Maude BLawG

“In-house counsel, they have it so easy”

2011-05-12T11:29:00.000-03:00

Almost a year ago, I closed my private practice and accepted a position as in-house counsel. It was an intriguing challenge: I had acted as a kind of "outsourced" in-house counsel to a number of companies, and I now had the opportunity to do that work full time. I was swapping all of my clients for one, and giving up being my own boss in exchange for having one (accompanied by a regular paycheque and a number of extra benefits).

I don’t regret the decision at all. It’s been a fascinating challenge, and I’m relishing all of the new opportunities. Notwithstanding that, there were a number of things to which I needed to get (re-)accustomed. I now had co-workers (I had run my own office – solo – for the past 7 years). There were technology protocols and procedures (I had drafted, implemented and ignored my own for most of the previous decade), and there were meetings. Lots. And lots. Of meetings.

At first, the time spent as in-house counsel (in my case) was on reading and familiarizing myself with a lot of the policies and procedures that had been drafted and implemented here since the company was founded. Like many new, small companies, this one had taken a stab at drafting policies. They then hired a consulting firm to draft a number of them and oversee their implementation. My new role consisted (in part) of revising and updating them.

Suffice to say the word "boilerplate" kept reverberating in my head.

Small companies pride themselves – rightly – on eschewing institutional, nameless/faceless policies in favour of ones that are more flexible, more adaptable, and more personalized. The problem lies in ensuring that those policies (which have been flexed, adapted and personalized, over and over again) are applied in a uniform fashion, and that they comply with existing legislation. Another problem lies in explaining why uniformity and legality are critical benchmarks to people unfamiliar with such lawyer-inspired encumbrances.

Case in point: we rent living quarters for our employees who work on isolated (and not-so-isolated) job sites. For awhile, these arrangements were, to be charitable, "informal". Ensuring that proper leases were in place became a bit of a hobby-horse of mine. Resisting my legalese nonsense became a bit of a hobby-horse of some of our living-quarter-procuring staff. In the end, we agreed on a suitable compromise that saw that my (and the company’s) needs were met and that their jobs were not made more difficult.

The point being: not only are you now the legal adviser (accustomed to providing advice and letting the client decide whether to follow it), you are now the legal adviser who is tasked with providing the advice, ensuring compliance with said advice, and all the while remaining mindful of your place in a much larger team. The team dynamic is not one that is regularly touted at law school (or in solo practice).

The "ensuring compliance" aspect can also prove challenging. As outside counsel, it’s easy to advise in writing, strongly urge compliance, and then let the chips fall where they may. You’re convinced of the soundness of your advice. You’ve provided it in writing, and in a timely manner. You’ve strongly recommended that your client adopt a course of action. You have that warm, secure feeling of your backside being properly covered.

However, now that you’re "part of the team", compliance takes on a much more challenging role. Compliance now becomes subject to budgetary constraints, senior management (and, sometimes, Board of Directors) approval, and implementation protocols. It’s no longer merely an offered opinion; it’s now an "Action Item" (along with a few other, choice, MBA-inspired terms).

As in-house counsel, you gain a better perspective on the frustration of a client who questions the feasibility of a lawyer’s advice. You gain a certain sympathy for the client who resists a legal strategy, thinking it too convoluted, too costly to implement, unrealistic. If only those lawyers spent some time in industry, you begin to think, perhaps they’d appreciate the true difficulty of what it is they’re suggesting.

"Outside counsel", you find yourself musing, "they have it so easy".

New & Improved! For a limited time only!

2011-02-01T08:37:00.002-04:00

One issue that comes up when you’re starting (or developing) your own practice is the question of how – or indeed, whether – to advertise. We’ve all seen our American colleagues’ ads on television (and laughed, or groaned, or gasped), and everyone always checks out their own colleagues’ ads in the Yellow Pages every time the new book comes out. But how do you decide what it is that you’re going to do when it comes to letting the public know that you have an office and would be more than happy to have them come and see it?

Our governing bodies have rules and/or guidelines specifying what we can and cannot do when it comes to advertising. Some find these a bit restrictive. Some, myself included, find these to be perfectly appropriate and a welcome guard rail against some of the excesses that we’ve all seen elsewhere (my all-time "favourite" still being Jim "The Hammer" Shapiro from Rochester, NY; if you’ve not yet seen his contribution to the legal services adverting compendium, I highly recommend checking it out).

So what to do? How much to spend? Where to spend it?

There are pros and cons to advertising in your local telephone directory. Everyone should have (at the very least) a basic listing. The cost/benefit analysis to these directories is, however, somewhat mixed. I’ve spoken to a few lawyers who have taken out very large (and hugely expensive) ads in these directories and, for the most part, they say that the ads wind up paying for themselves. Some, however, have offered that the ads do little more than that, in the long run.

Web-based advertising is growing very quickly, and a lot of people are still intimidated by the technological aspect of this. Thankfully, a lot of the newer generation of lawyers are far more comfortable with new technology than some. A website is, now, an almost-indispensable place to start. However, when it comes to building and updating your web presence, that’s still unfamiliar territory to most lawyers. Thankfully, there are a great many professionals out there who can assist with the building and maintaining of a website.

However, a website (which only a few short years ago used to be the sign of a successful, established firm) is now merely a very basic starting point. Do you take advantage of social media? Should you? Do you write and maintain a blog? Should you?

Social media is a lot more than merely tweeting your latest 140-characters-or-less pearls of wisdom, or posting pictures and links on your Facebook page. It is very quickly becoming, like the website, another indispensable tool is getting your "presence" known to the public.

Here’s where it gets more detailed: what on Earth do you talk about?

Those of us who frequent Twitter and Facebook soon realize that the "noise" that’s out there can get quite loud. It would be very easy to get one’s message lost in the electronic din. However, by starting slowly, by maintaining a coherent – and, above all, consistent – message, then your electronic message will begin to be heard. Most importantly, the cost of maintaining a Twitter and Facebook presence is measured in time and effort alone: both services are free to use. There are also several web-based services (called "clients") that allow you to maintain multiple social media accounts simultaneously, and in one spot.

Here’s my own pearl of wisdom (in 140 characters or less): keep your work and personal accounts separate. If you want your office to have a Twitter account, create one for your office. If you’d like to have a Facebook page for your office, create one, but keep it office-specific. I doubt your clients want to see (and I doubt even more that you want your clients to see) your vacation and New Year’s Eve party photos, your sharing of jokes with old friends, and your pleas for assistance in Farmville. There’s "Private You", and there’s "Work You", and (online, at least), never shall the twain meet.

Twitter is a great place to start and maintain a conversation. Post a link to a news article that is related to your area of practice, then ask an open ended question. Discuss the ramifications of a recent court decision or legislative change by asking your "followers" what they think? The conversation can then take on a life of its own, increasing your web presence by increasing the likelihood that more people will follow you.

This is only a starting point. I haven’t even touched on topics like hashtags, retweets, trending topics or privacy issues, but know only that there is a multi-layered, and very inexpensive, way to get your name, your services, and your reputation communicated to the legal services consumer. It’s easy, it’s cost-effective, and it’s growing every day.

2 txt or not 2 txt

2010-11-15T10:11:00.005-04:00

About five months ago, I gave up my private practice to accept a position as in-house counsel. It posed an interesting challenge, both logistically and professionally. Logistically in the sense that I now had an office full of furniture, files, equipment and knick-knacks that had to be either dispersed or stored, and professionally in that my new employer's industry (mining services) was almost completely foreign to me.

It turns out that both the logistic and professional challenges are proving a bit easier to manage than I had initially thought (which is certainly a relief). However, some new issues are arising in terms of drafting policies that cover the many legal issues facing a publicly-traded, multi-national corporation. Some of those issues are more banal than others, and it helps to get occasional direction from higher courts as to the direction the law is (or will be) taking.

Our Canadian Courts have their share of cases involving the workplace interfacing of employees and technology. Occasionally, however, our American neighbours take the lead in addressing certain issues.

Case in point: on June 17th, the United States Supreme Court (in the case of City of Ontario v. Quon), the court determined that the city of Ontario, California, did not violate the Fourth Amendment (search and seizure) rights of one of its police officers when it went through the contents of his cell phone's text messages. The Court attempted to limit its ruling because of what it perceived to be the ever-quickening pace of the evolution of technology.

I've read that this is the first time the Supreme Court has addressed a public employee's expectation of privacy in the workplace as it relates to text messaging. The City of Ontario had policies in place dealing with employee communications using city resources (in this case, a two-way alpha-numeric pager). While text messages were not specifically dealt with in the policy, the officers were told verbally that they had no "expectation of privacy" when using city resources, as the "pages" were considered by the City to be the same as e-mails, and therefore they could be the subject of an audit. They were also told that personal messages would be permitted, so long as any cost overruns were covered by the employee.

It turns out that Mr. Quon made an "excessive" number of messages on a number of occasions. The police department decided to conduct an audit of Mr. Quon's messages to determine whether the character limit of the City's subscription plan was insufficient for the City's needs, given the frequent over-limit charges.

When the City conducted its audit, it found that Mr. Quon sent 456 messages during work hours in one month, of which no more than 57 were work related. He also sent 80 messages during one single day at work; and on an average workday, he sent or received 28 messages, of which only 3 were apparently related to police business.

Well, it also turns out that Mr. Quon was having an affair with a co-worker. Mr. Quon was married at the time.

Arriving at the issue at hand, the question the Court had to address was whether the City's (initially innocuous) audit constituted a violation of Mr. Quon's expectation of privacy. The Supreme Court determined that it must proceed with great care when considering the whole concept of privacy expectations in communications made on electronic equipment owned by a government employer. It reasoned that "[r]apid changes in the dynamics of communication and information transmission are evident not just in the technology itself but in what society accepts as proper [behaviour]. At present, it is uncertain how workplace norms, and the law's treatment of them, will evolve."

So what should a prudent Canadian employer do?

Section 8 of our Charter of Rights and Freedoms doesn't have the same rigidity as the US Fourth Amendment. In any event, its application is limited to governments, and not private employers. Notwithstanding that (pardon the obscure constitutionally-related pun), employers generally have privacy legislation issues with which they are required to deal.

A prudent employer would have a clear policy on what is - and, more importantly, what is not - permitted while using company resources. Sending work-related text messages and e-mails to co-workers should obviously be acceptable. Setting clear guidelines as to how many "personal" e-mails could be considered acceptable could be a start, but would be a very fine line to have to draw.

A more well-rounded approach might be setting timelines and content rules for what can be sent, browsed or forwarded on company technology resources (i.e., limiting personal e-mails and browsing to lunch hours, and restricting the content to be browsed).

A good, solid warning system should also be spelled out to employees. Verbal warnings, followed by written warnings, followed by dismissals for cause always make for a more solid case to defend when facing a judge who may - or may not - be familiar with all of the new, creative technological means with which one can avoid work.

To Quote The Donald: “You’re Fired”

2010-10-19T10:17:00.002-03:00

My experience in private practice – and from my conversations with other sole practitioners in smaller markets, it was a common one – was that it was, at times, a roller-coaster. Billings were often feast or famine. To compensate, lawyers can develop a thick skin when it comes to dealing with difficult clients. Our tolerance level went up just for the sake of regular billings.

Another experience that I occasionally enjoyed – and again, from my conversations with other sole practitioners, it was a not uncommon one – was that it was good to terminate the relationship when the client was more trouble than he or she was (or could ever be) worth.

Understand, this should not at all be related to the potential monetary value of either the client or the client’s file. This should be a purely sanity-driven exercise. Case in point: I had a client who was a successful entrepreneur. A totally self-made individual: driven, accomplished and, often, a complete bully. The client would think nothing of berating anyone who was perceived as having slighted them or impeded their wishes in any way. This had included a number of other lawyers in town, which was why the client eventually wound up knocking on my door.

Now, I’m no psychologist, and many lawyers have no lessons to take on narcissism, but there comes a time when one can only take so much. Having served as the occasional spear in the client’s arsenal, I was familiar with their tactics. Suffice to say that, after a few years, the repeated nature of the client’s demands and overall approach were beginning to grate.

I was faced with a dilemma. The client had a very successful business. I was an indirect beneficiary of this business’ growth, having been involved in many of its transactions and associated work over the previous few years. The client represented an attractive portion of my annual billings. However, contrary to the usual 80/20 rule (where 80% of one’s problems are caused by 20% of one’s clients), this client exceeded the usual expectations and had become more of a 95/5 rule.

In An Essay on Criticism, Alexander Pope wrote that "A little learning is a dangerous thing; drink deep, or taste not the Pierian spring: there shallow draughts intoxicate the brain, and drinking largely sobers us again." This client was the personification of Pope’s comment. As an example: the client thought themself a skilled author of the traditional demand letter. This was, to be charitable, not exactly the reality. In the client's opinion, if they drafted the letter and I "simply put it on my letterhead", then they would "save money".

No amount of explanation as to the nature of professional reputation or legal technicalities could persuade the client that this was an inappropriate way in which to proceed. In the end, I would usually take the gist of the client's suggestions, correct the grammar, structure and spelling, reword it so that it was at least moderately polite, and then issue the letter in question.

This was merely the tip of the proverbial iceberg. It was getting to the point where the client's practices and reputation were beginning to, in my own view anyway, have an effect on my own professional reputation. I was getting more mindful of an adage that a Provincial Court Judge had expressed to my Bar Admission Course in Alberta years ago: "Your reputation is like your virginity. Once it's lost, it's very difficult to get it back."

I had a choice to make. I could either continue to serve as the client's sword and shield (more often the former), or I could swallow the bitter pill of losing the billings and move on. I chose the pill.

The client made a feeble attempt to convince me to continue representing them (borne more, I think, out of a sense of hubris: of having been "fired" and not having done the "firing"), but they moved on to the next lawyer without much delay.

It was liberating. Far from being a case of losing a valuable client, it was an experience akin to taking a spectacularly-deserved vacation and returning more refreshed than ever imaginable. It was refreshing to speak to clients and not have a looming sense of dread. Yes, the phone was unusually quiet for a little while, but not for long. I was enjoying my practice again.

So, the moral of the story? Don’t be afraid to occasionally trim down the client list and cut out the clients that are far more trouble than they will ever be worth. There are a lot of lawyers out there, yes. But there will always be more clients than lawyers.

You can afford to be choosy. More to the point: you can’t afford not to be.

Printer/Scanner/Copier/Privacy Violator?

2010-06-30T09:48:00.003-03:00

I was a sole practitioner for the last 7 years. Of the main office supply issues that continually crop up, chief among them are (1) paper, and (2) printer cartridges. Now, I'm fortunate in that I don't practice in an area that has huge demands for document production (I'm thinking primarily of the family law/real estate law domains, whose demands for paper keep the forestry industry alive). Nevertheless, I go through a fair amount of paper and cartridges.

Like most small offices, I engaged in the "ink jet vs. laser" debate a number of years ago and, like most small offices, the laser printer eventually won out. Cartridges were still a big issue, but the frequency with which I bought them seemed to diminish. Two years ago, I broke down and leased a digital photocopier. My practice had reached a point where it just made more economic sense to have something fast and cost-effective for copying, scanning and printing documents. I chose a copier with a built-in hard-drive so I could scan my documents to PDF (an enormous time- and money-saver for a moderate techie like me).

With the arrival of the Personal Information Protection and Electronic Documents Act ("PIPEDA"), lawyers have had to consider - in addition to the actual storing of client records for the requisite length of time - the method in which those documents are stored. Storage of the physical file and documents is a given, but electronic storage is also a good plan: ease of access, the ability to search for and build precedent documents - these all make sense in our current electronic age.

Many lawyers wouldn't think twice about securing their computerized documents. Firewalls, anti-virus software and various forms of data protection are ubiquitous. Sure, now that we've scanned all of those documents to our computers, they're safely inside our electronic fortress, right?

Not so fast. What about the digital photocopier?

Like the one in my office, most new digital photocopiers contain a built-in hard-drive. This drive holds add-ons for the copiers' operating system as well as the software used to convert the copied document to PDF and forward it along the network to either the office server or the lawyer's individual computer. What many lawyers may not realize is that it also keeps a copy of the document image. Forever.

I mentioned PIPEDA for a reason: businesses in Canada now have a requirement for a privacy policy. That policy needs to address how, where and why the business will retain clients' private information. The big question is whether that policy addresses what the business will do with the photocopier hard-drive once the lease is up. It should.

A recent CBS News investigation revealed that many used photocopiers are warehoused, cleaned up, and then resold without any effort on the part of either the previous leaseholder or the leasing company to remove the old images from the hard-drive. This raises a number of issues - specifically for lawyers - on the security of their clients' information.

The CBS News investigation found criminal records, medical records, birth certificates, drivers' licenses and electronic reams of private information. The most disturbing fact is that it didn't take sophisticated, expensive software to remove this information. The investigator working with the journalist obtained these documents with the aid of freeware, downloaded off of the internet.

So what's a poor sole practitioner to do? Firstly, a quick e-mail or letter to your photocopier provider would be a good idea. Ask them whether they have a date-wiping policy for old photocopiers and, if so, what is it and can they assure you that it will be used on your photocopier once the lease is up. Secondly, and probably more conveniently, ask whether they have an encryption program that can be uploaded to your photocopier. Encryption programs are readily available and rather inexpensive for the benefit they provide (usually several hundred dollars, but well worth the investment). These programs will digitally encrypt the images contained on your photocopier's hard-drive, rendering them (almost) impossible to view should the drive ever be accessed by a third party in the future.

We live in an age of electronic convenience: computers and their peripheral components have made our office work incredibly simpler and more efficient. However, with every advance in technology, there are always new questions and concerns to be raised. In the case of digital photocopiers, these new questions can be answered with an old adage: “better safe than sorry”.

Conrad Black's Fraud Convictions Overturned

2010-06-24T12:03:00.004-03:00

The U.S. Supreme Court on Thursday overturned three fraud convictions against Montreal-born Conrad Black, and remanded his case back to the Chicago court that sentenced him.

Black's lawyers had challenged the "honest services" fraud law, a contentious addendum to the U.S. federal mail fraud and wire fraud statute that critics argue is too vague and has been used to make a crime out of mistakes, minor transgressions and ethical violations. In 1987, the Supreme Court of the United States ruled in McNally v. United States that the mail fraud and wire fraud statutes pertained strictly to schemes to defraud victims of tangible property, including money. In 1988, the U.S. Congress enacted a new 28-word law that made it illegal for officials, executives and others to scheme to deprive those they serve and possibly others of "the intangible right to honest services."

The jailed former media baron's obstruction of justice conviction remains in place.

To read the CBC News article on this story, please click here.

The Lawyer / Director / Defendant

2010-01-04T18:55:00.003-04:00

Should a lawyer serve on the Board of Directors of a company who is also his/her client?

A recent article in The Law Times asks the question whether a lawyer should serve on the Board of Directors of a client company? The article quotes from a recent decision of the Ontario Superior Court in which a Toronto law firm was named as a defendant in a class action against a Yukon-based oil and gas company.

In the decision, Mr. Justice George Strathy made the statement that “It seems [...] that it is arguable that a lawyer who, through his or her law firm, acts as external corporate counsel to a corporation and who also sits on the corporation’s board, may well be acting in the ordinary course of the law firm’s business when he or she takes a seat at the boardroom table”. One of the questions asked in the litigation is whether the lawyer's law firm could be held liable for his actions while acting as a member of the oil & gas company's Board of Directors.

The decision was one dealing with a procedural issue: whether the case of negligence could and/or should be allowed to continue against the lawyer's firm. The judge's ruling - that the case could continue - was not determinative on the issue of actual negligence. The negligence claim has therefore yet to be proven in Court.

The Law Times article has some very good quotes from experts in the field, as well as a factual background of the issues involved in the class action.

The entire article can be read here.

The full decision of Mr. Justice Strathy can be read here.

OMFG

2009-12-22T09:32:00.004-04:00

There is no adequate summary that I could post to do justice to this man's complete and utter stupidity. And don't even get me started on his lawyer.

The Supreme Court headnote says it all:

The insured had unprotected sex with three women and acquired genital herpes, which in turn caused transverse myelitis, a rare complication of herpes that resulted in total paralysis from his mid-abdomen down. He was aware of the risk of contracting a sexually transmitted disease but did not know that any of the women had genital herpes. He claimed compensation under his group insurance policy which provided coverage for losses sustained “as a direct result of a Critical Disease or resulting directly and independently of all other causes from bodily Injuries occasioned solely through external, violent and accidental means, without negligence” on the insured’s part. The definition of (critical) diseases in the policy does not include transverse myelitis. The insured commenced an action and the parties applied to the British Columbia Supreme Court for a determination of whether his paraplegia qualifies as a “bodily injur[y] occasioned solely through external, violent and accidental means”.

The trial judge answered the question in the affirmative and awarded the insured $200,000.

The Court of Appeal upheld the trial judge’s decision.

Held: The appeal should be allowed.

The insured’s loss is not covered by the policy [MaudeBlawg Editor's Note: Well DUH!!]. The interpretation of insurance policies should avoid unrealistic results that would not have been contemplated by the insured and the insurer when they entered into the policy agreement. The word “accident” is an ordinary word to be interpreted in ordinary language as it would be understood by the average person applying for insurance. That said, the definition of accident has proven, in practice, to be one of the more philosophically complex simple questions.

Traditionally, the courts have carved out of the potential universe of “unlooked‑for mishaps or untoward events which are not expected or designed” the sub‑universe of bodily “infirmit[ies] caused by disease in the ordinary course of events”. Accident insurance is not comprehensive health insurance and it is evident that the parties in this case did not expect the policy to cover all loss or bodily injury. Quite apart from the usual concept of “accident” as itself excluding a bodily infirmity caused by disease in the ordinary course of events, the policy provided separate coverage against the risk of enumerated “critical diseases”. Transverse myelitis is not listed among them.

In ordinary speech “accident” does not include ailments proceeding from natural causes. Genital herpes is a sexually transmitted virus that spreads by sexual intercourse. The causal chain that led to the insured’s bodily injury was sex that transmitted herpes that led to transverse myelitis. Transverse myelitis is an unexpected consequence of genital herpes that occurs rarely but it is a normal incident or consequence of the disease. Since the transmission followed the normal method by which sexually transmitted diseases replicate, the bodily injury proceeded from natural causes.

[...]

Diseases are transferred from person to person through natural processes such as coughing or sneezing in someone’s presence “in the ordinary course of events”. The viruses thus transmitted may, in some situations, prove to have calamitous and unexpected consequences. However if such transmissions were classified as accidents, then an accident policy would become a comprehensive health policy despite the substantially lower premium. On the other hand, the insurance industry cannot use “disease” to extricate itself from valid accident claims. Unlisted diseases or other bodily infirmities might still be covered if attributable to some antecedent event or events that could, together with an unexpected result, be characterized as accidental.

The onus is on the claimant to show that the loss is covered by the policy. However, once the claimant leads evidence sufficient to establish a prima facie case that the bodily injury was caused by an “unlooked for mishap or an untoward event which is not expected or designed”, the tactical burden then shifts to the insurance company to displace the prima facie case by some evidence that the bodily injury is not an accident but its “antithesis”, namely, the result of a disease picked up in the ordinary course of events. The burden of proof however, remains squarely with the plaintiff. If he or she fails to establish on a balance of probabilities that the bodily injury resulted from an accident, the claim will fail. And so it is in this case.

The full Supreme Court of Canada decision can be read here

Double, double, toil and legal trouble

2009-11-30T16:09:00.002-04:00

Woman, accused of defrauding lawyer of over $148,000.00, charged with fraud and witchcraft.

"Double, double toil and trouble. Fire burn, and cauldron bubble". Shakespeare's Macbeth Act 4, scene 1

This one can only be read to be truly appreciated (and believed). The story from the Law Times can be read here

Intel & AMD bury the gavel, er, hatchet

2009-11-12T14:34:00.003-04:00

Bitter chip-making rivals settle their Court battles

Intel and AMD have announced that they've settled their patent and anti-trust disputes, filed by AMD in Delaware in 2005. Intel agreed to pay its primary rival, Advanced Micro Devices, USD$1.25 billion to settle these disputes. The settlement also covers all outstanding such issues between the parties worldwide.

AMD had been the pushing charges that Intel used marketing payments and other tactics to pressure PC and server makers to use its microprocessors instead of those made by AMD. As part of the deal, Intel agreed to abide by a new set of business practices (as yet undisclosed). The two companies will also cross-license each other’s patents for five years.

The joint statement prepared by Intel and AMD can be read here.

The full International Herald Tribune article on the dispute and settlement can be read here.

Radio station fined USD$16M for contest death

2009-10-30T12:16:00.002-03:00

Mother-of-three drank so much water during a contest for a Nintendo Wii that she died.

A California court found Sacramento radio station KDND-FM and its owner liable for the death in January 2007 of mother-of-three Jennifer Strange, 28.

Her family sued after she drank so much water in a contest run by the radio station that she died. The Court awarded them USD$16m (C$17.13m) in compensation. Ms. Strange had taken part in a contest to see who could drink the most water without going to the toilet, in order to win a Nintendo Wii. She lost, and a few hours later died of acute water intoxication.

The contest - "Hold Your Wee for a Wii" - required contestants to drink 225ml bottles of water every 15 minutes without going to the toilet. After eight rounds, contestants then were required to drink 500ml bottles. Ms Strange is believed to have drunk nearly 7.5 litres of water.

During the trial, KDND-FM and its owner, Entercom, argued that she should have known the contest might be dangerous. The organizers of the contest never faced criminal charges, but 10 employees of the radio station were fired following Ms. Strange's death.

A BBC report on the verdict and damages award can be read here.

Thatsa lotta yotta...

2009-10-23T09:49:00.004-03:00

Litigant wants $17,840,000,000,000,000,000,000 for poor customer service.

Dalton Chiscolm has sued Bank of America for 1,784 billion, trillion dollars ($17,840,000,000,000,000,000,000) because he said he was given inconsistent information and his checks had been rejected. He also wants an additional $200,164,000 for what he calls "miscellaneous fees".

The essence of Mr. Chiscolm's claims are that he placed a series of calls to the bank in New York and received "inconsistent information from a 'Spanish woman'" US District Judge Denny Chin wrote. "He apparently alleges that checks have been rejected because of incomplete routing numbers'".

Judge Chin called the lawsuit "incomprehensible". He has given Chiscolm until today (October 23, 2009) to explain his claims, or face dismissal of his case.

By means of comparison, the gross domestic product in the year 2008 - for the entire planet - was $60 trillion ($60,000,000,000,000). So in order to compensate this man, the Earth will have to save its pennies for the next 300,000,000 years.

How much???

The actual number, 1,784,000,000,000,000,000,000, is equal to 1.784 multiplied by 10 to the 24th power, or roughly one followed by 21 zeroes, said Chris Budd, Professor of Applied Mathematics at the University of Bath. Using the International System of Units, this number is called a Yotta. Which is how much exactly? "The Sun," Mr Budd said by explanation, "has the power of a Yotta microwave ovens."

Nokia sues Apple over iPhone

2009-10-22T15:00:00.002-03:00

Nokia says iPhone infringes on its patents covering wireless data, speech coding, security and encryption.

Finnish cell phone company Nokia filed a lawsuit against Apple on Thursday in the Federal District Court of Delaware, alleging that its iPhone infringes on 10 of its patents covering wireless data, speech coding, security and encryption.

Nokia claims that the patented technologies have been used in every iPhone model shipped since it was introduced in 2007. Ikka Rahnasto, vice president of legal and intellectual property at Nokia, stated that "The basic principle in the mobile industry is that those companies who contribute technology development to establish standards create intellectual property, which others then need to compensate for".

Nokia also said it has signed licensing agreements with 40 other companies, allowing them use of the technologies that are cited in its lawsuit against Apple. Rahnasto added that "Apple is also expected to follow this principle. By refusing to agree to appropriate terms for Nokia's intellectual property, Apple is attempting to get a free ride on the back of Nokia's innovation".

Apple did not issue a statement, stating that it does not comment on pending litigation.

Supreme Court strikes down Quebec English schools law

2009-10-22T11:41:00.004-03:00

SCC declares Québec law barring certain students from going to public English-language schools unconstitutional

In a decision that will likely elicit the usual howls of protest from the separatist camp in Québec, the Supreme Court of Canada unanimously struck down the legislation known as "Bill 104", which removed a loophole from the infamous "Bill 101", that effectively barred certain families from sending their children to English-language schools.

In the decision, Nguyen v. Quebec (Education, Recreation and Sports), 2009 SCC 47, the Court found - importantly - that the objectives of the measures adopted by the Quebec National Assembly are sufficiently important and legitimate to justify the limits it placed on the educational rights of its residents, however the means that it chose are not proportional to the objectives.

According to Québec's politicians, the purpose of the restrictions has always been to protect and promote the French language in the Province of Quebec. The Supreme Court found today that although there is what's called a "rational causal connection" between these stated objectives and the 2002 amendments to the Charter of the French language, the means chosen by the National Assembly do not constitute a minimal impairment of the constitutional rights guaranteed by s. 23(2) of the Canadian Charter of Rights and Freedoms.

A nuanced reading of the decision would be in order. However, I expect that the Bloc Québécois and Parti Québécois politicians will bypass this step and immediately proceed to their normal hoots of derision about the oppression of Québeckers. As a native Québecker myself, I would expect more, but alas...

CBC coverage of the decision can be read here.

UPDATE

PQ Leader Pauline Marois tabled a motion today in the Québec National Assembly seeking to "denounce" the Supreme Court of Canada over today's decision.

I'm sure she read and carefully considered all 48 pages of the decision before deciding to "denounce" the entire Court.

Sure she did.

Definitely not some Philadelphia lawyer

2009-09-25T09:16:00.003-03:00

From the Fox TV show The Simpsons:

Lionel Hutz: I move for a bad court thingy.
Judge: You mean a mistrial?
Lionel Hutz: Right!! That's why you're the judge and I'm the... law-talking guy.
Judge: You mean the lawyer?
Lionel Hutz: ...Right.

According to his lawyer, man who hijacked CanJet plane unaware his actions were illegal

Wow.

The lawyer for a Jamaican man, Stephen Fray, 21, who held Canadians hostage last spring aboard a CanJet flight bound for Halifax stated on Friday that his client didn't feel he was doing anything wrong. "I was expecting [the verdict to be] what the law says in a situation like this, that he did not know what he was doing at the time of the incident, he did not believe that it was illegal," Kingston, Jamaica lawyer George Thomas said.

To be fair, Thomas had argued that Fray was delusional and mentally unfit, however the Court found him fit to stand trial.

Fray's trial began September 14, 2009 and yesterday the Judge found him guilty on eight of the 10 gun-related charges, ranging from assault to illegal possession of firearm, illegal possession of ammunition, shooting with intent and two counts of robbery.

Defense attorney George Thomas expressed disappointment in the verdict. The Jamaica Gleaner News wrote that Thomas "seemed listless, shocked and disappointed by the guilty verdict".

Um, yeah, I guess.

Beaverbrook Art Gallery wins appeal

2009-09-09T10:47:00.002-03:00

Appellate Decision final: most paintings will stay in Fredericton, N.B. (from an original article on CBC News)

The Beaverbrook Art Gallery has won the final appeal in its dispute over 85 works of art whose return had been demanded by Lord Beaverbrook's descendents. Originally, the Foundation had demanded the return of 133 works. 48 of those works were returned to the Foundation by the original ruling of former Supreme Court of Canada justice Peter Cory.

The ruling, which was released last night, finally ends a five-year legal battle between the gallery and the U.K.-based Beaverbrook Foundation, which is controlled by the descendents of the first Lord Beaverbrook.

The appeal panel, which was made up of (the former Chief Justice of Saskatchewan) Edward Bayda, (former Associate Chief Justice of Ontario) Coulter Osborne and (former Court of Appeal of British Columbia Justice) Thomas Braidwood, said that Justice Cory's 2007 ruling was reasonable and did not make any mistakes in his original judgment.

As the appeal is final decision, there are no other avenues left for the Beaverbrook Foundation.

The full CBC News article can be read here.

The Beaverbrook Foundation's statement on the appeal can be read here.

US Lawsuit claims Twitter Infringes Patents

2009-08-07T09:47:00.002-03:00

"Mass Notification" is apparently patented. I wonder if they hold the "soap box" patent also.

(from an article written by David Kravets on wired.com)

A recent federal lawsuit filed by TechRadium, a Texas-based technology company (whose website suggests they are the "industry leader in mass notification") claims that Twitter's web services breach its patents, and they are also claiming for damages and licensing fees.

In its lawsuit, TechRadium claims it has patents to the concept of "mass notification", and that the practice of "tweeting" infringes on three of its patents.

The lawsuit states: "To the fullest extent permitted by law, plaintiff seeks recovery of damages for lost profits, reasonable royalties, unjust enrichment, and benefits received by the defendant as a result of use [of] the misappropriated technology, and any other damages to which it may be entitled in law or in equity".

According to internal Twitter documents disclosed by the website TechCrunch last month, the social networking company is concerned that it might be the subject of patent infringement lawsuits. One of these documents apparently stated that Twitter "will be sued for patent infringement, repeatedly and often" The document also said, "Should we get a great patent attorney to proactively go after these patents (We need to talk about this more, we are unsatisfied)".

Disclosure of such thoughts normally falls under the "Oops" category...

The entire Wired.com article can be read here

Update: Livent founders Drabinsky and Gottlieb sentenced to prison

2009-08-05T12:56:00.002-03:00

The founders of Livent,Garth Drabinsky and Myron Gottlieb, have been sentenced to jail for defrauding investors. Drabinsky was sentenced to seven years in prison for fraud and Gottlieb was sentenced to six.

As posted here previously, they were convicted in March 2009 of two counts each of fraud and one count of forgery.

Justice Mary Lou Benotto of the Ontario Superior Court of Justice today sentenced Drabinsky to four years on one charge and seven years on another, with those sentences to be served concurrently, or simultaneously. Gottlieb received four years on one count of fraud, and six years on the second, also to be served concurrently.

"No one is above the law," Madame Justice Benotto said in her decision. "No one gets to write their own rules." Justice Benotto had earlier found that Drabinsky and Gottlieb had "systemically manipulated the books" at Livent during the mid-'90s. In their unsuccessful defence, Drabinsky and Gottlieb had argued that the fraud was led by employees who manipulated the company's financial statements without the knowledge of either of the two men.

The two also face a fraud indictment in New York (from 1998) as well as regulatory charges filed by the Ontario Securities Commission, which have yet to proceed to a full hearing.

Facebook needs to improve privacy practices, Privacy Commissioner investigation finds

2009-07-16T10:45:00.002-03:00

More than 1 in 3 Canadians is on Facebook

In order to comply with Canadian privacy law, Facebook must take greater responsibility for the personal information in its care, the Privacy Commissioner of Canada said this morning (July 16, 2009) in a news release announcing the results of an investigation into the popular social networking site's privacy policies and practices.

"It’s clear that privacy issues are top of mind for Facebook, and yet we found serious privacy gaps in the way the site operates," says Privacy Commissioner Jennifer Stoddart.

The investigation, prompted by a complaint from the Canadian Internet Policy and Public Interest Clinic, identified several areas where Facebook needs to better address privacy issues and bring its practices in line with Canadian privacy law.

An overarching concern was that, although Facebook provides information about its privacy practices, it is often confusing or incomplete. For example, the "account settings" page describes how to deactivate accounts, but not how to delete them, which actually removes personal data from Facebook's servers.

The Privacy Commissioner's report recommends more transparency, to ensure that the social networking site’s nearly 12 million Canadian users have the information they need to make meaningful decisions about how widely they share personal information.

Read the full release here

So much for reasonable apprehension of bias

2009-06-26T15:35:00.002-03:00

A Swedish appeal court has ruled that the fact that the judge in the Pirate Bay trial was a member of certain associations (that were advocating for the Pirate Bay founders' conviction) was perfectly reasonable.

The Svea Court of Appeal said the Trial Judge should have declared that he was a member of the Swedish Association for the Protection of Industrial Property and the Swedish Copyright Association before the case went to trial. However, the fact that "he failed to shed light on this does not however mean that there was any wrongdoing during the proceedings that would require a retrial," said the court in a statement.

"This was not a case of bias," concluded the court.

No appeal is allowed against the this appeal court's judgment.

I wonder how that Court defines "bias" if this, in their view, is not bias.

I strongly doubt that a North American court would have come to the same conclusion.

The BBC article on this ruling can be read here.

Lack of coffee violates human rights. Um...what?

2009-06-16T10:32:00.003-03:00

For those of you unfamiliar with Atlantic Canada, Tim Hortons is a Canadian coffee franchise that is less of a restaurant than it is a national icon. Think Starbucks, but for the working man and woman.

Atlantic Canadians tend to zealously seek out their "Timmy's" coffee. As a Montrealer who is now a transplanted Atlantic Canadian, I view this behaviour as a curiosity, yet I have a certain sympathy, being a coffee snob myself.

So, case in point: a gentleman from Lower Sackville, Nova Scotia has decided to make a complaint to the Nova Scotia Human Rights Commission because he can no longer get his coffee from the local Tim Hortons drive-thru.

You read that correctly: his inability to go through the drive-thru is, in his view, a violation of his human rights.

Now, before dismissing this out of hand, understand that this man - Dave Matthews - needs a motorized scooter to get around because of a physical disability. Mr. Matthews was accustomed to getting his coffee at the local Tim Hortons drive-thru. But when he went to a new location, in Bedford, Nova Scotia, he encountered some resistance.

The employee wouldn't serve him because of a Tim Hortons policy banning pedestrians, bicycles, and wheelchairs (whose definition apparently includes motorized scooters), from using the drive-thru. Mr. Matthews interprets this as a refusal to sell him coffee, as he can't get his scooter through the front door of the restaurant.

He views this as a matter of human rights. He claims he should be able to use the drive-thru.

A Tim Hortons spokesman has replied that it's a question of security: it's too dangerous for scooters in the drive-thru because sometimes automobiles drive quickly while leaving the drive-thru window.

I will be very interested to see how - or if - the Nova Scotia Human Rights Commission deals with this issue. The Commission publishes its decisions online, so if there's any published result to this, you can be sure to read about it here.

Supreme Court of Canada restores murder conviction

2009-06-12T11:31:00.006-03:00

The Reena Virk murder case has now reached its final conclusion, almost 12 years after her murder.

The Supreme Court of Canada today restored the 2nd degree murder conviction of Kelly Ellard in the November 1997 death of Virk.

Reena Virk was 14 years old when she was beaten and drowned in a Victoria park in November 1997 by a group of teenagers. Kelly Ellard, who was 15 at the time of the murder, was convicted of 2nd degree murder 9 years ago, but that decision was set aside on appeal and a second trial ordered.

That trial (in 2004) ended in a deadlocked jury, and a mistrial was declared.

At her third trial on the Virk murder charge, Ellard was again found guilty of 2nd degree murder in 2005.

That verdict was overturned after the British Columbia Court of Appeal ruled the trial judge did not properly instruct the jury with regard to prior consistent statements made by certain witnesses.

The Crown appealed that ruling to the Supreme Court of Canada, which heard arguments in April of this year.

In an 8-1 decision, the Supreme Court overturned the B.C. Court of Appeal's decision and restored Ellard's conviction. Madam Justice Rosalie Abella, writing for the majority, found that while prior consistent statements are presumptively inadmissible (as this can lead to what is referred to as "bootstrapping", or bolstering the credibility of a witness), there is an exception if a party has made an allegation of "recent fabrication".

In this case, the statements on which the witness was re‑examined did not fit within this exception since they were not made before any of the circumstances the defence argued were responsible for the witness’s changed memory, namely the atmosphere of rumour and speculation following the murder.

The Court found that the trial judge therefore made an error in ruling that the re‑examination was permissible. However, the majority ruled that there was no reasonable possibility that the error had any impact on the verdict. Justice Abella ruled, since the statements had no such value (to bolster the witness’s credibility), that there was no risk of the jury using them to draw inferences that would be impermissible at law.

Ellard's 2nd degree murder conviction now stands.

The Supreme Court's judgment (R. v. Ellard, 2009 SCC 27) can be read here.

Timeline of the Reena Virk case:

November 1997 - Reena Virk murdered

March 9, 2000 - Kelly Ellard's first trial begins

March 31, 2000 - Ellard is convicted of 2nd degree murder.

April 21, 2000 - Ellard given a life sentence, with no chance of parole for 5 years.

Feb. 4, 2003 - BC Court of Appeal overturns Ellard's conviction and orders a new trial

June 14, 2004 - Ellard's 2nd trial begins

July 18, 2004 - A mistrial declared when the jury informs the Trial Judge that they are deadlocked

Feb. 21, 2005 - Ellard's 3rd trial begins

April 12, 2005 - Ellard is again convicted of 2nd degree murder.

July 7, 2005 - Ellard is given a lLife sentence, with no chance of parole for 7 years.

Sept. 5, 2008 - The BC Court of Appeal overturns Ellard's 2nd conviction and orders a new (which would have been her fourth) trial

Jan. 12, 2009 - The Supreme Court of Canada grants leave to the Crown to appeal the decision of the BC Court of Appeal

March 19, 2009 - Ellard is denied bail pending the Crown's appeal to the Supreme Court of Canada, and must remain in prison

June 12, 2009 - The Supreme Court of Canada overturns the BC Court of Appeal decision and restores Ellard's 2nd degree murder conviction

Canada's Supreme Court reaffirms right to a speedy trial

2009-06-04T15:33:00.002-03:00

- Sorry for the delay between blog posts, folks, been a bit of a hectic month.

Canada's Supreme Court today reaffirmed an accused's right to a speedy trial. In what's sure to be a controversial (and universally misinterpreted by the mainstream media) decision, the Supreme Court overturned an Ontario Court of Appeal decision and stayed the proceedings against a man accused of sexual assault.

The victim in this case alleged that she was abducted and sexually assaulted by her ex-boyfriend. She testified that when she left work one evening in May 2005, she was surprised to find the accused, her ex-boyfriend, waiting for her in his car in the parking lot. He convinced her to get into the car but she testified that he became threatening and violent after she did. The inside door handle of the car was not working, preventing her from leaving the vehicle.

According to her testimony, the accused started to drive, hitting her on the head and choking her as he did so. He then stopped the car and, when she refused to perform oral sex on him, he forcibly removed her clothes and sexually assaulted her including, according to her testimony, forced vaginal penetration. After threatening her and her loved ones with death should she tell the police, she said the accused then drove her back to her workplace.

The next day, the victim went to the hospital and was examined and interviewed. The examination did not produce any physical evidence corroborating the her allegations that she had been hit on the head and choked.

Before taking a semen swab, the nurse asked her a series of questions and filled out a questionnaire. In response to a question about the “date and time of last previous intercourse”, her response was that it was three days prior to the assault by the accused.

A forensic evidence report was only provided to the defence only four days before the trial (which was initially scheduled to take place in February 2006). The information contained in the report was extremely important to the Defence.

As a result of the last-minute disclosure (which was not the Crown's fault), the trial was then delayed.

The Crown and the Defence agreed to change the "election" of the Court venue (moving it to a Superior Court to allow for a preliminary inquiry). However, this delayed matters until September 2006 (then, 16 months after the event). Defence counsel asked for an earlier date, providing over 30 alternate dates to the Crown, but he never received a response from the Crown for this request.

On the day of the preliminary inquiry, the hearing was postponed.

The new date was in February 2007, 21 months after charges were laid.

At the preliminary inquiry, the details of the forensic report showed that the analysis concluded that the DNA profile of the semen obtained from the medical examination of the complainant did not match the accused. This, of course, is a potentially grave problem for the prosecution. The victim testified at the preliminary inquiry that if the semen did not match the accused’s (her ex-boyfriend's) DNA, then the source of the semen must have been her (current) boyfriend.

She couldn't remember when they (she and her current boyfriend) last had intercourse before the assault, but said she knew that they had not had intercourse between the time of the assault and the taking of the swabs. According to the forensic reports, the semen had been present for at most 24 hours before the sample was taken.

As a result, this forensic evidence could be vitally important to the defence because it was potentially inconsistent with the victim's statement at the hospital that she had not had intercourse for three days before the alleged assault.

Given the possible inconsistencies between the victim's statement and the forensic evidence, the Crown quite properly did not question the potential importance of the evidence or attempt to force the trial on notwithstanding its last-minute disclosure.

Notwithstanding this, the accused was committed for trial following the preliminary inquiry. This is not at all surprising given that the evidentiary threshold for committal is quite low.

Trial was scheduled for November 2007, 2 and 1/2 years after the charges were laid.

In June 2007, the trial judge stayed the proceedings for unreasonable delay. The Ontario Court of Appeal overturned this decision.

The Supreme Court today ruled that the trial judge was correct. Mr. Justice Cromwell, writing for the unanimous court, ruled:

"This was not a complex case. A delay of 30 months in bringing it to trial is striking, given that the delay was virtually entirely attributable to the Crown or institutional delay and was largely unexplained. Critical evidence was disclosed some nine months after the tests which produced it, the appellant’s request for earlier dates was ignored, and when the case was clearly in s. 11(b) [of the Charter of Rights and Freedoms] trouble, the matter was not proceeded with on the date set for the long-awaited preliminary hearing. The length of the delay and the evidence supported the trial judge’s inference that some prejudice to the appellant resulted from the delay.

As McLachlin J. (as she then was) put it in her concurring reasons in Morin, at p. 810, “[w]hen trials are delayed, justice may be denied. Witnesses forget, witnesses disappear. The quality of evidence may deteriorate. Accused persons may find their liberty and security limited much longer than necessary or justifiable. Such delays are of consequence not only to the accused, but may affect the public interest in the prompt and fair administration of justice.”

Of course, there is a strong societal interest in having serious charges tried on their merits. However, the progress of this case was delayed to such a degree that the appellant’s constitutional right to be tried within a reasonable time was violated. In my respectful opinion, the Court of Appeal erred in reversing the trial judge’s conclusion to that effect.

The entire Supreme Court of Canada decision can be read here.

A little knowledge (and an active Facebook account) can be dangerous

2009-05-11T10:00:00.004-03:00

"A little learning is a dangerous thing; drink deep, or taste not the Pierian spring: there shallow draughts intoxicate the brain, and drinking largely sobers us again."

- Alexander Pope, An Essay on Criticism (1709)

Ideally, when one is injured in an accident, one seeks medical attention. If the accident is the result of someone's negligence, one should consider seeking legal advice as well.

Being informed before you speak to a doctor or a lawyer isn't a bad idea. Being a little too informed, without having the proper training or education to filter all this new information, can be a really bad idea.

A gentleman in Newfoundland & Labrador was injured in two motor vehicle accidents (one in 2001 and the other in 2003). He had apparently been diagnosed (prior to the accidents) with a condition known as "thoracic outlet syndrome". He worked as a mechanic.

He seemed to be progressing normally through his rehabilitation following the accidents, but when he was referred to a thoracic surgeon for a consultation, he showed up "with a folder about four inches thick containing information he had accessed on the internet concerning thoracic outlet syndrome".

At the risk of sounding ironically self-deprecating, everyone knows that all information found on the internet must be true, right?

Another thoracic surgeon who saw the gentleman in question found that he was "extremely knowledgeable regarding musculo-skeletal disorders". I suppose the phrase that was left out of the doctor's findings was "for a mechanic".

The liability for both accidents had been admitted by the Defendants. All that remained to be determined at Trial was the extent of damages, and how much the Plaintiff should recover for both "pain and suffering" and loss of income. "Pain and suffering" damage awards in Canada are considerably lower than they are in the United States, and loss of income damages are specifically quantified (usually by tax returns and actuarial reports).

A major issue in determining "pain and suffering" is the evidence of the plaintiff: how much of an impact has the accident had on his quality of life. To establish this evidence, the plaintiff will usually have to explain this on his or her own. This opens up the plaintiff to a determination of his or her credibility.

In ruling on the gentleman's credibility in this case, the Trial Judge began by stating that he found that the plaintiff "significantly exaggerated the alleged affects of the injuries on his life".

This isn't a good start.

The plaintiff had also claimed that his social life had been severely curtailed by the effects of the motor vehicle accidents. He said he was no longer able to play pool with his friends and he essentially had little or no social life, except the occasional weekend outing.

And here's where the new "Facebook Defence" comes into play. Two paragraphs from the Judge's decision speak for themselves:

While not getting into the details of these excerpts, they convince me that [the Plaintiff] (at least in the few months just prior to his testimony in Court recorded on Facebook) had a rather full and active social life. He went to and hosted parties, attended weekend outings at summer cabins, drank alcohol frequently, smoked marijuana daily and appeared to have a number of friends with whom he communicated and socialized on a regular basis. I find it incredible that [the Plaintiff]’s social life miraculously improved in the few months he was communicating on Facebook and that for the remainder of the time from 2001 to 2007 he essentially had no or little social life.

Without this evidence, I would have been left with a very different impression of [the Plaintiff]’s social life. He admitted as much in cross-examination. After he was confronted with this information which is publicly accessible, he shut down his Facebook account saying he did it because he didn’t want "any incriminating information" in Court. I draw an adverse inference against [the Plaintiff] on account of this statement and conclude that the Facebook account which he shut down and some particular messages which he deleted prior to shutting down the account entirely contained information which would have damaged his claim.

Wow. That's what you want to admit under oath in your own Court case: that you deleted something because you "didn't want any incriminating information" to get out in Court.

The plaintiff had sued for damages for Past Loss of Income, Loss of Future Earning Capacity, Loss of Housekeeping Capacity, Cost of Future Care, Cost of Retraining and Cost of Home Gym. The damages he was seeking could have totaled well over $1 000 000.00. All of these claims were dismissed. He was awarded nothing.

He did however receive a little over 25% of the damages he was requesting for "pain and suffering". The partying, drinking and pot-smoking - not to mention the recording of same on Facebook - probably didn't help too much there either.

The lesson to be learned here is that, if you're truly injured, you should follow the advice of your doctors and lawyers (as the case may be). It can be helpful to be independently informed, but there's a reason doctors and lawyers go to school for as long as they do.

If we could learn all of the required knowledge to be a doctor or a lawyer from a few hours spent surfing on the internet, we wouldn't need to have all of those medical and law schools now, would we?

The case, Terry v. Mullowney & Terry v. Sinclair, 2009 NLTD 56 (CanLII), can be viewed here.

Sweet, Sweet Justice

2009-05-06T12:29:00.002-03:00

Say what you will about the Justice not being blind, but I always have faith that things work themselves out in the end.

Case in point: a speed camera executive had a taste of his own medicine on Wednesday, May 5, 2009 when he was banned from the road for driving at more than 100 mph (165 km/h) on a 70mph highway.

Tom Riall, a chief executive of Serco, which has installed about 5 000 traffic cameras in the UK, was caught by a police patrol car in Newmarket, England. He was recorded driving at almost 103 mph in a Volvo.

He was fined £300 (around CDN$530) and banned from driving for six months.

Pirate Bay Judge has ties to copyright-protection groups

2009-04-23T13:18:00.003-03:00

In what would charitably be called a judicial "oops" moment, the Judge who presided over the trial and conviction of four people associated with the file-sharing site Pirate Bay has admitted to having ties to organizations advocating copyright protection.

Judge Tomas Norström confirmed Swedish Radio reports that he was a member of two copyright-protection organizations, acknowledging that he was a member of the Swedish Association for Copyright and sat on the board of the Swedish Association for the Protection of Industrial Property.

However, he rejected the notion that there was any conflict of interest. "I don't think there are any circumstances that have made me biased in this case," Judge Norstöm said.

As I have said previously in this blog (albeit under different circumstances): Dude. Seriously?

The funny thing about conflict of interest in the judicial system is that it is almost always in the eye of the beholder. No matter how unbiased Judge Norstrom believes he may have been (and quite likely was), it's the appearance of the conflict that puts the entire trial in a bad light.

You don't ask the chef to write his own restaurant review. By the same token, you don't ask a member of two copyright protection organizations to preside over what is supposed to be the fair and impartial trial of people accused of copyright violations.

The Pirate Bay defendants are appealing their conviction. In light of this new information, they will almost certainly be granted a new trial.

Here the CBC article discussing the revelations about the Judge, and a slightly more detailed piece from English-language Swedish newspaper "The Local".

Pirate Bay founders jailed for a year

2009-04-17T08:18:00.003-03:00

From CNN this morning: Four jailed in landmark Web piracy case

The founders and one patron of the file-sharing site Pirate Bay have been jailed by a Swedish Court for one year for collaborating to violate copyright law

Looks like Dreamworks - who the founders labeled as "morons" in a response to their demand to remove copyright material from the Pirate Bay system - has the last laugh on this one.

There's a great summary, including video from one of the founders of Pirate Bay, on the BBC World website, which can be reached here.

A new take on Charles Dickens

2009-04-14T12:26:00.003-03:00

"...the law is [an] ass — a idiot. If that’s the eye of the law, the law is a bachelor; and the worst I wish the law is that his eye may be opened by experience—by experience."

- Mr. Bumble, Oliver Twist (by Charles Dickens)

Somehow I doubt Mr. Bumble had this in mind. When faced with a tough legal challenge, a law academic should be able to strip away anything superficial and quickly get to the bottom of the matter.

Megumi Ogawa, a lecturer in law, did that unconventionally when representing herself in an Australian trial recently. Unimpressed by the prosecution’s case against her, she lowered her trousers and bared her buttocks at the judge.

For presenting her rebuttal in that way, she was given a predictably poor mark and jailed for four months for contempt by the Brisbane District Court.

Ogawa, who had lectured in law at the Southern Cross University in Lismore, New South Wales, was on trial for two counts of using a carriage service (the telephone system or internet) to harass and to threaten to kill two court officials. During a long conflict with the court system she had sent 83 emails and made 176 calls to court staff.

During the preliminary proceedings, Ogawa sacked a series of lawyers before deciding to represent herself. Then, during the trial, she was forcibly removed from the court several times for sustained high-pitched screaming, making statements calculated to bring the justice system into disrepute and violent wrestling with security officers.

Her law lectures must have been lively events.

Ogawa was convicted of the harassment and death threat charges and sentenced to six months in jail in addition to the four months for contempt. She had to be held down in the dock by three security officers when being told by the judge of her sentence.

From Professor Gary Slapper, Director of the Centre for Law at The Open University, in his column for the Times of London

Update on the BC political gag law

2009-03-26T22:24:00.003-03:00

As a bit of a follow-up to my blog posting on the BC election gag law: the online advertisement about the BC Premier "eating children" can be seen here.

For some reason, I don't think the editorial content is the only reason this ad never made it to TV. The production value is... well... have a look and judge for yourselves.

Drabinsky, Gottlieb found guilty of fraud and forgery in Livent trial

2009-03-25T11:47:00.005-03:00

Garth Drabinsky and Myron Gottlieb, co-founders of the now-defunct production company Livent Inc., were convicted on fraud and forgery charges in Toronto today for misstating the company's financial statements between 1993 and 1998.

At the end of one of Canada's most prominent fraud cases, Madam Justice Mary Lou Benotto of the Ontario Superior Court delivered her verdict this morning in a Toronto courtroom, finding the two men guilty of fraud for misstating the financial statements of their private company at the time it went public on the Toronto Stock Exchange in 1993 and guilty of misstating quarterly and annual financial statements between 1993 and 1998.

Both Drabinsky and Gottlieb were accused of lying about Livent's financial health in a bid to attract investors' cash. The verdict marks the end of an almost year-long trial in the case, involves two of the best-known members of Toronto's small entertainment community. It is also one of the few convictions in cases arising from Canada's largest corporate scandals.

John Gray, of Canadian Business Online, maintained a great blog of the trial which can be read here.

The maximum penalty (as it was in 1998, when the offences occurred) is 10 years in jail on a fraud conviction and 14 years for a forgery conviction.

The story on the CBC Website (which includes video), can be read here.

Far more details of the offences and the trial are available in a Globe and Mail article, which can be read here.

NY Attorney General says $50 Million of A.I.G. bonuses will be repaid

2009-03-25T11:03:00.002-03:00

The New York State attorney general, Andrew M. Cuomo, said on Monday that he had persuaded nine of the top 10 bonus recipients at the American International Group to give the bonus money back, while the United States Senate has retreated on plans to tax such bonuses.

Mr. Cuomo said he was working his way down a list of A.I.G. employees, ranked by the size of their bonuses, and had already won commitments to pay back $50 million out of the total $165 million awarded this month. But in a reversal of the stand he took last week, he said he did not intend to release any names to the public.

"If the person returns the money, I don’t think there’s a public interest in releasing the names," Mr. Cuomo said in a conference call with reporters.

You can read the entire New York Times story here.

Can't legally make a political ad? Consider a smear instead...

2009-03-23T09:54:00.002-03:00

The government of British Columbia, Canada's 3rd most populous province, is currently involved in an election campaign.

For those of you unfamiliar with BC, it's on Canada's west coast, and is sometimes referred to by the rest of the country as "British California". It has an eclectic mix of left-wingers and conservatives, is heavily unionized, and its provincial politics has (sometimes too) often descended into political theatre.

The government has decided to introduce a law limiting the ability of groups, other than political parties, of producing advertisements that promote or oppose a political party or candidate, or "an issue with which a registered political party or candidate is associated." The Attorney General defends the law, arguing that it was needed to prevent well-financed third parties from hijacking the electoral process. In past election campaigns, the big non-political party spenders have been business groups attacking the New Democratic Party (the main social-democratic political party) and trade unions attacking the Liberals (the main centrist/conservative party).

So, in true BC "politics as theatre" fashion, a trade union has decided to produce and publicize an ad saying that the Liberal Premier (head of government) eats children and tries to attack grandmothers.

A recent news article on this topic can be read here.

While BC politics may not be the most inspiring example of what the political process should represent, at least it's never boring.

We've done it Scotty!

2009-03-18T14:24:00.003-03:00

Now I know this has nothing to do with law and everything to do with Star Trek, but it's my blog and I'll be a dork if I want to.

It seems that, a few centuries before Star Trek takes place, and 23 years after Star Trek IV, scientists have come up with an opaque version of "transparent aluminum". The opaque titanium and zirconium "glass" is apparently stronger than steel. You can read about it here.

Like I said, not much law-related about this, but give us lawyers a little while, and we'll come up with some legal argument to make about it one way or another.

Dude. Seriously?

2009-03-17T14:28:00.003-03:00

Some of you may have heard of the case of Roy L. Pearson Jr.'s lost pants. Mr. Pearson claims that his dry cleaner (in Washington, D.C.) lost a pair of his pants. Pants must be expensive in Washington because he sued his dry cleaner for $54 million.Now, I know that some of you may think that $54 million seems high for a mere pair of pants. However Mr. Pearson's claim was not merely for the loss of his pants.

At first, he claimed that the pants (that were part of a suit) were lost. He initially demanded the cost of replacing the suit, around $1 000.00. When his dry cleaner produced the pair of pants in question, Mr. Pearson then claimed that the pants were not his. Negotiations ensued, and Mr. Pearson even rejected a settlement offer of $12 000.00 (which could, one presumes, buy a fair amount of pants).

He then sued for $67 million. This was then reduced to $54 million around the time of trial.

He quantified the $54 million sum as $500 000 in lawyer's fees (even though he represented himself), $2 million for "discomfort, inconvenience, and mental distress" (they must've been some really nice pants), and $15 000, which he claimed would be the cost to rent a car every weekend to drive to another dry cleaning service. I guess the bus and taxi services in Washington aren't up to his standards).

Now, where do the other $51+ million come in? You see, Mr. Pearson claimed that the dry cleaners had signs in their store indicating "satisfaction guaranteed" and "same day service". When Mr. Pearson wasn't satisfied (and didn't receive his pants), he determined that the dry cleaners were in violation of the Washington D.C. Consumer Protection Procedures Act (or CPPA), which provides for a $1 500 in statutory minimum damages for a violation of that Act. Mr. Pearson felt that, due to his dissatisfaction and missing pants occurring over a four-year period, there were multiple violations of that Act, around 14 400 in all. So he felt that each violation merited damages of $1 500. Oh, and as there were 3 owners of the dry cleaners, they EACH were to be responsible for these damages. So it was to be 14 400 x 1 500 x 3, or $64.8 million.

Yes, you read that correctly.

The Trial Judge, in a well-written decision, dismissed the claim. She found that "the plaintiff is not entitled to any relief whatsoever on his claims under the CPPA, Counts One and Four of his Amended Complaint. The Court’s analysis of the plaintiff’s CPPA claims applies as well to his claims of common law fraud in Count Two of the Amended Complaint. The plaintiff acknowledges that he is required to prove those claims by clear, convincing and unequivocal evidence. He has not proven those claims by a preponderance of the evidence, let alone by that higher standard." Her entire decision can be read here.

As would do any soundly chastised, unsuccessful litigant, Mr. Pearson asked the Court to reconsider. The Court said no.

So, as a now-two-time-loser, Mr. Pearson appealed. The procedure in Washington is that he asks a 3-judge panel of the District of Columbia Court of Appeals to review the decision. The panel did so and, in December 2008, unanimously rejected his appeal, and affirmed the Trial Judge's decision. That decision can be read here.

Mr. Pearson, undeterred, requested that the full, nine-judge panel of the Court of Appeals review the Trial Judge's decision. On March 2, 2009, the Court of Appeals denied his request to have a second appeals hearing before the entire nine-judge panel.

One other little tidbit: Mr. Pearson was actually an Administrative Law Judge at the time of this whole affair. The public outcry against the outrageous damages that he was seeking was so overwhelmingly negative, that the District of Columbia effectively removed him from his post.

Mr. Pearson's final option in his lost pants crusade is to now request a hearing before the U.S. Supreme Court.

Dude. Give it up. They're just pants. If you haven't yet realized that you're the poster child for abusive litigation, I don't know what else could possibly convince you.

New Brunswick Court of Appeal finds MLA interfered with tribunal

2009-03-16T11:22:00.002-03:00

The New Brunswick Court of Appeal has overturned a decision of the Appeals Tribunal of the Workplace Health, Safety and Compensation Commission (now WorkSafe NB) that originally favoured an injured worker, citing inappropriate political interference by a Liberal Member of the New Brunswick Legislature (MLA).

The Workplace Health, Safety and Compensation Commission decision first sided with a woman who suffered a work-related injury while she was working at Fundy Linen, a non-profit organization that provides laundry service.

However the New Brunswick Court of Appeal ruled on February 26, 2009 that Saint John Lancaster Liberal MLA Abel LeBlanc, while serving as a witness in the case, tried to influence an impartial tribunal of the commission. Mr. Justice Joseph Robertson, writing for the Court, found that:

...the allegation of bias based on a lack of structural independence of the Appeals Tribunal has been established. As a matter of law, the MLA should not have appeared before the Appeals Tribunal. Moreover, even though the MLA might not have been able to anticipate the extension of the legal rule established in Chipman Wood Products (1973) Ltd. v. Thompson, et al. [reported in (1996), 181 N.B.R. (2d) 386 (C.A.)], his representations before the Appeals Tribunal were made as a misguided advocate and not as an impartial witness. Therefore, the Tribunal’s decision cannot stand.

The full text of the Court of Appeal's decision can be read here

Bernard Madoff pleads guilty, says "sorry"

2009-03-12T16:08:00.004-03:00

Bernard Madoff today plead guilty to establishing and operating what he now admits he knew was a Ponzi scheme. He faces spending the rest of his life in prison.

He admitted in Court today that he was "sorry".

"Sorry".

The man knowingly and willingly defrauds thousands and thousands of people of their money and, in some cases, nearly all of their money, lives what by most standards would be an incredibly lavish lifestyle (possibly with the proceeds of his Ponzi scheme, but no one knows at this point) and, if he is to be believed, manages to single-handedly cause the loss of well over 50 billion dollars.

50 billion dollars, stacked in crisp, new $1,000 US bills, would form a pile a little over 7 miles (11.36km) high. If you spent $1,000,000.00 a day, it would take you 137 years to spend that money.

And the man says "Sorry". It's a wonder he didn't add "My bad".

Defendant's Solicitor has requested to add you as friend on Facebook

2009-03-10T10:18:00.002-03:00

A Judge of the Ontario Superior Court has allowed disclosure and a cross-examination on an injury plaintiff’s Facebook page. The Judge ordered that pictures which could document the post-accident activities of the plaintiff should be disclosed to the defendant. A previous order declining this request was overturned by the judge, who stated that allowing the plaintiff to "hide behind self-set privacy controls on [Facebook], the primary purpose of which is to enable people to share information about how they lead their social lives, risks depriving the [defendant] of access to material that may be relevant to ensuring a fair trial", and that Facebook postings are documents that must be produced if they related to any matter at issue in the trial.

The full text of the decision can be read here.

Judge allows reporter to use Twitter at gang trial

2009-03-06T13:39:00.002-04:00

An American judge has agreed to allow a reporter to update his readers via Twitter during a gang trial.

This would be a great compromise for Canadian trial Courts, who have been understandably reluctant to allow their proceedings to be televised. It's a good way to get the information out on an almost-immediate basis, without all of the showmanship and melodrama that you tend to see in some of the American trials that are televised.

The CBC news piece can be read here.

International Criminal Court

2009-03-06T10:48:00.002-04:00

Just read this really informative Q&A page on the BBC News website all about the International Criminal Court in the Hague.

Check it out:Q&A: International Criminal Court

Whattya mean I can't work around here?

2009-03-05T14:25:00.003-04:00

So you've bought a business, or someone else's business, and the papers and agreements have all been drawn up, and your lawyer puts in a clause saying that the vendor can't work in any competing business, for a certain period of time, over a certain geographic area. Nice, clean and safe, right?

Not so fast. While these clauses (called "restrictive covenants") are typical, they can also lead to a great number of complications. What kind of business can be defined as "competing"? What's an appropriate time period for the restriction to last? How big (or small) should the geographic area be?

The Supreme Court of Canada recently rendered a decision where the restriction was to apply to the "Metropolitan City of Vancouver". The Court found that this was too vague.

In Shafron v. KRG Insurance Brokers (Western) Inc., 2009 SCC 6, the Court was reviewing a decision of the BC Court of Appeal. At the original trial, the judge had dismissed the action, making a finding that the term "Metropolitan City of Vancouver" was neither clear, certain nor reasonable in the circumstances.

The Court of Appeal had overturned that decision. While they agreed that the term "Metropolitan City of Vancouver" was ambiguous, they applied the doctrine of "notional severance" and then determined that the term "Metropolitan City of Vancouver" should mean the "City of Vancouver, the University of British Columbia endowment lands, Richmond and Burnaby" (So North Van, Burnaby, Delta: you guys don't count, apparently).

"Notional Severance" is when a Court will, in essence, re-interpret a particular clause and then rewrite it so that it makes some or more sense in the circumstances.

The Supreme Court wasn't too keen on that approach. They decided that notional severance is not an appropriate mechanism to cure a defective clause such as this one. It would normally be appropriate where an “objective bright line test” (basically, a clearly-defined rule standard which leaves little or no room for varying interpretation) exists to distinguish what’s legal from what’s not. The Court stated that there’s no “objective bright-line test” for reasonableness, and by applying “notional severance” to the clause in this case, the Court of Appeal was simply rewriting the clause in a manner that it subjectively considered reasonable. They found that Court of Appeal should not have attempted to resolve the ambiguity in this case by reading down the restrictive covenant according to its own notion of reasonableness and what it thought that the parties might have intended.

The Court held that what’s known as “blue-pencil severance” (or removing part of a contractual provision) may be resorted to sparingly and only in cases where the part being removed is clearly severable and not part of the main meaning of the clause at hand. Here the Supreme Court found that “blue-pencil severance” cannot be applied to remove the word “Metropolitan” from the clause in this case because it was not merely a trivial part of the clause originally agreed to by the parties.

The also found that “rectification” (or where a court orders a change in a document to reflect what the document ought to have said in the first place) could not be invoked to resolve the ambiguity in this particular case. They stated that rectification is to be used to restore what the parties’ agreement actually was, were it not for the error in the written agreement. In the Shafron case, there was no indication that the parties agreed on something and then mistakenly included something else in the written contract. Rather, they used an ambiguous term in the contract (“Metropolitan City of Vancouver”).

In other words: there’s no substitute for a well-written contract.

"Your Honour, Homer made me do it"

2009-03-03T22:22:00.005-04:00

Don't get me wrong, I'm all for creative legal argument. I think that it's a lawyer's obligation to visit and revisit the law as much as possible in order to shape an argument that will both further the evolution of our laws and represent a client's best interests.

I must admit though, that I've never managed to achieve the, um, "heights" of this particular lawyer's use of what can best be summed up as the "Homer Simpson Defense". You have to read it to believe it.

This is one of the best parts of the law though: you really couldn't make up some of this crap.

US Justice Department releases post-9/11 memos

2009-03-03T15:02:00.002-04:00

The US Department of Justice released legal memos produced by the Bush Administration's Justice Department after the September 11, 2001 attacks. They reveal the scope of the powers sought by the Bush Administration for the military and for the Office of the President. A blog posting summarizing the memos can be read here.

It's a fascinating look into the mindset of the Administration after the attacks. I'm always amazed at how everyone is always gung-ho to protect their own rights, and equally (if not more) gung-ho to remove those same rights from others.

For the complete text of all 9 memos released by the Department of Justice, have a read here.

Wow, and only 142 years late, too...

2009-03-02T21:04:00.000-04:00

The provincial premiers of New Brunswick and Nova Scotia have decided to reduce and/or eliminate inter-provincial trade barriers; barriers that have existed and have been growing since 1867.

Oddly enough, we've been pressuring our US neighbours to reduce or eliminate trade barriers with Canada for decades. We've even signed two free trade agreements (FTA and NAFTA) with them for this very purpose.

However, provinces have had (and have maintained) these barriers between themselves quite willingly. This, despite the fact that the Federal Government has had the power to regulate Trade and Commerce (pursuant to section 91(2) of the Constitution Act 1867), and to disallow provincial legislation (pursuant to sections 55 - 57 and 90 of the Constitution Act 1867). The Federal Government has exercised this power scores of times, just not recently. The only reason they haven't lately is politics. No Federal Government has had the wherewithal to invoke this power in decades.

For a discussion of the costs of these barriers, this article covers them in a nutshell.

Recession takes toll on copyright material

2009-03-02T20:08:00.000-04:00

Looks like the recession is taking a toll on what some copyright owners used to allow as "fair use" of their material. Litigation is on the increase as the owners of the copyright material attempt to hang on to whatever revenue they can muster.

Read the article from today's New York Times here

Supreme Court of Canada affirms copyright decision

2006-10-12T15:42:00.000-03:00

Data bases compiled by newspapers and other publishers cannot simply reproduce freelance work without the specific agreement of writers, photographers and illustrators, the Supreme Court of Canada ruled this morning.

The ruling was a partial victory for writer Heather Robertson, who launched a class action suit in 1996 against The Globe and Mail and its then-owner - Thomson Corporation - for copyright infringement.

"The right to reproduce a collective work under the Copyright Act does not carry with it the right to republish freelance articles as part of an entirely different collective work," a 5-4 majority said.

However, the Court also ruled that class action lawsuit must proceed to trial - a key point that the Globe and Mail's lawyers had argued for. A central argument at trial will be whether, in selling their work to the newspaper, freelancers presumed that it could end up being used in any way the newspaper desired.

To read the Court's full decision, click here.

EU may take a closer look at Microsoft's Vista

2006-10-11T11:50:00.000-03:00

The International Herald Tribune has reported that three makers of security software said on October 2, 2006 that they supported the European Commission's effort to determine if Microsoft's Vista Windows operating system would unfairly hurt them by directing users to Microsoft's own security products.

Symantec and McAfee, both based in California, and the Finnish company F-Secure said Vista was being designed to deny rival programs access to its innermost workings - the so-called software kernel - which will limit the effectiveness of their own security sweep programs.

Vista is the first Windows version to include Microsoft's own security console, which will run side-by-side with those sold by rival security software makers. Rivals said they feared the dual gauges would confuse consumers and erode their own sales. "The European Commission is spot on with their concerns over the lack of customer choice," said John Brigden, a senior vice president and head of sales in Europe for Symantec. "This is all about control and dominance."

Microsoft plans to start selling Vista to business customers in Europe in November, and to consumers in January. Symantec and McAfee first expressed their concerns in the press in September. On Monday, McAfee raised the volume by taking out a full- page advertisement criticizing Vista in The Financial Times.

"This isn't just putting us at a competitive disadvantage," George Samenuk, chief executive of McAfee, said. "This is locking us out entirely."

While Symantec, McAfee and F- Secure have gone public with their concerns, none have filed a formal complaint with the European Commission, which has been holding talks with Microsoft on Vista since September.

The European Commission has already fined Microsoft almost €1 billion, or $1.27 billion, since 2004 for using its de facto monopoly on computer desktop operating systems to promote its Windows Media Player.