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Canada's online legal magazine



Last Build Date: Wed, 25 Apr 2018 11:00:50 +0000

 



Why Everyone Should Take Mediation Training

Wed, 25 Apr 2018 11:00:50 +0000

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Over the years I have been asked many times, by lawyers, law students and others, whether they should take mediation training. Most were interested in mediation, many participated as counsel at mediation but few planned to be full-time mediators. My standard answer has been that mediation training was valuable to everyone as it provides key life skills that are useful in all parts of our lives, not just in our legal career. Mediation training teaches us about the dynamics of human behaviour and provides a fundamental suite of skills for dealing with inevitable conflict in healthy ways that prevent conflict . . . [more]




Wednesday: What’s Hot on CanLII

Wed, 25 Apr 2018 11:00:32 +0000

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Each Wednesday we tell you which three English-language cases and which French-language case have been the most viewed* on CanLII and we give you a small sense of what the cases are about.

For this last week:

1. R. v. Comeau, 2018 SCC 15

[2] The respondent, Mr. Gerard Comeau, contends that s. 121 is essentially a free trade provision — in his view, no barriers can be erected to impede the passage of goods across provincial boundaries. On the other side of the debate, the appellant, Her Majesty the Queen in Right of New Brunswick (“the Crown”), argues . . . [more]




Tips Tuesday

Tue, 24 Apr 2018 11:00:17 +0000

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

Research & Writing

Coming Into Force of Statute Revisions Susannah Tredwell

One of the (many) confusing things about historical legislative research is the fact that revised statutes don’t necessarily come into force in the year of their citation. For example R.S.C. 1985, which consolidates the text of the statutes in force on December 31, 1984, came into force almost four years later on December 12, 1988. Any changes made after . . . [more]




Good News and Bad News for Law School Clinics

Tue, 24 Apr 2018 11:00:12 +0000

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When I hear “I have good news and bad news, which do you want to hear first?” I always want to hear the bad news so I can end with the good news. For Canadian clinical legal education, here is the bad news.

Bill C-75 – Unintended Consequences?

The federal government introduced Bill C-75 for first reading in the House of Commons on March 29. This bill includes many significant and progressive reforms to the Criminal Code.

The bad news in the bill is s. 319, which amends s. 387 of the current Code:

319 Section 787 of the Act

. . . [more]



Monday’s Mix

Mon, 23 Apr 2018 11:00:03 +0000

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Each Monday we present brief excerpts of recent posts from five of Canada’s award­-winning legal blogs chosen at random* from more than 80 recent Clawbie winners. In this way we hope to promote their work, with their permission, to as wide an audience as possible.

This week the randomly selected blogs are 1. Employment & Human Rights Law in Canada 2. Michael Spratt 3. NSRLP 2. Van Dyke Injury Law Blog 5. ABlawg.ca

Employment & Human Rights Law in Canada Equal Pay for Equal Work Now in Force

On April 1, 2018 Equal Pay for Equal Work, the new section . . . [more]




Hipster Antitrust’s Potential to Make Competition Law Sexy Again

Mon, 23 Apr 2018 02:55:36 +0000

A renewed scrutiny of corporate governance was inevitable in light of the current political climate and the backdrop of the recent recession and notable market failures.

This revisionist approach towards competition law expands the scrutiny beyond notions of consumer welfare standards into non-traditional economic considerations like fairness, underemployment, income inequality, wealth concentration and broader social contexts. Derisively referred to as “Hipster Antitrust,” it finds its modern roots in America in the 1978 text The Antitrust Paradox by Robert Bork, which has already influenced American competition law. Hipster Axntitrust would go further and reconsider historical assumptions in a new information economy . . . [more]




Summaries Sunday: SOQUIJ

Sun, 22 Apr 2018 11:00:09 +0000

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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) : L’ordonnance d’un nouveau procès rendue par la Cour supérieure est confirmée puisque l’appelant, qui a été acquitté par la Cour du Québec sous l’accusation d’avoir conduit son véhicule avec une alcoolémie supérieure à la limite permise, aurait dû présenter une preuve d’expert afin de repousser la présomption . . . [more]




AODA: Improving Accessibility Standards for Employment

Thu, 19 Apr 2018 13:00:10 +0000

The Ontario government is updating the accessible employment standards to make employment more accessible to people with disabilities. Consequently, the Employment Standards Development Committee would like to get interested stakeholders and the public’s feedback on the initial recommendations to the 2018 Review of the Employment Standards under the Accessibility for Ontarians with Disabilities Act (AODA).

The following is the Employment Standards Development Committee’s initial advice and recommendations on the initial proposed Employment Standards, itemized and organized by focus area, and some thoughts.

1. A new long term objective: The initial long term objective of the accessible Employment Standards was . . . [more]




Is the Law Society of Ontario Still Donating to Political Parties?

Thu, 19 Apr 2018 11:00:05 +0000

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One benefit of being a regular Slaw columnist is the ability to revisit previous columns. Roughly four years ago, I wrote a column titled “Why Is the Law Society Donating to Political Parties?: Some Answers and Questions” where I explored and questioned the fact that the LSO (then LSUC) made donations totalling $21,000 in 2013 to the provincial Liberal, Conservative and NDP parties, as reported in a Law Times article.

At the time, the Law Society explained, in part, that “[c]ontributions are only made through the purchase of tickets to attend events hosted by the parties and/or elected politicians” and . . . [more]




PIPEDA Privacy Breach Notification Coming Nov 1

Wed, 18 Apr 2018 13:32:56 +0000

Effective Nov 1, 2018, businesses that have a privacy breach must give notice of the breach under PIPEDA – the privacy legislation affecting the private sector in most Canadian provinces. The final regulations containing the details are about to be published.

Here are the highlights.

When do I have to report?

If there is a privacy breach that “creates a real risk of significant harm to an individual”. That includes bodily harm, humiliation, damage to reputation, financial loss, identity theft. Risk factors to decide the reporting threshold are provided. The report must be made “as soon as feasible after the . . . [more]




Wednesday: What’s Hot on CanLII

Wed, 18 Apr 2018 11:00:47 +0000

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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. Gamoff v. Hu, 2018 ONSC 2172

[1] When the residential real estate market is a rising market, most people – perhaps with the exception of first time buyers, are happy homeowners and investors. When the market turns and drops, it is not for the faint of heart. The facts of this case tragically demonstrate how one family, presumably desperate for their . . . [more]




The Unrealized Potential of Courthouse Libraries

Wed, 18 Apr 2018 11:00:24 +0000

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I’ve never had anything but the highest respect, admiration and regard for my colleagues in courthouse libraries; and, if I have any regrets about my career, one of them is that I never had the opportunity to work in a courthouse or law society library. Of all librarians, it is they who, through a network of almost 200 county courthouse libraries in Canada, remain closest to the practising legal profession. Private law librarians (ie, law firm librarians) are closely attuned to the practice in their firms, often specialized in one area of law (eg, labour or criminal or business law) . . . [more]




The Limits of Complex Algorithms in Predicting Recidivism

Wed, 18 Apr 2018 10:32:54 +0000

In the “Centre for Criminology & Sociolegal Studies: Criminological Highlights” published by the University of Toronto, the ability of complex algorithms to predict recidivism or re-offending while on pretrial release is discussed. In a study by Julia Dressel and Hany Farid, the researchers assessed the accuracy of algorithm based prediction system COMPAS.

They looked at data from 7,214 defendants in one county in Florida. They compared the predictions made by COMPAS to two other sources of predictions: (1) Ordinary statistical predictive models and (2) Intuitive predictions by ordinary people.

Dressel and Farid found that COMPAS’s prediction of recidivism (arrest within . . . [more]




Tips Tuesday

Tue, 17 Apr 2018 11:00:41 +0000

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

Research & Writing

Is That In– or Un–? Neil Guthrie

The question of –able or –ible a few weeks ago got me thinking of other spelling conundrums. Is a course of action inadvisable or unadvisable? Either, actually – but usage is changing and now seems to favour inadvisable. Is there a rule for determining this? …

Technology

Need American Case Law? Try Google Scholar Ken Fox

Surprising as . . . [more]




Cyber Security – Spear Phishing Covered Under Insurance Policy Where Code Manipulated

Tue, 17 Apr 2018 11:00:37 +0000

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Increasingly insureds faced with cyber fraud losses are going to the courts to interpret their policies. In The Brick Warehouse LP v. Chubb Insurance Company of Canada, 2017 ABQB 413, and in Taylor & Lieberman v. Federal Insurance Company, 2017 WL 929211 (March 9, 2017 9th Cir.), fraudulent emails, as part of a social engineering attack, were sent to company employees who acted on them transferring money from the insured’s account. In both cases courts held that coverage under the Fund Transfer Fraud policy was denied as the victim knew or consented to the instructions given to its bank . . . [more]




Monday’s Mix

Mon, 16 Apr 2018 11:00:38 +0000

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Each Monday we present brief excerpts of recent posts from five of Canada’s award­-winning legal blogs chosen at random* from more than 80 recent Clawbie winners. In this way we hope to promote their work, with their permission, to as wide an audience as possible.

This week the randomly selected blogs are 1. ABlawg.ca 2. Global Workplace Insider 3. National Security Law 4. Barry Sookman 5. NSRLP

ABlawg.ca Foreclosing Mortgagees’ Liability for Tenants’ Security Deposits

This appeal from an order of a Tenancy Dispute Officer of the Residential Tenancy Dispute Resolution Service (RTDRS) is worth noting for several reasons. First, . . . [more]




Making the Best Better

Mon, 16 Apr 2018 11:00:23 +0000

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In a recent article on legal practice Ken Grady offered this thought:

As we often hear today, lawyers need to become fans of data. The age of talking to a lawyer who gives an opinion based on the 10 or 15 cases she has handled is past (or it should be). Clients should recognize that advice based on such weak datasets is meaningless and should call out their lawyers for basing opinions on it. Excellence means knowing more than the average player. It means having that depth and breadth of knowledge that is hard to match. Law firms need to

. . . [more]



Interrupted Childhoods and Overrepresentation in the Wrong Places

Mon, 16 Apr 2018 02:52:10 +0000

Race is an artificial and arbitrary social construct, and there is no biological or scientific basis for the racial distinctions we make between people. It is a function of our history and our misconceptions of how people have existed or migrated around the world, and our racial definitions have changed drastically over time based on different environmental and social factors.

Given the lack of objective basis for racial definitions, some people query why we track racial statistics in society at all. Doing so has the potential to ingrain these social constructs and divisions even further, and prevent us from treating . . . [more]




Summaries Sunday: SOQUIJ

Sun, 15 Apr 2018 11:00:18 +0000

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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.

FAMILLE : Dans un contexte de violence conjugale dans le milieu de la mère, le juge de première instance, qui a maintenu les enfants des parties auprès de cette dernière, a commis des erreurs justifiant une intervention lorsqu’il a fait fi de l’opinion de l’expert et a omis de mettre . . . [more]




Working With Lawyers – Tech Adoption

Fri, 13 Apr 2018 11:00:47 +0000

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You can’t talk about legal technology without talking about, and to, lawyers. Also vodka. Kidding.

Anyone who has spent more than an hour trying to get lawyers to use pretty much anything other than Word and Outlook will know that adoption is a Sisyphean task. Lawyers have a general negative reaction to anything you show them. They expect perfection and ease of use, and hate any disruption to their normal (though admittedly imperfect) workflow.

I don’t pretend I’m a change expert (except on my resume, obviously), but I have had some success in (1) convincing lawyers to just try the . . . [more]




Parental Insurance Plan and Additional Employment Standards Changes Coming

Thu, 12 Apr 2018 13:00:00 +0000

On March 22, 2018, the Quebec government introduced Bill 174: An Act mainly to relax the parental insurance plan to promote better family-work balance. If enacted, this Act comes into force on the date of assent, except section 12, which comes into force on the date to be set by the Government.

The main changes in the Bill include:

1. Maternity benefits

  • Increase the period, currently 18 weeks, to 25 weeks, within which maternity benefits can be provided following the birth of a child.
  • Increase the number of weeks of maternity benefits for a multiple pregnancy. In the event of
. . . [more]



Who Is Your Ideal Client?

Thu, 12 Apr 2018 11:00:02 +0000

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It’s easy to define your ideal client—someone who needs your services and pays their bills, right? When you’re building your practice, that’s a good place to start. Any client looks like an ideal client at first, but after a few years in practice you begin to recognize the clients you want—and those you don’t. Better to have that recognition sooner rather than later, because then you can build the practice you want, rather than have it built for you by whoever comes in the door.

There are plenty of clients who need your services and pay their bills, but some . . . [more]




When Does a Technical Standard Become a Legal Standard of Care?

Thu, 12 Apr 2018 08:14:01 +0000

The Guardian reports us that the World Wide Web Consortium (W3C) is close to adopting a new authentication standard that can replace passwords. This would be some kind of “who you are” (biometric) or “what you have” (token, phone to receive code) method of authentication, rather than a “what you know” password. (I suppose a code sent to your phone is what you know, but you know it only case by case, because you have another communications channel.)

Some web services already work this way, as the article notes – or does in special cases, as when one is logging . . . [more]




New Stuff & Old Laws

Wed, 11 Apr 2018 13:49:50 +0000

A common issue for new technology is the application of existing laws that were created before the new tech was contemplated. Examples include fintech (financial applications), fitness and health applications, and ridesharing services (such as Uber).

What is the issue?

Some activities and services are highly regulated. Financial services and the taxi industry are good examples. New entrants create innovative applications and services that compete with incumbents, but may or may not be regulated the same.

In some areas the entity may be regulated rather than the activity (often the case in fintech).

Laws sometimes prescribe a specific solution, rather . . . [more]




Wednesday: What’s Hot on CanLII

Wed, 11 Apr 2018 11:00:45 +0000

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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. Chin v. The Law Society of Upper Canada, 2018 ONSC 2072

[2] On May 15, 2015, the Hearing Division of the Respondent Law Society of Upper Canada (the “Law Society”) found that the Appellant knowingly participated in mortgage fraud in respect of six residential real estate transactions. Her licence to practice law was revoked. The Hearing Tribunal found that maintaining public . . . [more]




The Underwear Gnomes of Law

Wed, 11 Apr 2018 11:00:34 +0000

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Depending on your age and preferred cultural touchstones, the title of this column is ether instantly recognizable or a complete mystery. If it’s the latter, the video below, excerpted from a 1998 episode of South Park, should shed some light.

The underwear gnomes’ profit strategy has become a widely cited meme in the intervening years, owing to its effective illustration of the shortcomings of many strategic plans. The premise sounds interesting; the outcome sounds great; but the opaque middle step, whereby the interesting premise is somehow converted into bags of money through mysterious processes, is entirely glossed over.

I’ve . . . [more]




The Uber Powerful Impact of Arbitration Clauses

Tue, 10 Apr 2018 18:38:00 +0000

In the recent case of Heller v. Uber Technologies Inc., the Court dealt with a case in which Mr. Heller, an Uber food delivery driver, attempted to bring a class action on behalf of all Uber drivers against Uber. Mr. Heller sought a declaration from the Court that all of the drivers are employees of Uber and thereby entitled to the benefits of Ontario’s Employment Standards Act. Uber brought a motion to the Court to stop the action on the basis that any complaint by Mr. Heller would have to be dealt with by way of arbitration in . . . [more]




Can You Hear Me Now?

Tue, 10 Apr 2018 11:00:40 +0000

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It is not just cellphone mascots who desire to be heard. Many people who have matters before administrative decision makers expect to be heard; often that expectation is that they will be able to make oral submissions. In my personal experience, I find that many people believe that they can present their case better orally than in writing. The reasons may vary: they might not believe themselves capable of presenting a strong written case; they might not have the level of schooling that makes it easy for them to make written presentations; there might be language issues; or they might . . . [more]




Tips Tuesday

Tue, 10 Apr 2018 11:00:30 +0000

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

Research & Writing

Ask Yourself These Four Questions About Any Digital Collection Ken Fox

Whenever you set out to use any electronic research source, be it a public web search or a specialized database, there are a few questions you should always ask – four to be exact. …

Practice

Last Night I Dreamed I Was at One of My Old Jobs. I Woke Up to Heaven. Ian Hu

There . . . [more]




Towards Cyberjustice Retrospective Part 2: a Tale of Cyberjustice

Mon, 09 Apr 2018 11:00:35 +0000

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As announced in our October 17th column, this is the second of a series of blogs highlighting the various papers, studies, and pilot projects conducted by the Cyberjustice Laboratory under the auspices of the “Towards Cyberjustice” Project. Funded by a Major Collaborative Research Grant from the Social Science and Humanities Research Council, this seven-year long project has finally drawn to a close and will be the subject of a detailed report to be released later this year. In anticipation of this upcoming report, its first chapter – entitled “A Tale of Cyberjustice” – will be highlighted . . . [more]