharmacies after having purchased it under contract from GSK. The two products competed against one another and other similar products in the Canadian market. Under the contract with Ratiopharm, GSK retained all patent rights to its product. The Patented Medicines Prices Review Board found …

Cyberbullying, Social Media Networks and Sentencing: The Alberta Court of Appeal Strikes a Hard Blow in R v Mackie

How should the courts determine appropriate sentences for online predators who victimize vulnerable children through various forms of cyberbullying? This was the question put squarely to the Alberta Court of Appeal in R v Mackie 2014 ABCA 221.

Background

Statistics Canada reported this summer that the traditional crime rate in Canada fell 8% from 2012 to 2013, reaching its lowest level since 1969. But this general decline in crime rates overshadows a disturbing countertrend – the rise in online crimes against children.

Crimes constituting sexual violations against children increased 6% from 2012. In particular, the crime of using a computer to lure a child for the purpose of facilitating a sexual offence increased a staggering 30% over the course of a year. Sexual exploitation increased 11%. Child pornography offences, now almost always conducted via online means, were also up 21% since 2012 and an almost incomprehensible 163% since 2003.

These prosecutions have become increasingly complicated as their perpetrators attempt to hide behind the cloak of online anonymity and the victims may exist anywhere in the world. Yet the victims – defenceless children – are our most vulnerable members and often the least able to seek help and protection when they most need it. These crimes truly do strike at the core of our collective well-being and shared values.

Facts of R v Mackie

MacKie pleaded guilty to 39 offences, all of which involved crimes against children. They were generally described by the Court of Appeal as “cyberbullying and online sexual exploitation” and continued over the course of four years. Mackie, then in his early 20s, used his knowledge of computers to create fake internet profiles to communicate with 21 children between the ages of 11 and 16. He contacted them through popular online social networking sites by pretending to be of a similar age.

He obtained their contact information. He asked very personal, often sexualized questions of them. He cajoled them to provide sexually explicit or suggestive photographs, and then threatened to distribute those photographs to their friends and family if they did not provide even more revealing photos and videos. He ultimately took control of their online accounts, posted their photographs online, and contacted their friends and siblings.

These victims were described as being “completely overwhelmed”, feeling “terrified and trapped”, and were “greatly traumatized.” At least one even considered suicide to escape the online hell Mackie had created for him. The torment was found to have had a lasting impact on the children: see paras 4-8.

An Impressive Sentence

The trial judge imposed a global sentence of 11 years in a penitentiary. Mackie had no prior criminal record. But he expressed little remorse for his actions and stated he enjoyed the “thrill of the hunt”: see para 9.

The Court of Appeal upheld the sentence. Noting he was nothing short of a “cruel predator of children”, the Court explained that we have, as a society, come to better appreciate the “full magnitude of the impact such crimes have on children” and that they can lead to children taking their own lives: see para 17.

At paragraph 18, the Court concluded forcefully and clearly:

Society cannot tolerate such offences, and we are determined to do what we can protect children from cyberbullying and exploitation. In cases such as that before us, we must resort to imprisonment, emphasizing the sentencing objectives of punishment, punishment and deterrence.

The Alberta Court of Appeal’s comments and acknowledgment of the pervasive evil of cyberbullying are welcome and desperately needed from an appellate court. We can and must “better appreciate” the horrors of such crimes, and collectively awaken to the reality that online abuse carries with it often unimaginable, lasting harm.

Echoes of R v McMillan

Last year, in a very different context, Menzies J. of the Manitoba Court of Queen’s Bench noted in R v McMillan 2013 MBQB 229 that the effects of bullying, both online and in person, must be acknowledged by the courts when fashioning an appropriate sentence. In that case, it was the accused who had been the victim of online bullying and who committed his crimes as an act of retaliation against one of his tormentors. His Honour’s words on the nature and effect of bullying are worth repeating in light of the powerful precedent set by the Alberta Court of Appeal in Mackie:

41 It is conceded by the Crown that the accused was subjected a prolonged period of bullying in his home community. The bullying involved taunts, physical confrontations, graffiti in public locations and postings on Facebook. T.M. was one of the people who victimized the accused.

42 The effects of bullying have just now begun to attract the attention of public authorities. The suicide of Rehtaeh Parsons in Nova Scotia has underlined the devastating effects of bullying on the target of such abuse. Bullying can cause severe depression to the victim. The victim may withdraw from society and in severe cases, attempt or succeed at suicide.

The effects of this bullying are “impossible to ignore” and provide a context and background that must be considered when fashioning an appropriate sentence: see para. 46.

___________

Brock Jones is Crown Counsel, Crown Law Criminal; Adjunct Professor, Faculty of Law, University of Toronto. The views expressed in this article are those of the author and do not represent those of the Ministry of the Attorney General nor the University of Toronto.

 

The Friday Fillip: Venom and Vanity


Here’s an incongruity — at least it seems so to me.

The world’s most expensive substance is used in one of the most trivial ways possible.

The substance? Botulinum toxin, commonly known as Botox. The BBC says it costs £100 trillion (C$182 trillion) per kilo — yes, that’s trillion. And people buy it to inject into their faces so that (they think) we won’t think they’re as old as they really are. Moreover, a third branch in the incongruity (if such things can have a tertium quid) is the fact that gram for gram it’s the deadliest substance known to us. And people buy it to inject into their faces so that (they think) we won’t think they’re as old as they really are.

Of course, Botox has valuable medical uses as well, but it’s the vanity trade that brings in the greatest share of the roughly $2,000,000,000.00 in revenue that Allergan makes from Botox alone.

In a way there’s nothing new about this mix of vanity and venom. Arsenic, for example, has long been used to enhance the presentation of self, and can be found today in some eyeliner, apparently, even though it, too, is a deadly poison. (For an interesting example see an article on the Styrian toxicophagi — the arsenic eaters of Austria.) There’s a measure for these things — for the lethality of a particular substance. It’s called the “median lethal dose” or LD50; and, as I understand it, it’s a statistical measure of the dose required to kill 50% of the subject population over a certain period of time, and it’s expressed as the mass of the substance against the mass of the ingesting body, typically g/kg. Sugar, for example, has an LD50 of 29.7, i.e. lethal at just under 30 grams per kilogram of body mass for half the group ingesting the dosage; caffeine comes in at 0.192; and arsenic at around 0.013. (Botox, as I’ve said, is at the very bottom — or top, depending on how you see this — at 1 nanogram/kilogram.) A toxicity scale of various substances is available on Wikipedia.

For a rather more diffuse illustration of this sort of incongruity, let me introduce you to C3 and C4 plants. It seems that photosynthesis, that marvel of solar consumption, is rather inefficient. For one thing, green is the wrong colour for plants if they want to suck up as much light as possible: black should have been the old normal. Chugging along on green, plants will convert only 0.2% of available solar energy into a product of photosynthesis — typically carbon. Most plants are classified as C3, fixing carbon in a particular way. However, some relatively few plants are of the C4 variety, fixing carbon in a slightly different and marginally more efficient way. Two of the commonest C4 plants are sugar cane and corn. Sugar cane, for example, can turn as much as 8% of available solar radiation into chemicals.

Sugar and corn are two of the most consumed agricultural products in North America, if not the two most consumed. And, it must be said, efficient though these plants may be (or because they’re efficient) they are two of the most socially dangerous products that are grown, sugar — from cane and from corn — being the latest and greatest dietary villain, and corn the oppressively ubiquitous monoculture. (See, e.g., the film documentary King Corn, available online.)

Most valuable, most consumed, most deadly, most profitable . . . . life at the extremes.

Parlez-Vous Français? How to Practice Your French, and Other Foreign Language Immersion Tips


I’ve been trying to prepare for the IFLA conference in Lyon, France for months. IFLA is the International Federation of Library Associations and Institutions and I don’t recall ever attending one of their meetings. But I thought this year, it’s in France, and in Lyon. My first name is Lyonette – it’s fate! And the IFLA Law Libraries Section has been offering great sessions on authentication of and access to digital legal information (such as official gazettes) in various regions of the world. I could look forward to immersing myself in French culture, speaking French, and learning about new developments in initiatives to provide free public access to foreign laws. Looking over the Programme, it looks like some of the sessions might be in French. While IFLA provides for simultaneous interpretation from French to English, I’d like to directly experience the speakers with no language filter. So I’m been thinking of ways to brush up on and practice listening to and speaking French. I also ended up thinking of foreign language immersion tools and techniques generally.

Our library subscribes to Mango Languages, so that was the first tool I thought of trying. Mango is “an online language-learning system that can help you learn languages like Spanish, French, Japanese, Brazilian Portuguese, German, Mandarin Chinese, Greek, Italian and more.” I had tried learning Azerbaijani with Mango, but I found that Mango is too interactive for me. You have to respond, click on things, repeat phrases. I can’t practice speaking French using Mango while I’m doing some other work activity. I have to set aside time to pay attention.

The library also has multimedia sets like Colloquial Vietnamese: A Complete Language Course with audiocassettes to listen to. Locating a cassette player these days is hard. And there’s no such course for French.

The students at my law school have started language practice tables – French, Portuguese, and Spanish “Parlez” chats, but, like with the knitting group they have, I want to participate when I can do it well.

I’ve found French law-related audio/video to listen to on the web like the Conseil constitutionnel’s audiences publiques. The Netherlands Supreme Court (Hoge Raad) also has video archives to practice listening to legal Dutch. I looked for Claire Germain’s French Law in Action videos of criminal trials (Username: frenchtrials; Password: greffier), but they were 404. I’ve listened to lectures and conferences on the YouTube in French on law on film, Michel Foucault, and the like. I have also considered watching French movies that might have law-related themes, but quickly decided it was more fun to watch movies like “Jules et Jim” and “Les vacances de Monsieur Hulot.”

I followed French-language Internet radio broadcasts of the Tour de France for a while. I tried watching some of my favorite English-language movies with the French-language setting on (without the French subtitles), but I miss some things. And it did cross my mind that the vocabulary I might pick up from “Finding Nemo” in French might not be that helpful at a library conference! While I’m sure I’m bettering my French, my attempts at polishing up my French have been more dabbling than immersion. I pick up ideas here and there, like using Wiktionary to learn pronunciation.

I have had more success with Spanish. My next trip is to Buenos Aires, Argentina for the International Association of Law Libraries (IALL) annual course on international law and legal information. I’ve been practicing speaking Spanish every day with law library staff here at work. And it’s easy to catch fútbol or a telenovela on TV and immerse myself in Spanish.

I recently wondered what tips my colleagues had for foreign language immersion for short trips abroad or conferences. My French lit colleague had these helpful suggestions:

  • Speak with the participants [at the IFLA conference in Lyon] – many of whom will come from francophone nations outside of the Hexagone.
  • I read French, Spanish, Italian (and a pinch of German) online – journals, blogs, amusing articles.
  • I also ‘friend’ French, Spanish, Italian and German language-learning sites on Facebook, as well as interesting sites such as cultural institutions.
  • I read French books. When I was learning French I would read books translated into French from English when I knew the English very well.
  • I listen to several French podcasts.
  • Music is a great immersion tool! Pick your favorite kind and listen to it – many times you can find the lyrics online if you want to follow along. I know Carmen, much of Georges Brassens and Edith Piaf by heart at this point. Repeated listening means that you pick up a little more every time.

I asked on the INT-LAW listserv and here are some of the responses I received:

  • Use apps/tools like Duolingo (highly recommended by several list members), Memrise, Omniglot Intro to Language (includes video lessons), QuickFix (BBC essential phrases in 40 languages), Rocket Languages.
  • Mango (a Canadian colleague says: “Here in Toronto the wonderful Toronto Public Library offers a free online course called “Mango Language Learning”. All you need is a library card, computer etc. and off you go”).
  • Listen to podcasts, radio, music.
  • Watch TV, movies.
  • Practice with friends, join meet-up groups to practice with native speakers.
  • Join a city foreign language association like Alliance Française, Goethe Institut, Instituto Cervantes – they offer classes, free movies, books, dinners with native speakers.
  • Date someone from the country!
  • Move to a foreign country!

What do y’all do to practice speaking a foreign language? And if you’re off to put your practice to use, bon voyage!

American Association of Law Libraries Report on Access to Justice

The debate about how to improve access to justice most often discusses what lawyers and court institutions can do.

There is another potential player: law libraries. In Canada, a few law libraries offer legal information services to the general public. But there does not seem to be much coordination of these efforts or much analysis of the contributions law libraries can and should be making.

South of the border, the attempt to address this question appears to have been more ambitious, though there is still a long way to go.

For example, the American Association of Law Libraries recently released a report of a special committee it formed on Law Libraries and Access to Justice.

It describes how law libraries can foster greater access to justice in society:

“From the earliest days of their profession, law librarians have facilitated access to legal information. At first, their services were extended primarily to judges, legislators, and attorneys, but in the last part of the 20th century, the public came to rely on public law librarians to locate information to assist them in handling their own cases, without the assistance of counsel. The number of self-represented litigants accessing the courts continues to grow rapidly. For many self-represented litigants, who may not have civil legal aid available to them, attorneys’ fees can be a burdensome expense. Still, they may find the legal system to be highly complex and often more favorable to those parties with sufficient resources, such as the benefit of counsel. In spite of this, the number of self-represented litigants accessing the courts is rapidly growing. ”

“The Access to Justice movement challenges society to seek ways to educate citizens about the law and legal procedure, expand the appearance of counsel to those most in need, and provide information and programs for those handling their own cases. By providing a wide array of services, the movement hopes to allow disadvantaged and self-represented litigants to gain a more equitable foothold when resolving disputes with those parties who bear greater resources.”

“As the principal providers of legal information, law libraries are an indispensable part of the services that can be provided to those with legal needs. Law libraries make ‘The Law’ available, and law librarians serve as guides to finding the most relevant legal information. Some may think that only court librarians can play a role in fostering access to justice. While it is true that they have such a core responsibility, law school and private firm libraries, by fostering the rule of law, can also be leaders in promoting access to justice in their communities.”

“The goal of this White Paper is to outline in detail the many valuable ways in which law libraries can take an active part in improving access to justice. It should serve as an important guide for stakeholders in the Access to Justice community as they consider the implementation of services to benefit those in need.”

 

 

Scotland’s Question of Clarity

There is much that is familiar in watching how Scotland’s vote will unfold today.

Fuelling the sense of déjà vu for Canadians is the arc of the story. It begins with the No forces way ahead in the polls, until suddenly both camps are neck and neck. Panic takes over in the “nation’s” capital, followed by improvisation, vague promises of more devolved powers, and not-so-subtle threats about what it will all mean for the shared currency and the breakaway state’s place in the larger common market (their EU to our NAFTA).

And yet, in spite of all the similarities, something about this vote is different from our own past experience: Its finality. The question posed to voters today is clear: “Do you agree that Scotland should be an independent country?” Most people (sovereignist leaders included) would struggle mightily to recall with any accuracy the exact formulation of the 1995 Referendum question — something about offering a new economic and political partnership to the rest of Canada.

A Supreme Court Reference and Clarity Act later, the Scottish way is touted in Canada today as responsible break-up politics.

But is it really?

A yes vote in ’95 would have been dramatic, unquestionably. But it would not have carried the same irrevocability that Scotland’s vote today carries. Instead it would have held out the promise — fragile perhaps — of further indecision for a few days, weeks, or months, before settling the matter once and for all. Read Chantal Hébert and Jean Lapierre’s recent study into what key players from the ’95 referendum had in mind if the vote had gone the other way. Nobody, save Parizeau and possibly Chrétien, seemed to have a plan.

Might the ensuing pause given us time to consider the enormity of what was happening? We now know that there was dissension in the sovereignist ranks, but Quebec’s most popular figure at the time, Lucien Bouchard, indicated to Hébert and Lapierre that he would have pushed for a second referendum to ratify the results of negotiations following a Yes vote.

Scottish voters face a much starker choice. And though there is something to be said for clarity, the trouble with Scotland’s independence question is that it betrays unconcern for the inwardly, complex, and conflicting reasons why people vote the way they do.

If you don’t believe me, consider this: If you’re 16, and a resident who is a citizen of a qualifying state in the Commonwealth, you can vote. So a Quebecer with no ties to Scotland, other than the fact that he or she is temporarily living there, can vote yes to end Britain as we know it. I know of at least one lucky nostalgic who plans on joining in on the fun.

I’m not suggesting that non-Scottish voters will ultimately tip the balance one way or the other. And to be fair, there is an entire diaspora of Scots living abroad who will not have a chance to affirm with their ballot their Britishness or their tartan identity.

But as Tyler Cowen aptly remarks, “creative ambiguity“ is the stuff on which many political unions rest, Canada’s and Britain’s included.

Erasing that creative ambiguity with a clear-cut question can produce a pretty messy state of affairs. More than a few observers are already wondering whether England, post-secession and more naturally leaning Tory, will withdraw from another political union — the one it has with the EU — while Scotland scrambles to remain a member and adopt the Euro.

Ever since the Secession Reference in 1998, Canadians have been in the habit of comforting themselves in believing that “a clear majority vote in Quebec on a clear question in favour of secession” is a near impossibility. The close polling in Scotland is proof that this is nonsense. It’s also a reminder that clarity is far more than a reasonable legal prescription; it is what you’re left with when the dreaming eye opens.

Employee Constructively Dismissed Because of a Temporary Layoff

Can a temporary layoff, in the absence of an express or implied contractual term authorizing such action during the term of employment, constitute a constructive dismissal? Ontario’s Small Claims Court recently answered this question in the case of Janice Wiens v. Davert Tools Inc., 2014 CanLII 47234.

Facts of the case

The employer, Davert Tools Inc. makes prototype vehicles for the automotive industry.

The 55-year-old employee, Janice Wiens, worked for Davert in a number of roles for almost 10 years before the events that led to her termination.

Davert was hit hard by the financial crisis in 2008 and implemented the federal government’s work-share program to reduce costs. From July 2009 to mid-2010, all employees agreed to work reduced hours and were entitled to collect employment insurance for the days not worked.

Subsequently, Wiens was temporarily laid off from the end of November 2010 until January 2011. She was not happy about it, but she never formally objected. She continued to receive benefits throughout the layoff. Wiens was laid off again on May 6, 2011. A record of employment was issued with a date of recall as unknown.

On August 17, 2011, the employer contacted Wiens to see if she was available for some work. She came into the office on August 18, and discussed the possibility of returning to full-time work with the company’s president. He gave her no assurance, and she considered herself terminated since her temporary layoff had lasted longer than permitted under the Employment Standards Act.

On August 19, Wiens received a letter from the employer saying that she quit her employment as of August 18 and that she was not entitled to termination pay because her benefits were continued during the temporary layoff. The employer also issued a record of employment stating that she quit her employment on August 18 after she was recalled on August 17.

Wiens applied for Employment Insurance benefits stating, “I had informed them I was terminated not quit.” Her application also stated, “Terminated per ESA after 13 wks—Employer sent an ROE stating I quit.”

Wiens also filed a wrongful dismissal claim against the employer, arguing that she was constructively dismissed after being temporarily laid off but then recalled on a day-to-day basis for an unknown period of time that was longer than the allowed 13 weeks.

The employer argued that the employee was recalled from layoff within the appropriate time period.

Decision

Did Wiens quit her employment with Davert Tools or was she constructively dismissed? If she was dismissed, what amounts to reasonable pay in lieu of notice?

The court established the following.

On August 17, 2011, Davert recalled Wiens from a temporary layoff that began May 6. The employer recalled Wiens to work on a day-to-day basis for an indefinite period. The court decided it was likely that the layoff would have lasted more than 13 weeks.

To prove constructive dismissal, Wiens had to demonstrate that Davert had breached a fundamental term of her employment agreement and that she had no intention of resigning. The court found the evidence and facts did not show she intended to resign. A resignation must be clear and unequivocal and this was not the case here.

Although there was no formal contract between the parties, the evidence shows that layoffs are common in the automotive industry, so the court found that a temporary layoff is implied in the contract. However, the implied term of the employee’s contract does not include an indefinite layoff. In this case, it was clear the parties were dealing with an indefinite period of layoff in violation of the Employment Standards Act provision.

Based on Wiens’s evidence and testimony, she was able to show the court that they were not dealing with a temporary layoff implied in the contract but an indefinite layoff, which amounted to a fundamental breach of the contract. Thus the employee was right to consider herself constructively dismissed. Wiens appropriately rejected the change in her employment agreement within a reasonable time and sued her employer for damages, per Wronko.

As a result, the employer had to pay the employee notice of termination. The court found the appropriate period of reasonable notice was eight and one half months pay in lieu of notice—more than $36,000.

However, the court agreed with the employer that Wiens should have mitigated her losses by taking whatever workdays were offered to her, and reduced the award by 20 percent, leaving a net amount of $29,466. In addition, because small claims are limited to $25,000, that was the final amount of the award.

Conclusion

An employee is on temporary layoff when an employer cuts back or stops the employee’s work when there is not enough work to do, without ending the employee’s employment. As can be seen from this case, employers need to be very careful about how they handle temporary layoffs.

Section 56 (2) of the Employment Standards Act defines a temporary layoff as being:

a) Not more than 13 weeks in any period of 20 consecutive weeks, or
b) More than 13 weeks in any period of 20 consecutive weeks, but less than 35 weeks of layoff in any period of 52 weeks, where:
     i) The employee continues to receive substantial payments from the employer,
     or
     ii) The employer continues to make payments for the benefit of the employee under a legitimate retirement or pension plan, or a legitimate group or employee insurance plan,
     or
     iii) The employee receives supplementary unemployment benefits, or
     iv) The employee would be entitled to receive supplementary unemployment benefits but isn’t receiving them because the employee is employed elsewhere,
     or
     v) The employer recalls the employee within the time frame approved by the director of employment standards, or
     vi) The employer recalls the employee within the time frame set out in an agreement with an employee who is not represented by a trade union. Or,

c) A layoff longer than a layoff described in (b) where the employer recalls an employee who is represented by a trade union within the time set out in an agreement between the union and the employer.

Note: An employer may put an employee on a temporary layoff without specifying a date on which the employee will be recalled to work.

An employee is considered on temporary layoff for a week if in a week, the employee receives less than one-half of the amount the employee would earn at the employee’s regular rate in a regular (non-overtime) workweek, and that week is not an excluded week.

An “excluded week” is defined in the Act to mean a week during which, for one or more days, the employee is not able to work, is not available for work, is subject to a disciplinary suspension, or is not provided with work because of a strike or lockout occurring at the employee’s place of employment or elsewhere.

The Act creates a distinction between a temporary layoff of an employee who has a regular workweek and an employee who does not have a regular workweek.

For an employee who has a regular workweek, excluded weeks are counted as part of the period of 20 or 52 weeks in paragraphs (a) and (b) above.

For an employee without a regular workweek, an employee is considered to be temporarily laid off for a period longer than the period of a temporary layoff if for more than 13 weeks in any period of 20 consecutive weeks the employee earns less than one-half the average amount the employee earned per week in the period of 12 consecutive weeks that preceded the 20-week period. In this case:

(a) Excluded weeks are not counted as part of the 13 or more weeks but are counted as part of the 20-week period; and
(b) If the 12-week period contains an excluded week, the average amount earned is calculated based on the earnings in weeks that were not excluded.

These same rules apply to the 35-week and 52-week periods.

If an employee is temporarily laid off for a period longer than a temporary layoff as set out above, the employer is considered to have terminated the employee’s employment. In general, the employee will then be entitled to termination pay in lieu of notice.

It is important for non-unionized employers to know that it is possible for a temporary layoff without a recall date, or perhaps even with a recall date, to be construed as constructive dismissal, because it may be considered a unilateral change to the employment contract. Thus, a temporary layoff could be found by a court to go to the root of the employment relationship, entitling the employee to treat the employment contract as breached by the employer. The court makes this determination based on the individual circumstances of each case. This means that an employer could be on the hook for paying damages for breach of the employment contract.

Not only should the possibility of a temporary layoff be stipulated expressly in the employment contract, but time requirements must be respected. If the employee’s temporary layoff becomes an indefinitely layoff, this is a termination.

Where the employer has a written policy communicating to employees that temporary layoffs are possible, such a right may be inferred. The policy would have to be communicated to employees well in advance of the temporary layoff so it does not appear that the policy was drafted in contemplation of an impending temporary layoff measure. How far in advance such a policy would have to be communicated would depend on the circumstances.

Intermediary Liability: Part 2 – Policy Questions


My previous column gave a number of examples of how governments, regulators and even spies focus on intermediaries to achieve what they want. The intermediaries used may or may not be online themselves, though most of the examples involved Internet Service Providers and web hosting services.

This column reviews the policy questions, though without attempting any definitive answers. Feel free to propose your own answers in the Comments, or raise further questions, or improve my analysis.

Approaches to liability

Three major approaches are taken to the role of intermediaries, as we saw in the previous column (without so classifying them):

  • Use the intermediaries to get the real names and addresses (or other information) of the people who are carrying out the targeted activity, usually based on known IP addresses obtained from other sources.
  • Make the intermediaries enforce the rights of the plaintiffs or state against the targeted people, whether by taking down offending content or by blocking financial transactions, or possibly by preventing access to online services completely.
  • Make the intermediaries liable themselves for the consequences of the targeted activity, so they will have to indemnify the plaintiffs for their losses. We have not dealt with this direct liability issue much so far, except for the consequences of linking in defamation actions.

One should note that these approaches may be taken privately, i.e. through private rights of action or in some cases even private uses of technological measures that do not depend on state assistance. They may also originate in state action, either to support private rights or to allow state agents (law enforcement officials, tax collectors, and so on) to do their business.

Some principles

A number of conflicting principles apply to the decision whether a particular approach to intermediary liability might be appropriate for particular purposes.

  1. Effectiveness

The first question, surely, is whether the measure will work. Will it produce names? Will it end infringement or defamation or whatever perceived mischief is targeted? If it is likely to affect the wrong people – e.g. people associated with a particular IP address who had nothing to do with the targeted activity – then governments may not with to expend public resources on it, including the courts. Private parties may also decide the return on their investment is not good enough to sustain the measure.

Does the use of intermediaries allow for any subtlety of effect, or is it just yes or no for the ‘regulated’ activity? The Federal Court in the Teksavvy case (discussed below) kept jurisdiction over the conduct of the plaintiff as it used the information obtained from the intermediary. The Copyright Act‘s notice-and-notice provision at least allows the poster of the content to make submissions, and perhaps avoid unduly restrictive takedowns. The US had a very hard time writing regulations to govern the banks’ duty to refuse to process Internet gaming transactions.

It is not an argument against online enforcement, including through intermediaries, that such enforcement is much more effective than offline efforts. Fishing with a net rather than a line is not objectionable in principle. One may debate, perhaps, whether a point is reached when mass enforcement methods have ‘ecological’ impacts on the legal world. Are our traditional legal rules acceptable because enforcement is not 100% effective? Security experts say we would not want to live in a completely secure world, because it would be a prison. Similarly, some of the concern about technical protection measures for copyright arises because of their indiscriminate effect in an area where some careful distinctions are necessary. Let us look at some of the other factors that may help evaluate intermediary liability.

  1. Cost

Even if the measure touching the intermediaries is effective in action, is it cost-effective? Are there other means to get to the target that would be less costly for the party or the government. Ideally such a calculation would include the costs to the intermediaries of having to take the actions requested or required: keep communications data for long periods, make the data available to law enforcement or to civil parties, give notice to alleged infringers, interfere with banking transactions (or sort out the illicit from the routine transactions in the first place), even pay damages for not stopping harm to others.

Some have argued that intermediaries are ‘low cost avoiders’ of the behaviour sought to be controlled, i.e. they are the cheapest route to regulatory effect. That may be true in some cases, though perhaps hard to demonstrate all the time. However, the desirability of targeting the intermediaries is not just a matter of cost, as discussed below. A ‘law and economics’ approach does not have all the answers.

Some people have suggested that if intermediaries are going to be requires to store information and make it available, the state should pay them to do so, since the costs are not being incurred for a business purpose. Not surprisingly, few governments have rushed forward to volunteer to pay.

The Copyright Act (s. 41.26, in force in January 2015) on its face allows intermediaries to charge a fee for giving the notice in the notice-and-notice system, but only if the Minister makes a regulation setting a maximum fee. The notice about the coming-into-force of that section says there will be no regulation at this time, which means no fee. The formal order mentions no regulation either.

The cost calculation will not always be easy. It is arguable that it is worth paying something – or imposing some costs – to achieve the intangible values of a well-ordered society where rights are respected.

  1. Impact on competing values

Even if hitting the intermediaries is effective and cheap, there may be reasons to discourage it. Other values may be more important. The main ones mentioned in this context are privacy, freedom of expression and ‘user rights’ in copyright.

Turning over the names of subscribers of an ISP or customers of a web hosting service can be an invasion of their privacy. The previous column noted the Spencer decision of the Supreme Court of Canada that discussed how intrusive such information can be and how extensive inferences can be made from a small amount of browsing data. It also mentioned the Voltage Pictures v John Doe decision of the Federal Court (the Teksavvy case, after the name of the ISP), giving a copyright content owner a limited right to customer data but restricting the uses that could be made of it and subjecting those uses to court supervision. (See for example paragraph 9 of the order, at page 58 of the decision.)

The European Union in 2006 enacted a regulation to require ISPs to retain customer information for up to two years, for the use of law enforcement authorities. This rule was said to be required to combat terrorism. Recently the Court of Justice of the EU held the regulation invalid as putting the personal information of subscribers at too much risk, although the regulation contained some privacy protections. The English government (among others) continues to require such retention, going so far as to adopt updated rules, though this has been controversial. A court challenge is contemplated.

In holding that the mere linking to defamatory material did not constitute defamation, the Supreme Court of Canada in Crookes v Newton noted the threat to freedom of expression in spreading liability too broadly.

The Court of Justice of the European Union in the Google ‘right to be forgotten’ decision mentioned in the previous column has been widely criticized as unduly restricting Google’s freedom of expression. Reporting of search results as it sees fit is considered to be a form of expression. It is an interesting argument, given that Google has long insisted that it is not ‘media’. (It may be noted that the Court did not refer to a right to be forgotten; that term has been used in popular discussion of the decision. The Court disposed of the case under the existing provisions of the 1995 EU Privacy Directive.)

The decision does not require taking down the information, just the links between the person’s name and the information. So other methods of referring to it can still turn it up. Practical criticism abounds, however. For example, the House of Lords recently said a right to be forgotten was unworkable.

In any event, the right of researchers, and indeed the general public, to have access to information that may be important for numerous reasons, is an important countervailing value to the privacy intended to be protected by the ruling.

So ‘privacy’ as a value can go both ways, as a reason not to attack the intermediaries or as a reason to focus on them. There is no escaping the need to make difficult judgments.

Using intermediaries to put pressure web posters on copyright infringement can lead to undue challenges for the posters. The rights to reproduce copyright work can be complex, involving study and criticism and fair use. The intermediaries have little incentive to stand up for their customers or to restrict the demands put on them – it’s not their fight. This is particularly true in a US-style ‘notice and takedown’ system, where any demand to a hosting service may result in the suppression of the targeted material – whether or not there is a good defence. The poster is put at a disdvantage without any adjudication, and getting to adjudication is likely to be slow and expensive.

  1. Proportionality

The difficult judgments to be made are essentially those about proportionality. Are the costs worth incurring to achieve the benefits? How can one weigh the value of privacy or free expression?

It is fair to consider the seriousness of the targeted activities compared to the cost and loss caused by the effects of the policy on intermediaries. This is the kind of balancing that then Justice Minister Vic Toews was suggesting when he said that people who did not support his bill to broaden law enforcement access to ISP subscriber data were in effect taking the side of child pornographers. Public reaction to this suggestion was strongly negative, and the bill was withdrawn, at least in that form. Again, there is no escaping the need to evaluate, and the public evaluated the competing threats differently from the minister.

As noted in the previous column, some jurisdictions, notably England and France, have had laws that require or permit an Internet intermediary to cut a subscriber off from the Internet if the subscriber infringes copyright three times. Such laws have been widely criticized as disproportionately harsh. The French law, known as HADOPI from the acronym for its enforcement authority, was repealed in 2013. Nonetheless the agency seems to carry on and is asking for greater powers. The UK’s Digital Economy Act, 2010, sets up a kind of notice-and-notice system. It also allows the government to order the blocking of infringing websites, but the government has said it will not use that power. A Parliamentary review says that barring individual users from the Internet would take additional legislation.

In recent years, access to the Internet has been recognized as an essential feature of contemporary life by a German court and as a human right by the United Nations Human Rights Council report. While human rights are not absolute, if the UN argument catches on, it may be hard to find that any legal rule that deprives someone of the connection is proportionate to the economic or reputational rights that the rule might be designed to promote.

In the mid-1990s, the United States Congress made a similar judgment about the comparative benefit of free expression and liability, though it probably aimed to protect electronic commerce more than human rights. In any event, Congress chose to do this by shielding Internet intermediaries from liability. Communications Decency Act, part of the Telecommunications Act, 1996, immunizes interactive computer service providers from liability from any content they carry, so long as they did not participate in its creation.

The effect of s. 230 of the CDA has been to deny a remedy to some people in what would appear to be worthy causes: a person whose phone number was published online with the false statement that he was a child abuser, leading to a lot of harassment; an attack on a ‘revenge porn’ site that published embarrassing pictures of people’s ex-lovers; attacks on malicious reviewers of services like hotels or restaurants, often in the pay of rival services. If a remedy in such cases is not available against the intermediaries, it is essentially not available at all. S. 230 is litigated frequently, but the service provider almost always wins.

In short, judgments on the ‘proportional’ balance of protections can also be difficult in borderline cases.

  1. Media neutrality

The basic thesis of imposing liability on intermediaries, or duties to influence their customers, is that the government, regulators or the legal system (through the courts) sees the customers doing a ‘bad’ thing, something prohibited or discouraged by law, and the system acts to take away the tool by which the person does it.

It is a good general principle for devising rules of law applicable to Internet activities that they should not differ from those applicable to the offline world unless they must in order to deal with particularities of the Net and its transactions. This is ‘media neutrality’ – the law works in the same way in any medium of communications.

Is there an offline equivalent of intermediary liability? If not, is it sufficient reason to depart from neutrality because finding and persuading intermediaries is just so much easier there than the target offenders? Is the convenience enough? Or does the ease of Internet publication and the resulting volume of communications from all sources require a much more ‘convenient’ response than the slower, less voluminous offline communications that are handled by the traditional law that provided remedies against the actual wrongdoers?

The defamation defence of ‘innocent dissemination’ discussed in the previous column is needed because anyone in the publication and distribution chain may be held to have ‘published’ the offending text. Thus offline intermediaries in the publishing process, like printers, booksellers and libraries, can be targeted, though they are protected against liability if they have no knowledge of the defamatory material. The same principles work online – but the protection can be ended by giving them notice of the alleged defamation.

Copyright law has similar principles, by which notice of infringement given to a broadcaster or publisher will provide a foundation for liability if the transmission or publication continue.

For other kinds of regulation, targeting intermediaries is not novel in the offline world. Examples were given in the previous article about tax collection – or at least information-gathering about tax avoidance – through transport companies. It could be argued that the way retail sales tax is collected in Canada uses intermediaries, since the vendors collect and remit the tax, but legally it is the purchasers who pay it (so it will be a ‘direct tax’ for constitutional reasons, as well as for ease of administration.)

Law enforcement authorities have a long tradition of tapping phones and other physical communications media, subject to judicial supervision under law. Their access to digital information is an extension of this, and the debates focus not on the idea of access but its exercise and its limits in view of the nature of the media and the information available.

In sum, media neutrality is worth considering in designing a regulatory system, but each use of intermediaries will stand on its own analysis.

It is worth noting that media neutrality is not the same as technology neutrality, under which the law does not prescribe the specific technology to which legal consequences attach. That too is a desirable principle, especially in areas where technology is evolving quickly. Technology may create business models involving intermediaries that did not exist before, but the legal response should be as little specific as possible about how the technologies work.

  1. Legitimacy

At some point legal systems, and governments in legal systems, have to be seen to be doing what some degree of popular consensus considers ‘the right thing’. The system cannot be widely perceived as unjust for a long time. Such a situation leads to changes of government, if not revolution. This affects the need for balancing the rights at stake in imposing liability on intermediaries, as one does in determining many other aspects of the rule of law in a country.

The international element needs to be considered as well. Ron Deibert, a pioneer of Internet security in the interest of human rights, has pointed out that if countries perceived as liberal democracies allow, or even promote, excessive degrees of control of online conduct through intermediaries, how can they complain if repressive regimes do the same to their citizens? While the purported reasons are the same – national security, anti-piracy and other forms of crime – the notion of what constitutes illicit behaviour in those regimes may be much broader, and its sanctions much more severe, than what we find acceptable.

Deibert has described a ‘stewardship principle’ that would have liberal democracies conduct themselves in a publicly demonstrably responsible and restrained way, to set a good example. Will such moral suasion work in today’s Internet? It may be that voluntary restraint in the use of legal power is a useful guideline in some societies. We are less concerned in this column with international applications, but it is interesting to consider how it might work, and how that might be reflected in a purely domestic setting.

Conclusions

In the light of the competing values and interests that contribute to determinations of liability and the appropriate methods to impose it, purporting to ‘conclude’ anything would be risky. Nothing much can be concluded at this point. One may be able to draw out some elements of intermediary liability for further consideration.

As the classic Industry Canada study from 1997 put it, ‘The Cyberspace is not a no-law land‘. Legal relationships that exist offline also exist online. No one should expect immunity from legal consequences for online activity. Since one needs intermediaries to get online, it is no surprise that people who want to impose those legal consequences look to the intermediaries as a route to doing so.

That said, the law that applies online includes legal rights such as human rights, constitutional rights, privacy rights and others. Those rights may restrict some actors as they protect or empower others. It is important that the indirect application of legal liabilities through intermediaries does not undercut these other rights in the process, because intermediaries may be less able or even willing to assert them.

A key principle in all of this is proportionality, one that we are familiar with in the offline world as well. The courts have clearly begun the task of deciding where to draw the line. As the technology and technology-enabled activities evolve, the line will no doubt need to be redrawn frequently. Just where it goes for particular legal obligations will continue to be subject to debate.

In this context, is there a case to be made for legislation on intermediary liability? Should Canada have a counterpart to s. 230 of the Communications Decency Act? Is there a less radical way of achieving that end? If legislation is wanted, should it focus on areas of legal liability, say with different rules or possibilities for defamation, copyright, tax, criminal activity, and so on? Or does one get a better or more economical result with a law that touches the role of the communications service regardless of content?

And of course in Canada we would have to decide if such legislation would be a matter for federal or provincial jurisdiction. The answer might depend on whether the focus is on the medium or the message.

The discussion will no doubt continue. Feel free to participate, including in the comments here.