The Friday Fillip: Chickens in the Air

Around my house we sometimes ask “Do chickens anticipate?”. This is a roundabout way of saying “No way,” of course. It’s one of a number of chicken questions that aim at the same thing, another being “Do chickens have lips?”. Or “Do chickens fly?”. But the answer to that last is, surprisingly, yes. Which fact makes the intro to this fillip somewhat plausible.

flying_chickenIt’s a fillip of four puzzlers, brain teasers — simple-seeming questions that have difficult or surprising answers. And the first has to do with a truckload of chickens:

  1. A truck transporting live chickens is overweight and will have to pay a road surtax. But as the truck is about to roll onto the weigh scale the driver bangs on the cabin wall and causes all the chickens to fly up into the air. Will that cause the truck and contents to weigh less?A plethora of answers can be found in comments to the puzzle question on this New Scientist website.


  2. This one’s known as the Monty Hall problem, because of he was the host of a TV show that asked contestants to elect to open this or that door and possibly win a prize. Here’s the classic question as originally posed by Steve Selvin in 1975:

    Suppose you’re on a game show, and you’re given the choice of three doors: Behind one door is a car; behind the others, goats. You pick a door, say No. 1, and the host, who knows what’s behind the doors, opens another door, say No. 3, which has a goat. He then says to you, “Do you want to pick door No. 2?” Is it to your advantage to switch your choice?

    The answer, which is “yes,” is so counter intuitive that knowing the answer does nothing to relieve the puzzlement. It’s the explanations about probability that are important. And the best one I could find was this, from the BBC website.


  4. Here’s the setup to puzzler #3 from Roman Mars’ website 99% Invisible, which brings in body knowledge:

    If I asked you to close your eyes and mimic the action of using one of the simple human interfaces of everyday life, you could probably do it. Without having a button to push, you could close your eyes and pretend push a button, and that action would accurately reflect the action of pushing a real button[1]. The same goes for flipping a switch or turning a door knob. If you closed your eyes and faked the movement, it would sync up with its real world use.

    Now if I asked you to do the same with a car’s steering wheel, you’d think you’d be able to describe steering accurately and mime the correct movements with your hands in the air, but you’d be wrong. Very, very wrong. You’d probably kill a bunch of imaginary people.

    The explanation is in the transcript of a podcast on Mars’ site, as given by psychologist Steve Cloete.


  6. Number four is a classic — so much so that many of the statements of the problem are full of racist or otherwise objectionable language from an earlier time. The best version, then, is the one where the characters are a wolf, a goat, and some cabbages, originating in the eighth century. It goes like this:

    A traveller transporting a wolf, a goat, and some cabbages comes to a river that must be crossed by boat. The only boat available is one so small that it will cary only the traveller and one other object — either the cabbages, the goat, or the wolf. The difficulty, of course, is that left alone together, the wolf would eat the goat, and the goat would eat the cabbages. What is the minimum number of crossings the traveller must make in order to ferry all three objects safely to the far side of the river?

    The answer, along with some history and a whole host of complicated versions of the same puzzle idea, can be found on the Science News website.

Generation Flux & the T-Shaped Professional

Gartner recently downgraded their forecast for IT spend in 2014, and it caught my eye. According to Mr Lovelock, one of the reasons for this lowering of projection is how quickly we are moving to what he called, “The Third Age of IT”. Apparently 1980 to 2000 was the “IT Craftsmanship Age” where we were building all those (now legacy) systems and putting together our IT departments. And then from 2000 to the present is what’s being called the “IT Industrialization Age” where we’re currently focused on automating and efficiency. In the legal industry I’d say we’re still very much in the midst of this age, but at the same time getting swept up with ReInvent Law etc into the Third Age of IT. (As an aside, I wonder when the defining characteristic of the Third Age becomes clear enough that we can give it its own proper name.) This Third Age of IT is where “Technology isn’t serving an existing business, it’s dictating what a business is.”

Throughout these changing times, IT professionals have had to update their skillsets to meet the new challenges and stay relevant. Another forecast by Gartner in 2005 for example, had predicted that by 2010 the traditional IT functions would break down into four distinct domains of expertise:

- Technology infrastructure and services

- Information design and management

- Process design and management

- Relationship and sourcing management

To keep up with these changes, Gartner predicted that IT professionals would need to not only keep on top of their specialist area as the technology itself constantly evolved, but also now need to maintain broad expertise in all of these domains too. That IT generalists (or “versatilists” as Gartner called them – hmm, I wonder why that phrase never took off?) would be the only ones to succeed in these changing times. “Versatilists are people whose numerous roles, assignments and experiences are enabling them to synthesise knowledge and context to find business value.”

But it’s not just IT professionals that need to adopt versatility to stay relevant. In 2012, a Fast Company special report was on “The Secrets of Generation Flux”. The by-line summed it up nicely with, “Modern business is pure chaos; but those who adapt will succeed”. The report interviewed seven representatives of this Generation Flux – all business leaders who are eager and excited by learning new skills, shifting their focus and changing careers. And those careers now average just four years – that’s 10 or 11 different jobs in a lifetime! Having spent way more than a weekend simply choosing tiles for my new bathroom, I hope they’ll last a lot longer than four years.

According to the article this widespread career volatility has been brought about largely due to mass layoffs, an increase in freelance and contract opportunities and the technical disruption of whole industries. More and more people are taking control of their own careers and skill development – not only to stay relevant but also to ensure they have back-up plans for if and when that job or industry implodes.

I think those of us in IT, KM and Marketing departments of law firms know this only too well. We branch out beyond our deep and narrow expertise in one particular area, to also have a breadth of knowledge along a range of disciplines and skills. Welcome to the T-shaped professional. IBM, McKinsey, BP, IDEO are all adapting the types of people they want to hire. They want people who can see outside their own narrow field of expertise; to see connections and opportunities across the organisation. Our chaotic world with its complex problems needs us to collaborate across disciplines to solve them.

I got caught up in this talk of T-model professionals back in 2004. UX designer Peter Boesma drew a T-model to describe information architecture as just one discipline of the broader practice of user experience. I was so excited by this idea that I drew my very own T-model to represent my hybrid practice of IA (at the time I was most disappointed that there was no ‘content strategy/management’ discipline to represent my dual passions of the time).


Now this model has been extended even further and is being used to guide the hiring of IA and UX professionals as a kind of competency framework and maturity model for the profession. Indeed, my own T-shape has also evolved to reflect new interests, domains and skills over the last 10 years.

And now it’s the lawyers’ turn to question their deep legal specialisms – their I-shape. Whilst every organisation needs a mix of I-shapes and T-shapes, Amani Smathers at ReInvent Law suggests that the 21st century lawyer should be T-shaped. Amani suggests six potential disciplines that lawyers should have some shallow but broad understanding about in addition to their deep legal expertise: design, e-discovery, analytics, technology, project management and business tools.

Right now lawyers rely on knowing who to call or who to outsource this to, rather than adding these skills/clubs to their own golf bag. And that approach is amazingly effective when we know at least a little about what other people know. At its simplest level it is enough to recognise there is a tax element to your deal and call in the tax expertise from elsewhere in the firm. This can also be effective at firms small enough that we know who to call; where we know all of our colleagues, and we know enough about their deep legal specialisms to call on them when we need them.

But our firms are getting bigger all the time and having a handle on exactly who knows what and to what degree is getting harder. In addition, when we’re designing solutions to business problems we may need more than just legal clubs in our golf bag. If you don’t know anything about data analytics how will you know when to ask the resident expert about applying it to your legal solution? Or if we don’t know how design thinking can foster the creativity needed to deliver more innovative solutions, how will you know when to inject some creative problem-solving into the process?

One of my favourite phrases in Knowledge Management is that “we stand on the shoulders of giants”. But we need to know just enough about what those giants know in order that we can learn from them and add that knowledge to the cross-disciplinary solutions we’re designing for our clients.

The legal industry provides solutions to this chaotic business and regulatory world we live in and so also needs professionals who can look outside their specialist subjects and see connections and solutions that can cross a wide range of disciplines.

“What defines GenFlux is a mind-set that embraces instability, that tolerates–and even enjoys–recalibrating careers, business models, and assumptions. Not everyone will join Generation Flux, but to be successful, businesses and individuals will have to work at it… Few traditional career tactics train us for an era where the most important skill is the ability to acquire new skills.”

European Court of Human Rights Factsheets

The European Court of Human Rights (ECHR) in Strasbourg decides thousands of cases every year on an unimaginably vast range of topics. And it has often heard cases on controversial subjects years before Canadian courts have tackled them.

The ECHR has been publishing a series of Factsheets that describe key jurisprudence of the institution broken down by subject.

The ECHR recently added new Factsheets on:

The ECHR hears complaints from individuals living in any of the member states of the Council of Europe about violations of the European Convention of Human Rights. The Council of Europe is one of the continent’s oldest political organizations, founded in 1949. It has 47 member countries.

Accessing Personal Information in Legal Opinions

A recent decision of the Court of Justice of the European Union found that the Dutch immigration authorities were not required to give a person access to a legal opinion about the person’s immigration status, though the opinion contained personal information about the person. Here is a story about the decision. Giving a summary of the personal information contained in the opinion was sufficient to comply with the obligation under the EU Privacy Directive to let people see the personal information about themselves.

Would such a request have a similar outcome in Canada, or would PIPEDA provide a separate exemption? It is not surprising to me that the legal opinion was off limits, but maybe I’m taking too narrow a view of it.

What do you think of the lawyer’s comment in the article that it’s of limited use to have access to one’s personal information if one can’t find out what is being done with it.

In a data analytics context for instance, a right to access data about you is pretty thin if you cannot also obtain the conclusions that are being drawn on the basis of that data.

Does that make sense to you? Or is it just trying to do too much with a privacy statute … which is why Canada accompanies privacy laws with access to information laws?

Thursday Thinkpiece: Alvarez & Lamport on Social Law Firm Business Strategies

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

Guy Alvarez & Joe Lamport
Ark Group, 2014

Excerpt: Executive Summary

Executive summary

PERHAPS THE most important new trend to emerge in the business world over the last decade has been the concept of the “social business”. CEOs of large corporations have realized that the world is now more connected; the way people communicate has changed, and businesses need to change too if they want to continue to prosper. In April 2014 IBM reported that 75 per cent of Fortune 100 companies are now using social enterprise software to cut across internal and external boundaries, encourage learning and productivity, and communicate with clients and customers. These leading organizations have put into practice the tools of “social business” and have subsequently thrived.

However, a recent survey by McKinsey indicates that this is just the tip of the iceberg when it comes to unlocking the potential value of social technologies. Significantly for law firms, the survey also notes that: “The potential for social technologies to create value through collaboration… is greatest for professional Yet, while the corporate world has services.”1 aggressively embraced the trend toward social business, large law firms have been notably slow in understanding or adopting this new organizational and management approach. This report therefore explores the ways in which a law firm stands to obtain a significant competitive advantage by transforming itself into a “social law firm” through the effective deployment of the organizational tools and techniques that have been tested, and which have had proven success, in the corporate arena.

The report begins with an overview of the recent trends in the corporate world in order to explain the key attributes of a social business. The assumption taken is that readers have no detailed background on these concepts, and the opening chapters therefore provide a concise summary of the most important aspects of social business, spanning various business contexts – from the use of social business to assist in the delivery of sophisticated financial services or the rapid prototype of new consumer-packaged goods. The core values associated with a successful social business transformation are identified, including – most importantly – the promotion of information transparency both internally and externally as organizations seek to become more responsive to the demands of the market, to streamline and fine-tune product development, and to improve market responsiveness based on real-time client feedback.

The report reveals the results of exclusive research the authors have recently conducted in the legal market to assess the extent to which law firms have begun to deploy social business tools and techniques. It outlines the findings of the research and the reasons why many large law firms have been particularly slow in their adoption of social business practices. The report shows that there may be strong cultural factors underlying the resistance among large law firms in joining the social business arena and, in particular, the report identifies how social business concepts and practices may clash with traditional methods of law firm management, which are in some respects opposed to information transparency and knowledge sharing.

The report considers both the arguments for and against applying the concepts and strategies of social business in the environment of a large law firm, but the ultimate decision is decidedly in favor of applying these tools and techniques to establish a social law firm. In doing so, an organization that is better able to marshal internal resources and collaborate with third party partners and providers is created – all in order to be better positioned to respond to client needs.

Several case studies have been included in the report which demonstrate how lawyers and law firms on the cutting edge are beginning to apply social business strategies in their daily practice. The report highlights instances in which leading law firms are using social business tools and strategies to foster internal collaboration and deliver innovative client services.

Finally, the report concludes with practical suggestions as to how any law firm can approach the challenge of transforming itself as a social law firm. A series of hands-on procedures and tactics are provided that will smooth the path to social transformation. In-depth guidance is provided on topics such as:

  • The importance of integrating social technologies into existing business processes;
  • Creating effective governance to support social advocacy;
  • Building the right resources and teams;
  • Developing effective educational and communication strategies to ensure adoption;
  • Getting buy-in from senior leaders; and
  • Learning how to measure and analyze your results.

This report serves as an essential guide that will help law firm management to understand both the “why” and the “how to” of social business transformation.


1. McKinsey Global Institute, “The social economy: Unlocking the value and productivity through social technologies”, July 2012, available at

Access to Justice: An Opportunity for Law Schools – Part 1

The CBA’s Equal Justice Report
The Canadian Bar Association’s Access to Justice Committee issued its final report in December, entitled Equal Justice: Balancing the Scales (disclaimer – I am a member of the committee). The committee proposed 31 targets to achieve access to justice in Canada. The report can be found here:

What isn’t well known is that some of these access to justice targets involved Canadian law schools. They provide an opportunity for law faculties to modernize their curriculum while playing a significant role in the biggest legal issue of our generation.

Last fall at the University of Alberta’s Future of Law School conference I presented a paper on what I called “The Great Disconnect” between the academy and the profession. Implementing the CBA’s ideas will help us reconnect, to allow law schools and law students to develop closer bonds with lawyers and with justice system stakeholders.
Targets and Actions
These are the targets for law schools proposed by the CBA:

  • By 2030, three Canadian law schools will establish centres of excellence for access to justice research.
  • By 2030, substantial experiential learning experience is a requirement for all law students.
  • By 2020, all graduating law students:
    • have a basic understanding of the issues relating to access to justice in Canada
    • know that fostering access to justice is an integral part of their professional responsibility
    • have taken at least one course or volunteer activity that involves experiential learning providing access to justice.
  • By 2020, all law schools in Canada have at least one student legal clinic that provides representation to low income persons.

To reach these targets, here are the actions that the CBA believes should be taken by law schools:

  • The CBA encourages law schools to offer substantial opportunities for experiential

learning in the access to justice context. This ties into the Legal Futures Initiative, which is considering legal education and training of the next generation of lawyers.

  • The Federation of Law Societies includes an access to justice component in its competency requirements.
  • Law schools expand the access to justice content of their curricula.
  • Law schools expand the availability of experiential learning to their law students.
  • The Council of Canadian Law Deans supports development of access to justice curricula.
  • Each law school appoints a staff member to serve as champion/leader for engaging discussion between the school and justice system stakeholders, including the public, about the role of law schools in supporting equal access to justice.
  • Law students have opportunities to become involved in CBA access to justice initiatives, including discussions of this report.

Student Legal Clinics

In the common law provinces, every law school has a student clinic representing low income persons with the exception of the two New Brunswick schools. In that province, funding is the biggest barrier to creating a clinic. Law foundations, student fees, and grants from provincial legal aid programs fund clinics in other law schools. I hope New Brunswick will step up and get this done.

In the civil law province of Quebec, there are clinics but they do not represent clients. McGill’s clinic for example only provides legal information.

The reason for the dearth of clinics in Quebec is because law students are not allowed to appear in the courts. Surely now is the time for Quebec bar to change this rule to both help low income persons and to improve the legal education of their students.

Are Quebec law students and faculties prepared to approach the Barreau du Québec about this reform? Is the Barreau prepared to take this simple but significant step to improve access to justice?

In my next column I will focus on more of the CBA’s recommendations: centres of excellence for access to justice research, experiential learning, and adding access to justice to the curriculum.

Tracking Currents and Following Flotsam

The Atlantic reported this week on the outcome of a 1997 cargo ship spill. The story was picked up yesterday by CBC’s As It Happens (listen here). Here’s what happened as described in The Atlantic article:

It started in 1997. On February 13 of that year, a rogue wave hit the New York-bound cargo ship Tokio Express while it was only 20 miles off Land’s End, on Britain’s southwest coast. The ship stayed afloat; some of its cargo, however—62 shipping containers—were thrown overboard as the vessel pitched. One of these containers contained Legos. Tons of Legos—many of them, because of course, nautical-themed. There were toy kits that included plastic aquanauts. And spear guns (13,000 of them). And life preservers (26,600). And scuba tanks (97,500). And octopi (4,200).

These Lego items have been turning up on the beaches of Cornwall ever since, serving as a reminder that:

…. the ocean’s currents can be as mysterious as they are powerful. “Tracking currents is like tracking ghosts—you can’t see them,” the oceanographer Curtis Ebbesmeyer told Cacciottolo. “You can only see where flotsam started and where it ended up.”

More than 17 years have passed since the Tokio Express lost its containers of Lego and still the current is bringing pieces to shore.

When I look back at how I practiced law in 1997, I recall I was just beginning to use a desktop computer for land title and corporate searches. My cell phone could only be used as a car phone. My small firm office relied on photocopies, fax, snail mail and the telephone. Phone messages from clients were recorded by hand on pink message slips that were stacked on a brass spike on my desk. I’d receive and respond to correspondence from clients or counsel within days rather than hours. Changes to draft documents were made in red ink and much paper.

Legal profession observers have been prophesying change in the profession for many years, yet it sometimes seems little of substance has really changed. Indeed, in their recent blog post, Whither Change? the authors of 3 Geeks and a Law Blog pointed to the remarkably slow pace of any major change in the legal profession, noting that:

The impending doom and demise of BigLaw is getting to be a very old story. Old enough, we should all be asking; So when is this actually going to happen?

The question being asked in the 3 Geeks post, and by others, is whether any of this is actually ever going to happen in a meaningful way.

But there is evidence of a shifting current. Every now and then, something does change. Law societies relax their rules. New kinds of legal service providers are approved and regulated. Virtual firms offer traditional legal services through new media. Traditional firms offer unbundled services and turn to value-based billing methods. New technologies enable new ways to communicate with and provide value to clients.

Small changes in the ways that law is practiced, occurring here and there, are not unlike the Lego toys washing up on Cornwall’s beaches. The waves of the future have washed over the legal profession’s ship and swept away some of the cargo. The mysterious currents of change carry it into our sight.

While some might interpret the prophecies of the legal futurists as suggesting the entire cargo is going to wash ashore all at once, it seems far more likely to me that what we’ll rather see is more like the flotsam that lands here and there along the coastline. As time goes on, there will continue to be evidence of incremental changes, mostly isolated and hard to see from a distance, but occasionally arriving en masse and with its own hashtag.

For me, the question is not so much when will it happen; rather, whether lawyers will lift their eyes to the horizon and see what the current is surely bringing to shore.

Indexes: Still Necessary in the Age of E-Books

One of the challenges for legal librarians is making sure that library users get the most out of the resources available to them. There is an incredible amount of legal information available, but if a researcher cannot find the information he or she needs, the information might as well not exist. Fortunately there are a number of tools out there to make the process easier. On a wider level, these tools include library catalogues and bibliographies, and on a narrower level these tools include tables of contents and indexes.

A good index can be worth its weight in gold, helping readers to quickly find information they are looking for. Unfortunately, the indexes of law books are sometimes treated as an alphabetized version of the table of contents which they most definitely are not. Nancy Mulvany states in her excellent book on indexing:

“An index is not a concordance, a list of all the words that appear in a document. … An index is not a more elaborate version of the table of contents. Neither is the index simply an outline of the book.”

An index is a finding tool. While the table of contents shows users how a book is laid out, the index allows users to pinpoint the location of a specific subject in a book. In situations where a subject may be referred to by multiple terms, the index should include these synonyms. Legal researchers tend to deal with very specific areas of law; if it is not immediately apparent from the table of contents where these areas are found in the book, the index saves the researcher from having to read through all the possibilities. An index also makes it obvious if a subject is discussed in multiple sections of the book and which section deals with the subject in the most detail. For example, a reference to a range of pages generally indicates a greater depth of treatment than does a reference to just a single page.

Legal texts differ from other types of book in that they generally include both a subject index and more specialized indexes such as tables of cases and legislation. If a researcher is looking for commentary on a specific case or piece of legislation, these specialized indexes are extremely helpful.

It is sometimes assumed that a book that is being read on an electronic device does not need an index, as readers can use the search function instead. Although word search is a useful tool, it does not replace the index, since it fails to distinguish between irrelevant mentions of a word (e.g. “this chapter will not discuss SEARCHTERM”) and lengthy discussion of the subject. If a book is published both in print and electronically, the design of the eBook index tends to be based on its print counterpart with additional functionality, such as hypertext links, being added. Too literal a conversion of the print index can reduce the index’s usefulness; for example, some index conventions like the two- or three-column format are much harder to read on a computer.

It can be tempting for publishers to speed through the preparation of an index since it is the final step of the book editing process. At this point the book has been completely edited and the pages have been laid out. Any delays in the writing and editing process will reduce the time allocated to the indexer which in turn may result in a reduction in the quality of the index. Ideally the indexer should have enough time to fully understand the material and ask the author for clarifications as necessary.

Factors that can affect the quality of the index include how knowledgeable the indexer is about the subject matter and if there are multiple authors; in a book where chapters are written by different people, different terminology may be used by each author, making the indexer’s job harder. Another challenge for indexers is designing the index for the appropriate level of reader: will the book be read by people who are unfamiliar with the subject, experts, or – more challengingly – both?

There have been experiments in automated indexing, but these have not been as successful in producing indexes as those produced by humans. Human indexers are still better at understanding how readers look for information, and how the various terms used relate to each other.

A poor index (or no index at all) impedes the research process. Giving the increasing number of e-books out there, publishers may think that they can omit the index as it is no longer necessary, but, as has been mentioned above, this is not the case. The index remains a valuable tool for researchers no matter what the format of the publication.

Further Reading

Nancy C. Mulvany, Indexing books, 2nd ed. (Chicago : University of Chicago Press, 2005).

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. Dennis v. Ontario Lottery and Gaming Corporation, 2014 ONSC 3882

[64] Where theft by an employee is suspected the outcome of criminal charges is not determinative for employment purposes. An act of theft by an employee may be provable on a civil standard that falls short of proof beyond a reasonable doubt.

[65] In the particular circumstances of this case, including the following:

(a) her stated intent throughout to repay the cash before it was due to Wonderland;

(b) conduct of the arrangement with Wonderland not being part of her employment duties at OLG; and

(c) the inadequate and inaccurate internal investigation.

I find that it is totally disproportionate for OLG to view her conduct as support for termination with cause.

2. Matheson v. Lewis, 2014 ONCA 542

[22] The motion judge correctly identified the purpose of the legislation before him but then adopted an interpretation that failed to give effect to that purpose. He considered matters that were not pertinent to the exercise of statutory interpretation: whether the regulatory definitions were out of date, the views of the farming community, and the fact that Mr. Matheson was not at fault in the accident. Consequently, he lost sight of the goal of determining the intent of the legislature.
The statutory and regulatory scheme

[23] The motion judge strayed outside the role of the court, which is to interpret and apply the laws enacted by the legislature. No technique of statutory construction allows a court to decline to apply legislation that in its opinion has not kept pace with changes in society.

3. Security National Insurance Company v. Hodges, 2014 ONSC 3627

[18] The regulation also requires that the brain impairment be “in respect of an accident”, so the starting point is to determine whether the person sustained a brain injury that is a reason for some brain impairment. In this case, if the MRI or CT scan of August 7th had shown no brain injury whatsoever (or a brain injury that was so minor as to not impair consciousness whatsoever) there would be no brain impairment “in respect of an accident”. However, in this case, even Dr. Berry agrees that the injury to Mr. Hodges’ brain was accident related and resulted in at least some brain impairment. There is no requirement that the brain injury by itself would have reduced a GCS score to 9 or less. It is sufficient that the person claiming catastrophic impairment had any brain injury causing any impairment to make that person’s GCS score relevant for the purposes of the definition in the SABS.

[19] We agree with the Director’s Delegate that an inquiry into the patient’s prognosis or the seriousness of the actual brain injury is irrelevant for the purposes of the SABS. The GCS score is a proxy for that determination and it is conclusive with respect to the definition of catastrophic impairment.

The most-consulted French-language decision was Jules Jordan Video inc. c. 144942 Canada inc., 2014 QCCS 3343

[3] Le 15 septembre 2005 marque le début d’une saga judiciaire entre les Requérants et les Intimés, alors que les Requérants déposent devant la Cour de district une réclamation ciblant, entre autres, les Intimés pour : «1. Copyright infringement; 2. Contributory copyright infringement; 3. Violation of unfair business practices – unfair competition; 4. False and misleading advertising; and 5. Violation of right of publicity»[2] (le «Litige d’origine»).

[4] Le Litige d’origine est consolidé aux procédures déposées parallèlement dans l’état de la Californie par John Stagliano, Inc.[3] («Stagliano»), et ce, afin de faciliter l’administration de la preuve, vu la similarité des faits à l’origine des procédures de part et d’autre.

[5] Par contre, seul Stagliano poursuit les Intimés aussi aux termes de la loi américaine «Racketeer Influenced and Corrupt Organizations Act» (la «Loi RICO»)[4], lequel recours sera éventuellement réglé entre les parties concernées.

* 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.

The Komagata Maru Remembered

On May 23, 1914, the Komagata Maru sailed into Vancouver’s Burrard Inlet, carrying 376 passengers of Indian origin. However, the passengers on board the Japanese steamer were denied permission to enter Canada. Fears over Asian immigration at the time led the Canadian government to adopt a series of racist exclusionary policies against Chinese, Japanese and Indian migrants.

For two months, passengers of the Komagata Maru sought to defy the Continuous Journey Regulation, adopted solely to exclude them. While the passengers were not allowed to disembark the ship, supporters in Vancouver challenged the regulation on their behalf in court. Ultimately unsuccessful, the Komagata Maru sailed out of the Burrard Inlet on July 23, 1914 to the uncertain fates that awaited the ship’s passengers in Asia.

Today marks the 100th anniversary of that shameful departure.

Canadians of South Asian and non-South Asian heritage have been reflecting on the lasting impact of the Komagata Maru on Canadian identity as part of a remembrance initiative. The repository includes reflections by various members of the legal profession, including the Honourable Justice Russell G. Juriansz of the Ontario Court of Appeal.

Today’s anniversary entry is by Professor Faisal Bhabha of Osgoode Hall Law School.


Personal reflections on Indo-Canadian heritage and historical convergences between a young Gandhi, Canadian immigration and family history

When my great-grandfather left India in the 1880s, he was an industrious Gujurati availing himself of mobility opportunities within the then-British Empire. He went to pursue a better life in the distant, thriving colony of South Africa.

What he found there was a racialized legal order that turned non-Europeans into second-class British subjects.

Because South Africa was already a racially diverse society, with a sizable white population, the racism of colonialism—muted somehow in India—was everywhere in South Africa. It was formalized in law and administrative power. It operated both quietly to disenfranchise non-whites, and obnoxiously through segregation and inferior treatment.

It was this reality that sparked a political interest in a young Mohandas Gandhi, who arrived in South Africa in 1893, not long after my great-grandparents. Aged 24, recently called to the bar, idealistic and jobless, he accepted an offer with a firm of Indian lawyers, Dada Abdulla & Co, in the South African coastal city of Durban. Members of the Indian community were contending with a rising tide of anti-Indian sentiment and political persecution. Gandhi took up the cause enthusiastically.

In 1896, after having travelled back to India to raise awareness about the plight of South Africa’s Indians, Gandhi and 800 fellow passengers found themselves stranded in Durban port for nearly a month, prevented from disembarking the ship due to white hostility and government discrimination. The growing Indian population in the colony was causing the white South African population to fret about changing demographics.

This same anti-Indian xenophobia would wash up on Vancouver’s shores two decades later, giving rise to the infamous Komagata Maru incident.

In South Africa, Gandhi’s eyes were opened to the malice of British imperialism, with its roots in racial prejudice. South Africa under British rule, like Canada in the late 19th and early 20th Century, was in the process of building a white settler state on the ruins of indigenous society by curtailing immigration from Asia, while trying to populate the country with Europeans.

It was during this time that Gandhi conceived of his revolutionary idea of satyagraha, translated as “adherence to the truth”, and practised as non-violent resistance to injustice. It came to him during protests against discriminatory laws which required Indians and Chinese to carry registration cards at all times.

These “pass” laws were designed to restrict and control the Asian population in South Africa. Failure to produce a card on demand could lead to immediate deportation without a right of appeal. More than 2,000 South African Asians were jailed by the British during this time for openly defying the law. Many were beaten and some were killed.

Gandhi came to realize that the rule of law meant little if the law itself was unjust. Fidelity to law could only mean fidelity to power; when those in power were wicked, there could be no fidelity to law.

He turned away from the legal profession and embraced the path of spirituality and social activism to fight injustice. He wrote about his experience resisting unjust laws in his book, Satyagraha in South Africa, which served as a blueprint for his later struggle to end British rule in India.

In his final years in South Africa, Gandhi continued to agitate and organize in defiance of discriminatory laws and restrictive immigration policies. His transition from lawyer to social activist complete, he made his final return to India in 1914—the same year that the Komagata Maru made its ill-fated voyage to western Canada.

In my family, Gandhi was remembered not as the liberator of India but rather as the dapper lawyer and fellow Gujurati, who gave Indians in South Africa a voice and affirmed their place in their adopted homeland.

The passengers aboard the Komagata Maru were, like my great-grandparents, seeking a fresh start in an adopted homeland. The Sikh, Muslim and Hindu Indian British subjects probably believed the hype: that Canada in the early 20th Century was an open, diverse and burgeoning nation.

Indeed, in 1900, Canada had a population of around five million. From then until the outbreak of First World War, the country welcomed nearly three million newcomers, with immigration levels hitting a record peak in 1913. Yet, in fact, Canada remained—quite intentionally—overwhelmingly white. The country’s immigration law explicitly favoured Europeans and Americans, while it explicitly restricted non-white immigration.

At the same time, in South Africa, the legal infrastructure of Apartheid ensured that it too would grow and develop only for the benefit of whites. Many Indians joined the anti-Apartheid struggle for racial equality. Some determined they could not live under such conditions and decided to leave the country. As institutionalized racism in Canada slowly receded through the mid-1900s, in South Africa it worsened. By 1965, seeing many of his peers jailed or forced into hiding, my father made the choice to emigrate in search of a better life.

Canada had changed in the 50 years since the Komagata Maru incident. Parliament adopted the federal Canadian Bill of Rights and most provinces enacted human rights statutes ensuring non-discrimination. An avid political observer, my father admired Prime Minister Diefenbaker, who had been instrumental in booting South Africa out of the Commonwealth in 1961 by insisting that all members commit to the principle of racial equality.

Yet, domestically, the Prime Minister never acknowledged that the architects of Apartheid had studied Canada’s Indian Act for guidance on how to legalize and implement segregation. Canada’s racist legacy linked policies of Aboriginal disenfranchisement with white settlement. Canada’s Ministries of Immigration and Indian Affairs were even under a single ministerial portfolio from 1950 to 1965. Meanwhile, the immigration law on the books was still tethered to overtly racist policies not so different from those in place at the time of the Komagata Maru.

In 1967, the Immigration Act was overhauled, removing discriminatory language and introducing the neutral points system that survives to this day.

That same year, my non-white, not-yet-citizen father began a 30-year career working for the federal department of Immigration. This was the golden age of Canadian immigration, when the country threw its doors open. From the 1970s onwards, Canadian immigration was markedly colourful. The country matured not only as a multicultural society, but as the thoroughly multiracial society that it is today.

After the events of September 11, 2001 and the introduction of new immigration and anti-terrorism laws, Canada’s open and liberal approach to immigration receded and the security state took hold. Fortunately, my father, who had always been a great believer in Canadian immigration policy, retired from service a few years before the downward spiral began.

Canadian immigration policy today is racialized in new ways but with strangely familiar tones. On the one hand, there is no colour bar—each year, the countries of South Asia are the largest producers of Canada’s immigrant population. On the other hand, immigrant selection is increasingly narrow and security obsessed. The values of fairness and openness are disappearing with drastic changes in the law that make the country more difficult to enter, and less welcoming upon arrival.

In my time practising and teaching law, I’ve tried to hold firm to the belief that the law is capable of delivering justice, even if this capacity is not always realized or self-evident. The turn to security in immigration law and policy since 9/11 (what some now call “crimmigration”) has challenged the notion that Canada is an immigrant’s paradise and it certainly has been a reminder that we must be vigilant in holding government to account for ensuring fairness and justice to the most vulnerable. These are the lessons that I take from more than a century of my family’s history, from India to South Africa to Canada.

As a Canadian lawyer of Indian heritage, I find myself part of a fast-growing community of people of colour within the profession who find themselves on the better side of privilege. What we do about it matters. I believe that privilege comes with responsibility: that is, to follow the lessons of our history of exclusion and ensure the law is always held up to the standard of justice, and to accept nothing less.


This piece is cross-posted to the author’s blog, which offers far greater detail about the topic.