Monday, 03 September 2012 09:00 Written by Dera J. Nevin
Increasingly, lawyers are “going native” for production. The trend appears to be in its early stages, but all indications are that the use of native productions is expanding. Examples of this phenomenon include lawyers asking their opponents for Microsoft Excel and PowerPoint documents, or agreeing to turn over video and voicemail messages rather than producing a transcript of those items. It’s possible that soon only documents requiring redaction will be exempt from requests for native production.
|Illustration: Jeff Szuc|
|Illustration: Jeremy Bruneel|
If the relationship between intellectual property laws and innovation had been on the agenda 10 years ago, there would have been a unified call for stronger IP laws. In current reviews of the dynamic between the two, it is evident that many stakeholders have experienced a mind-shift brought about by a recognition that the “more is better” approach to IP rights can be more stifling than productive.
These changing perceptions are among the views that the government’s standing committee on industry, science, and technology (INDUS) is hearing as it undertakes a study on intellectual property focusing on its role promoting innovation and leading-edge technology.
Professor Ariel Katz, director of the Centre for Innovation Law and Policy at the University of Toronto, has been aware of a growing skepticism for some time. “The basic theory of why IP rights are important for innovation is well-understood and straightforward. Research and development are costly, and once something is created it can be easily reproduced. Everyone can use it without sharing the cost and risk of creating it. Therefore, if people can’t get a return on their investment, they won’t invest. On the other hand, rights that prevent use by the next generation of innovators lead to sub-optimal dissemination of information and monopolies which cause problems of their own.”
For those trying to determine when IP law morphs from being productive to counterproductive, it’s difficult to find a clear answer. To find the line, Katz says that people need to ask how broad and how long protective rights should be, and what it is that they are actually protecting. “That’s a series of questions with no easy answer. At some point there is an inverse relationship between the level of protection and the amount of innovation.”
Many think Canada has already reached that turning point, as evidenced by the multitude of opinions on recent reform efforts, particularly on copyright. “A lot of the current reform is driven by the kind of thinking that stronger is better,” notes Katz, “but it is too crude and sometimes just wrong. Reforms only go in one direction — ratcheting up. Places with more relaxed systems sometimes do better.”
Professor Jeremy de Beer of the University of Ottawa’s Faculty of Law told the committee that it should focus on “better IP, not more IP rights.” He advocates a recognition that not everyone wants to handle IP the same way. He endorses a more creative use of IP rights known as “open innovation,” where you use IP rights to facilitate collaboration rather than as a tool of exclusion.
Katz has seen this in the copyright arena, particularly with respect to open-source software. “If you write some code, you allow everyone by licence to change it for free. The only condition is that what they produce is subject to the same terms. This is a defensive use of copyright to ensure the openness of the system. This is also being used in the patent arena by research organizations. It’s a reverse way of using intellectual property rights.”
Apart from the opinion evidence it is gathering, the committee also has access to a wealth of reports and precedents. The international community has been grappling with the same issue and many countries have gone through a modernization of their IP systems in recent years. Canada is subject to the World Trade Organization’s TRIPS (Trade-Related Aspects of Intellectual Property Rights) agreement and can access the World Intellectual Property Organization’s increasing resource of templates and treaties for guidance.
However, it is important that the goal of global harmonization does not obscure the search for a custom-made Canadian solution. “If we simply copy what other countries are doing, we may be repeating the same mistakes, and we won’t know if we have nothing to compare it to. When there are differences that don’t serve any purpose and just increase costs, they can be removed, but otherwise there is a lot of value in competition and experimentation,” says Katz.
At home, there have been five major reports in the last five years addressing changes required to boost innovation. Many cover aspects other than IP, but most at least touch on it. Only five years ago, INDUS undertook an extensive study of IP in Canada and produced a widely endorsed report declaring the need for urgent action. However, of its 19 recommendations, only two or three have been acted on.
While some stakeholders have called for more studies, it is evident most are impatient with the lack of action. Graham Henderson, president of the Canadian Recording Industry Association, describes the issue as having been “studied to death” and says his presence before the committee had a “disconcerting sense of déjà vu.” Adam Herstein, a partner of Pitblado Law in Winnipeg, thinks the government should stop writing reports on innovation and “get out of the way.” He prefers a hands-off approach, leaving the commercial markets to find their own way. “Governments don’t innovate — inventors innovate, creators innovate. I’ve seen a lot of good projects die because of government.”
What lawyers are saying is Canada already has a strong IP framework, and all that is required are statute- and system-specific improvements. The process bringing the Copyright Act into the digital age, and the regulatory review into the Trademarks Act are all seen as extremely valuable reforms. “C-11 has gone a long way towards fixing things,” says Mark Eisen, the president of the Intellectual Property Institute of Canada. “We are hopeful that countries that feel Canada is lagging behind in this area will be satisfied.”
Philip Lapin, a partner of Smart & Biggar in Ottawa, says most trademark reforms deal with procedures, one major substantive change is that trademarking of soundmarks is now allowed. “As in other parts of the world, the Canadian office will now register holograms, motion marks, and sounds.” He also applauds the recent improvement of efficiency at the Trademark Office. “It used to take 18 months to two years, now it’s six months or less.”
The consensus seems to be that patent law and the industrial design regime need this same attention. Witnesses at the committee from the university sector indicated with the high cost of drafting and prosecuting patent applications, as well as the long time to issuance, few patents can be supported by a university without a financial partner. Many applications are abandoned before commercialization is realized. Other witnesses blamed the patenting process for consuming too much of a company’s resources. There has also been talk of emerging problems such as patent “thickets,” where patents are bundled in a way that creates obstacles and uncertainty, and the predatory behaviour of non-practising entities that purchase patents to monetize them through lawsuits.
Eisen believes the problems in the patent area are indicative of ones in the IP system as a whole. “It is very expensive to obtain protection and it is very expensive to litigate. I hope that the committee process will spur a recognition that our statutes have fallen behind markets and technology. This is an opportunity to update them.”
Robert Storey, of Bereskin & Parr LLP in Montreal and a past president of the Fédération Internationale des Conseils en Propriété Intellectuelle Canada, says the biggest controversy that needs to be addressed is what may or may not be patentable. He refers to the recent Federal Court of Appeal decision on Amazon.com Inc.’s “one-click” patent. “One of the decision’s highlights was the importance of establishing with as definite lines as possible what constitutes patentable subject matter.” Storey also cites the deemed abandonment provisions as being badly drafted and in need of correction.
Eisen thinks one of the most important parts of the equation is to have skilled and experienced examiners at the Patent and Trademark Office who hold the same notion of what is patentable or what is registerable as a trademark as IP professionals. He referred the committee to the Amazon case as an example of where the profession and the patent office were working at cross-purposes, saying, “It’s extremely inefficient, resulting in many office actions and spinning wheels.”
The Industrial Design Act is also seen as needing urgent attention. Storey notes it was drafted well over 100 years ago, and was badly done then. “CIPO examiners struggle with it and there is not a lot of jurisprudence to guide them. There is great scope for improving how it could be used.” He cites the fashion industry as one market that could benefit from access to a low-cost form of protection. Lapin points to the problem that applications are reviewed on the basis of previously lodged designs, not on whether there are similar designs that are already out there.
There are also proposals for court reform. Eisen speaks of the need for incorporating new technology and ensuring the court process is cost-effective. Specialist IP courts are becoming something of a global trend and there have been calls for the Federal Court to split off its own patent court. The Federal Court is currently reviewing its rules and one of the issues on which it has requested submissions is whether it should adopt specialized procedures for different types of cases.
Lapin believes most patent lawyers are in favour of a separate court. “It’s such a complicated area and can be intimidating to judges who don’t have a science background. Patent lawyers are always worried that they will get a judge who doesn’t understand the invention.” Storey is one patent lawyer who disagrees, saying there is already harmony between jurisdictions. Katz is also not a fan of a specialized patent court. “You can have a patent dispute where the most important thing is not actually the patent. You need jurisdiction to address all the other issues and look over how the patent problem intersects with other problems. Another advantage of the general court is that parties are not limited in the kind of legal claim they are allowed to bring. They can bring up anything that is relevant.”
For Katz, the message coming through from all sectors is a recognition that there is much more nuance to all these issues. “Our IP laws are the strongest they’ve ever been and strong if you look at international comparisons. If we don’t perform well it’s not because the laws aren’t strong. They may be too strong. The committee should pay attention to that.”
|Illustration: Enrico Varrasso|
Monday, 02 July 2012 09:03 Written by Dera J. Nevin
I find it surprising when litigators choose not to do full “custodian interviews” before beginning the discovery process. An effective custodian interview done at the earliest possible opportunity can improve the discovery process, particularly when electronically stored information is involved.
A custodian interview involves asking people who may have documents relevant to litigation (i.e., custodians) about those documents, where to find them, and what they might contain. Custodian interviews are just old-fashioned lawyering, applied to e-discovery. Custodian interviews are also lawyer work product and, arguably, are subject to litigation privilege.
These types of interviews are useful because they help you to identify all the locations where custodians have paper or electronically stored information and can provide information about which electronic records each person created, received, and accessed, and where these are stored. Information from these interviews can help you preserve and collect potentially relevant documents and identify, at an early stage, those documents that do not need to be collected. Determining early what is available and relevant can ultimately help lower the costs of e-discovery by simplifying the collection process and ensuring that litigation holds are implemented so spoliation and destruction of records is avoided. These interviews can also establish the basis for arguing
proportionality in meet-and-confer conferences or on a discovery motion, because they will provide you with information to show how the cost of collecting or producing electronically stored information may exceed the value of the claim or the utility of the information sought in the litigation.
The best time to do custodian interviews may depend on how the litigation and fact finding is unfolding. I prefer to do them as early as possible and preferably in conjunction with establishing litigation holds to make sure that no potentially relevant information is destroyed. I view custodian interviews as a natural extension of the early fact interviews conducted of individuals with knowledge of the case. Custodian interviews can be understood as another step in gathering information that can be used to advise the client about the possible manner in which the litigation and discovery process may unfold.
There are two categories of custodians to be interviewed: IT custodians and end-user custodians. Where companies or organizations are involved, IT custodians are the people responsible for the overall management of the information technology systems. Where there are extensive paper collections of documents that are systematically organized, a records manager or person responsible for those paper records might also be included in this group. The second category, end-user custodians, includes people who created, received, or accessed the potentially relevant documents at issue. They are asked about their habits and practices in working with documents; about the computing devices and software they used while creating, accessing, or receiving those documents; and about all the locations where those documents might be.
I prefer to do IT custodian interviews first, because with a single interview I can gain valuable insight into company practices and obtain information that may be relevant to multiple end users. I use the IT custodian interview to ask for any applicable IT policies and procedures, including the acceptable use policy and social media policies (if these are relevant); about how the computers are configured; which computer applications people have available; how e-mail is made available to end-users; and to obtain a data map — a diagrammatic representation of the computer system, which will help guide me through the IT systems much like a geographical or topographical map guides me through landscape.
In this age of smartphones and cloud computing, I also ask the IT custodian about peripheral devices that are made available to end-users, and whether the company may store its data outside its own systems. I can also ask the IT department to generate reports about each user’s particular configuration, including available hardware and memory size, the number of e-mail accounts available to a user, and reports on places where that person can store data.
End-user custodian interviews help you understand how each particular user created, received, or accessed documents. You can ask the end-user about what information he or she might have in relation to the issues in the litigation. I also ask about working styles, how they organize or “folder” information, and whether there is any special terminology or naming convention they use that can help me sort through or search information. This information can help me target the preservation and collection of documents and can form the basis for developing search terms for use in searching or reviewing documents. I also find out if the user accessed information through home-computing systems or mobile devices including smartphones. In addition, I ask custodians who else they worked with in order to determine whether the custodian list is complete. Doing so may help me identify other people who should be interviewed.
Some lawyers may feel uncomfortable doing a custodian interview, particularly if they are working with electronically stored information for the first time. It is acceptable to involve an expert, such as a vendor, or a lawyer or clerk specialist, but I recommend that a lawyer with responsibility for case preparation sit in on the interview to make sure the correct information has been collected. A lawyer’s participation in the interview helps ensure the conversations are kept privileged and the focus of the information gathering remains on the issues in dispute.
Finally, as with any witness interview, it is important to take good notes. I can often identify gaps in evidence collection simply by reviewing my notes for the custodians in the aggregate. I also compare my notes from custodian interviews to the evidence collected when this becomes available. Many lawyers will find it unsurprising that evidence witnesses, much like fact witnesses, get the details wrong about their own documents and data or simply aren’t truthful. I find it helpful to learn about these evidentiary misunderstandings and omissions early, and prior to oral discovery.
For Andrea St. Bernard, law has always been a passion, as has competitive sports. But rather than choose between the two, she’s managed to find room for both in her life — although it’s a tricky balance. St. Bernard is an associate at McMillan LLP in Toronto as well as a third-degree black belt in taekwondo who has qualified to represent her native Grenada at this summer’s London 2012 Olympic Games.
Growing up, she would watch the Olympics with her family and imagine being there — doing whatever sport she happened to be doing at the time. But she didn’t start taekwondo because she saw it as an avenue to the Olympics. At some point along the way, the Olympics became a goal within reach.
But St. Bernard also had a passion for the law. Before she went to law school, friends who she hadn’t seen in years would ask her when she was going to do “the whole law thing.” After attending Duquesne University in Pittsburgh, Pa., on a volleyball scholarship, she pursued business law at the University of Toronto. During her time at U of T, St. Bernard discovered martial arts — about eight months before starting law school. “I’ve always been interested in martial arts, but hadn’t found the opportunity or right coach and situation,” she tells Canadian Lawyer, admitting she was a relatively latecomer to the sport. “I was comfortably ready to move on from volleyball having done it for many years and quite possibly reached the height of my volleyball career.”
With volleyball, her options were limited: She could either play for the national team or pursue a career in Europe, where the sport is more popular. But volleyball is also a team sport that requires a commitment to scheduling, which wasn’t something St. Bernard could do through law school. She met a taekwondo coach through family and tried out a class at Young Choung Taekwondo Academy in Toronto. During her first class, someone held a target for her and told her to kick it. She started kicking, and hasn’t stopped.
On a physical level, taekwondo requires strength, balance, and speed. But it also requires mental focus and discipline, and helps to build confidence. “I fell in love with the sport,” says St. Bernard.
At the time, the club was home to several members of Canada’s national taekwondo team, so from the start, she could take high-level classes. Even though she didn’t have a background in the sport, with her volleyball experience, she was athletic enough to move with the class. “It was kick or get kicked, [and] I was getting kicked a lot. Eventually you kick back or you go home. I kept going,” she says.
It’s something she has managed to fit into an unorthodox schedule, although it can be tough. She had a major competition the weekend before her first law school exam. “It was crazy. Having gone through university as a varsity athlete and getting all the privileges of a varsity athlete, this was different. I was a complete beginner, and I was going to be late for exams because I was going to some competition.”
She joined McMillan as a summer student and in her interview was honest that competitive taekwondo was something she was going to pursue alongside law. Fortunately, the firm thought it was “awesome,” she says, even though that was not everyone’s initial reaction (generally more along the lines of, “When are you going to focus on what you should really be doing?”). The firm even extended her articling by three weeks so she could compete. “McMillan gave me the opportunity,” said St. Bernard. “I tend to work hard at everything I do, so as long as the work was good and the hours were there, they had no problem with me pursuing [taekwondo].”
St. Bernard has been with the firm since 2006 when she was called to the bar. As a member of the debt products group, she acts for lenders and borrowers in a variety of debt financing transactions, from corporate lending to debtor-in-possession financing. She also completed a secondment at the Ontario Securities Commission’s corporate finance branch during her articles with the firm.
During law school and for the first five years of her practice, St. Bernard would work during the day and train at night. “There were many nights where I was in the midst of a deal where work had to be done but I had a competition coming up and I had to train,” she says. “So there’s a constant pull.” But she’s always participated in some sort of competitive activity, so she makes it work. “There are a few 24-hour gyms in Toronto, so I do crazy things at crazy hours, I go with the flow a lot,” she says. “I do have to and need the benefit of the unit to be able to spar and do technical training, so I try to commit to regular evening classes at Young Choung,” which means sometimes heading back to the office late at night after a training session.
Now that she’s chasing the Olympics, St. Bernard has taken time off from law to focus on training (from two to eight hours a day). And while Toronto is still an important hub, she’s also training in Grenada and Cuba.
Taekwondo is quite new to the Olympics, and only 16 athletes compete in each of the four female divisions. She will compete in the under-67 kilograms sparring division. It’s her “last hurrah” at this competitive level, she says, and afterward plans to go back to the law and take it from there. “I’m enjoying the full-time athlete life but the grass is always greener,” she laughs. “I enjoy the practice of law and want to return to the practice of law.”
St. Bernard enjoys the nature of banking work, which she admits sounds odd to most people. “But you find your niche. There are a lot of negative or tough things that come with it — it is a tough profession [but] I enjoy the challenge.” It also involves both teamwork and independent work — much like the sport of taekwondo. “It doesn’t keep me in any type of box. . . . I’m always doing something different. I really enjoy the feeling of having accomplished something that seemed impossible,” she says of her law career — a statement that could equally apply to martial arts.
The greatest challenge of her job, she says, is finding work-life balance. “In more positive, lucrative economic times, it’s hard to stop and enjoy life and not just get sucked into the flow,” she points out. “Myself and many lawyers tend to have the type of personality to try to do more and more and more. The challenge is to slow down sometimes and not try to conquer the world every day.”
Perhaps not every day, but this summer in London, St. Bernard will indeed set out to conquer the world.
|McMillan associate Andrea St. Bernard will be competing for Grenada at the Olympics.|
Bert Gockel wants nothing more than to live quietly in the tranquil rural community of Springfield, Man. But the community won’t let him. He’s not an axe-murderer or a pedophile, though some would say he’s being treated like one. He is being excluded from Springfield because he is an intellectually disabled person who needs special care. New Directions, a Winnipeg-based social service agency, is seeking to house him and one or two other people with similar disabilities in a “shift-staffed home” where they will receive the 24-hour care they need to carry on their everyday lives.
But local residents don’t want them in their neighbourhood and the local council is denying the agency planning permission. The agency has responded by taking the municipality to court, claiming before The Court of Queen’s Bench that the local zoning bylaw, or the way that the municipality is interpreting it, has “a discriminatory impact on persons with disabilities” and is inconsistent with the Charter of Rights.
It’s discriminatory because the only thing that distinguishes Gockel and his would-be housemates from any other residents of single-family homes is their needs as disabled people, says Shereese Qually, an associate at Taylor McCaffrey LLP in Winnipeg, who represents New Directions. A shift-staffed home is “the only way they can live in the community, the only way that provides for substantive equality,” she says. “The community should have resources like this because every community has disabled people. The fact that they don’t encourage this is shocking to me.”
Claims that municipal zoning bylaws discriminate against disabled people and other vulnerable groups have also become prevalent particularly in Ontario, where a case currently before the province’s Human Rights Tribunal could well result in almost every municipality in the country finding that it needs to rewrite its planning regulations.
In the first such case to come before a human rights tribunal, the Dream Team, a group that advocates for supportive housing, is claiming that provisions in a number of City of Toronto zoning bylaws discriminate against people with disabilities by imposing minimum separation distance standards for the development and location of group homes, residential care facilities, and other types of supportive housing.
Numerous municipalities across Canada use separation provisions as a way of limiting the number of group homes and other such facilities in each neighbourhood. Municipal politicians and staff are often put under pressure by citizens concerned about decreased property values, increased traffic, or new neighbours whom they consider undesirable. Accepted planning principles, reinforced by various court rulings, require that zoning bylaws focus on land use issues and not the people who may live on the property. Requiring that group homes be located a certain distance apart, therefore, provides an apparently technical solution to a politically charged issue.
Many municipal planners view these regulations as a way of preserving the integrity of neighbourhoods by ensuring there is not a concentration of one single type of use. In Kitchener, Ont., for example, a separation bylaw was enacted to arrest what was seen as the decline of a downtown neighbourhood where there was a concentration of multiple dwellings with absentee landlords, assisted and supportive housing, and residential care facilities, together with problems relating to drugs and prostitution, according to Kim Mullin, a partner with WeirFoulds LLP who acted for the City of Kitchener at an Ontario Municipal Board hearing challenging the separation bylaw on the basis it was discriminatory.
In this case, the OMB issued an interim order in 2010 instructing the municipality to analyze its bylaws in light of the Human Rights Code and the Charter of Rights. The board stated: “That analysis is glib, if it merely assumes that telling persons with disabilities and/or on public assistance to ‘just go elsewhere’ is no encroachment on human rights, or that it was just a small one, or that it was for ‘a greater good.’” Qually says circumstances in the neighbourhood subsequently changed and the municipality decided there was no longer a need for the restrictive planning regulations.
Advocates for supportive housing argue that such bylaws are discriminatory in several ways. To begin with, there is the fact that various groups of people — the intellectually disabled being a prime example — cannot live in the community without support from caregivers. Qually points out that people who are already living in a private home when they become afflicted with disability may employ as much round-the-clock care as they need without the municipality or anyone else having any grounds to interfere. So what is the difference, she asks, between this situation and a group home or a shift-staffed home that complies in every other way with planning regulations?
Then there is the claim that bylaws limiting group homes and other such facilities severely limit the opportunity of disabled people to find appropriate accommodation because they need to be in neighborhoods where they have convenient access to public transit and other services. There are also numerous situations where a suitable property becomes available or is donated to a supportive housing agency, but it cannot be used because there happens to be another group home within the minimum separation distance specified by the bylaw.
Furthermore, such bylaws reinforce stereotypes, make a very negative statement about disabled people and empower those with a not-in-my-backyard mentality that is often vented in hostile and pejorative ways at public meetings where disabled people are present, according to Kathy Laird, executive director of the Human Rights Legal Support Centre, which assists people making claims before Ontario’s Human Rights Tribunal.
Laird says groups representing disabled people in four Ontario municipalities have filed applications before the Human Rights Tribunal regarding discriminatory planning regulations. In two of these cases, the issues may have been resolved without a hearing. The Town of Smiths Falls in eastern Ontario has agreed to amend a bylaw provision that currently puts a cap on the total number of “mentally retarded” people who can be accommodated in group homes within the community. And in Sarnia, Ont., where city council has enacted new bylaws to remove barriers for those requiring supportive housing, Mayor Mike Bradley issued this statement: “Arbitrary restrictions on group homes are discriminatory and have nothing to do with planning and everything to do with negative stereotypes about disabled people. I would like to see the government prescribe regulations to supersede all such bylaws across Ontario.”
The Toronto case cleared its first hurdle earlier this year when the tribunal ruled that it does have jurisdiction to consider the matter. However, the City of Toronto has since filed an application for a judicial review before Ontario’s Divisional Court. Laird says a key issue in this review will be the city’s claim that the eight individuals on whose behalf the Dream Team has launched the complaint did not directly suffer any discrimination, as they were not denied a spot in a group home as a result of the city’s bylaw. As she explains it, this is a catch-22-type argument, since a group home could not be established without planning approval and no one could be denied a place in a non-existent facility. City representatives declined a request for an interview.
Mullin says a fundamental issue to be determined in this and other similar cases is whether human rights concerns can trump planning regulations or vice versa. It’s an issue that will, she says, eventually have to be decided by the courts.
|Illustration: Jeff Szuc|
For years now companies have been focused on how to keep internal data from getting into the wrong hands outside their organizations. In the wake of a recent Ontario Court of Appeal decision involving two employees of the same company, concerns have turned to how to better preserve privacy standards internally.
In Jones v. Tsige, the Ontario Court of Appeal recognized for the first time the tort of “intrusion upon seclusion.” In the case, Sandra Jones and Winnie Tsige both worked at the Bank of Montreal, but at different branches and did not know each other. However, Tsige became involved with Jones’ former husband, and used her workplace computer to access Jones’ personal account information at least 174 times. Jones learned of Tsige’s misconduct and sued for invasion of privacy and breach of fiduciary duty, seeking damages of $20,000.
The Court of Appeal allowed the action and awarded Jones $10,000 in “symbolic” or “moral damages” indicating that Tsige’s actions did not cause Jones any financial loss. The decision stipulated that the law had to evolve to recognize the need to protect individuals from unreasonable intrusion into their private lives.
It’s a case that employers should pay close attention to, says employment lawyer Hendrik Nieuwland of Shields O’Donnell MacKillop LLP. Nieuwland predicts there will be more action coming in this area. “I have no doubt you’re going to see more litigation in this realm. It’s almost like Wallace all over again,” he says, referring to “Wallace-type damages.” Before Wallace v. United Grain Growers Ltd., employees were not entitled to compensation for injuries due to a dismissal. Prior to Wallace, it was also extremely difficult for plaintiffs to obtain damages based on the manner in which they had been dismissed.
The Court of Appeal described the tort of “intrusion upon seclusion” as: “One who intentionally intrudes, physically or otherwise, upon the seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the invasion would be highly offensive to a reasonable person.”
In his decision, Justice Robert Sharpe explained the limitations of the new tort: 1) the defendant’s conduct must be intentional or reckless; 2) the defendant must have invaded, without lawful justification, the plaintiff’s private affairs; 3) a reasonable person would regard the invasion as highly offensive causing distress, humiliation, or anguish; and 4) the plaintiff can recover damages even if there is no actual financial harm caused by the invasion of privacy, but the court capped damages at $20,000.
“I don’t see it as changing life dramatically; the tort is probably built best for disputes between individuals who are very angry at each other,” says Daniel Michaluk of Hicks Morley Hamilton Stewart Storie LLP. “It’s a little bit like defamation in that sense. It doesn’t shape the actions of a corporation on a day-in, day-out basis but for employers and private investigators it’s key and I think they’ll get claims and I think it will modify the use of private investigators.”
Michaluk says he sees two sets of issues for employers to consider. One relates to the collection of information about employees inside the workplace. “I think employers will be given a wide berth inside the workplace. That has been the experience in the United States where courts have said that inside the workplace employers have to do things like investigate and audit, and your expectation of privacy is limited,” says Michaluk. “I would hope that would be the case here, too.”
|Illustration: Alexi Vella|
The firm is comprised of a receptionist, two paralegals, and the husband and wife team of Cozens and Lana Wiens. The office is located in the hip Calgary neighbourhood of Kensington and is itself hip and super casual. On this day Cozens has worn a black T-shirt and jeans to work. He describes himself as not being a typical lawyer.
To a growing number of Canadians, Cozens is most recognizable when he’s dressed in his cowboy hat, blue jeans, and cowboy boots. He and Calgary auctioneer Sheldon Smithens, a friend for many years, are the stars of History Television’s Canadian Pickers. They drive themselves around the country looking for treasures to buy from amateur collectors. “We attract a certain demographic,” Cozens says. “I can go into a Starbucks and no one will recognize me. But if I walk into a Tim Hortons, even looking like this, everyone will know who I am.”
Cozens Wiens — the firm, not the couple — started three years ago when the pair left Gowling Lafleur Henderson LLP. They met about 10 years ago while both were at Code Hunter Whitman Barristers, which merged with Gowlings in 2000, and specialize in civil litigation and insurance defence. Cozens is in his 21st year practising law and he and Wiens have two out-of-province insurance companies as their main clients.
Canadian Pickers is now filming its third season while the second season airs. It will shut down production for two months this summer while Cozens is involved in a civil suit that stemmed from a traffic accident in nearby Okotoks, Alta., that rendered a female passenger quadriplegic.
Cozens and Smithens became household names after Smithens was approached by History Television, which was looking for a pair of seasoned treasure hunters for a northern version of American Pickers. Needing a partner, he called Cozens. Their chemistry shone through during an audition and they got the gig.
Now in his early 50s, Cozens caught the picking bug as a child from both his late grandmother and mother, with whom he still attends sales in the Calgary area on weekends when he’s not away. They sometimes engage in friendly competition for finds. “My mom likes to tell the story about the time we went to a garage sale and I accidently put her up against a fence so she couldn’t get out of the car,” he says. “I typically get out of the car very quickly. I got in there and found a beautiful Steiff lion — a really nice toy — while she was still stuck in the car.”
Cozens and Smithens fly and drive to various locations that have been already been scouted by production staff and are often off the beaten path. They spend their own money to buy collectibles from regular Canadian folks and are planning a huge auction in Calgary this spring, where they will attempt to sell the best items for profit. “There’s three equal parts that I love about doing this — the people, the country, and the stuff. You’ve got to have all three or it’s not as satisfying.
“I’m ecstatic that we went to Newfoundland for the show, for example. I’d never been there and I loved it. I wouldn’t never have gone there had it not been for the show. We’ve met some [jerks] along the way but we’ve also met some great people along the way, too.” Newfoundland was where Cozens and Smithens met a fellow named Gary, a medic in Vietnam, and bought from him some ivory pieces and a flask that was designed to hold morphine. That trip became the Feb. 13, 2012 show.
Cozens has a soft spot for anything native-related. Among his favourite possessions is an antique handmade fountain pen from the 1920s with a native headdress on the top that his grandmother bought “for a dime” and gave him when he was a boy.
He was hoping that a trip to La Ronge, Sask., which borders the 2,000-member Lac La Ronge First Nation, would be one of his most memorable trips. But a visit to a trading post there yielded nothing but a headache. “There was nothing to buy. [The collector] wouldn’t sell anything,” Cozens recalled of a trip that was shown in the first season. “People want to be on TV so they say they have stuff to sell. But when you get up there they don’t want to sell or want 10 times what it’s worth. It was a very frustrating trip for me.”
Somehow, says Wiens, who also is an avid collector, they have managed to keep their home becoming overrun with stuff and a suitable location for another popular TV show, Hoarders. “It’s a bit like this office,” she says, sitting in the boardroom of their tidy space. “It’s a real mix. He loves a wide range of things, so do I. He leans towards the pop culture, modern line of things. . . . At home we’ll have an 1850s hutch next to a really funky ’50s chair.”
Cozens admits the show is both a benefit and negative for his practice. “The people that I work for who are in the trenches like the fact that I’m on TV,” he says. “Whether people on the top of the heap care is an entirely different thing. They see a side of you that they don’t see when you are practising law. The negative is sometimes people don’t take you as seriously when they see you with long hair and a cowboy hat. I’ve never been this way, but there are people out there who judge you based on how you dress and what you look like.
“If you don’t have short hair and wear a suit, they don’t think you’re a heavy hitter. I love it when people misjudge me.”
|Scott Cozens, right, bargaining for picks in Quebec. Photo: Cineflix|
Gone are the days when a family law judge would tell a child’s counsel in a custody and access case that they should have their mouth washed out with soap for even broaching the idea of a judicial interview with the youngster. It happened to Toronto family law lawyer Martha McCarthy in the early ’90s. “I suggested a judicial interview with a child. The Children’s Law Reform Act provides that a child’s views and preferences shall be taken into account to the extent they can be ascertained. I said to the judge, ‘I’d like you to interview the child,’ and he said, ‘I will not — and you should have your mouth washed out with soap for even suggesting it.’”
Until recently it’s been a no-no in Ontario family law: judges talking directly to the children has been largely considered “politically incorrect; that is not the way we do things in Ontario,” says McCarthy. These days however, some judges are dipping their toes into the once-scalding waters of interviewing and meeting with children, albeit in varying degrees depending on the individual and jurisdiction. Bottom line: it’s an emerging issue that has its controversies, say lawyers.
While children’s voices have always been heard in these matters, they’re usually vocalized through a third party, says Cathryn Paul, an Oakville family law mediator and agent with the Office of the Children’s Lawyer. “It does happen now in Ontario that a judge will meet with a child in chambers, but it is fairly rare here because there are other ways to bring that voice into court,” she says.
But a dialogue happening now in Ontario could result in adding another tool to the kit for judges in these matters, including a system that assists in hearing from children directly, says McCarthy.
In spring 2011, a province-wide committee co-chaired by McCarthy and Dan Goldberg of the Office of the Children’s Lawyer, was struck under the umbrella of the Advocates’ Society and the Association of Family and Conciliation Courts, Ontario chapter, to write a discussion paper that will include draft guidelines for judicial interviews/meetings with children in custody and access cases, she says.
The committee, made up of judges, family lawyers, and mental health professionals, wrapped up a series of Ontario-wide town hall meetings with family law stakeholders in December. “The goal is to continue the dialogue about ways to put the child’s voice before the court, provide some suggested guidelines for when judicial interviews are more or less appropriate, and set out considerations for judicial interviews when they are occurring,” says McCarthy.
The idea isn’t to eliminate the already-tried-and-true methods that include mental health professionals, social workers, and/or the Office of the Children’s Lawyer, but rather add another option for certain cases that would benefit.
Toronto family law lawyer Murray Maltz says he has had clients who wanted their children to testify and “the judge has not been particularly receptive to it,” even though the Canada Evidence Act does provide that “. . . a person of any age is presumed to be competent to give evidence . . .”
And, of course, every situation will not call for it. Justice Ruth Mesbur, for example, in the 2010 alienation case S.G.B. v. S.J.L. wrote: “I do recognize that children’s wishes and preferences are relevant to determining their best interests, particularly in the case of older children such as JB. That said, the court does not have to hear from children directly to find out what their wishes and preferences are. . . . I saw no benefit in meeting with the boys in the course of the trial. To the contrary, I saw only negative effects in doing so, which is why I did not.”
“There are cases in which it will not be appropriate,” says McCarthy. “But there are also situations in which children want to have a say, or in which an entire dispute can be resolved by a judge speaking to a child, with great efficiency and savings for all. Think about a teenager whose parents are fighting about whether he should go on a trip over the summer; both parents say the child wants to spend the summer with them, but in five minutes a judge might discover the child would rather go to camp.”
Maltz says there is an ongoing discussion around the concept that in some instances children should be heard by judges directly, but in his experience, through the current method of third-party assessors, the “truth is ferreted out.”
The discussion paper idea evolved over three years, says McCarthy, after she had a conversation at a conference with Justice George Czutrin, Toronto’s chief family law judge. McCarthy says Czutrin had many international judicial colleagues who were surprised to hear that judges don’t regularly meet with children in Ontario. He suggested that renewed, thoughtful discussion about judicial interviews should be engaged to see if the current attitudes and approaches were best for serving children and families in custody cases. “I said to him, ‘Let’s do a program together.’ We went to the Law Society [of Upper Canada] and put together a program that became known as ‘The Voice of the Child.’ The program is a full day, multi-disciplinary, and starts with the co-chairs emphasizing that this is a dialogue and there is no
right or wrong answer. . . . It’s a true colloquium.”
The first was held in March 2009 and the third will be held this year on March 28. “At the end of the first year there was really a lot of interest and discussion and flexibility and people talking about all kinds of circumstances in which interviews were helpful or appropriate. Judges came and talked about how they have had interviews with children; they told stories about times that it worked and didn’t work. Custody assessors, social workers, children’s lawyers, child protection lawyers, and all kinds of family lawyers attended. We had a very diverse representation and there was way more flexibility and openness to discuss and consider the issue than I think anybody thought,” says McCarthy.
After the second conference, McCarthy says there was a consensus that, “we should be writing down some guidelines for judicial interviews — circumstances under which they’d be recommended or not and if they’re conducted, what should happen.”
There was also some change noticed, particularly in Toronto, after that conference. “We’ve seen an increase in judicial interviews in Toronto, though you’d still have to describe them as rare. But it is happening that judges are meeting children, lawyers are asking at motions and case conferences if the judge will see a child,” says McCarthy. “What I would say we saw as a trend emerging from our conferences is that there can be circumstances in which a judge or the family find interviews to be helpful. So we had judges telling stories about learning about a child’s particular extracurricular interest and taking that into account in fashioning a remedy, or a judge meeting with children after having rendered a decision to explain what was decided to the child.”
McCarthy says her opinion falls in the middle of the spectrum. “I think the forensic interview can be problematic and there’s real issues about procedural fairness,” she says. “During a trial I would have serious concerns about a forensic interview occurring. . . . But I am in favour of talking about it and being open to circumstances in which it can be a very helpful thing to everyone in the process, including the child.”
For her part, Paul says while she recognizes she may be biased, she believes Ontario’s OCL system is effective and, in fact, an unusual approach as
compared to the rest of North America to bring children’s voices to family law matters. “It’s rare that I hear anything as complete as what the Office of the Children’s Lawyer does.
“I will often hear from kids they just want their parents to fix it, to solve it, and they don’t want to make the decisions. They appreciate being heard about some things but they don’t want to be the ones who ultimately make the decisions,” says Paul. “You also have cases where there is strong alignment or estrangement or alienation and those are much more tricky and I think can be very hard to analyze based on only one meeting in a place that is not comfortable for children. It will take some kids several meetings to warm up to me and I’m not that scary. . . . I don’t have decision-making power.”
Paul says she doesn’t like the idea of the judicial interview and thinks it would have to be an extremely rare case that it would be the best option.
Maltz says he thinks “it is incredibly difficult for a child to be in a situation of divorce and separation. For the most part children love both their parents and to force the child to testify and give evidence against one or the other or put a child into a trial that’s adversarial in nature would be devastating.”
The town hall meetings have shown that diverse practices are already occurring “across the country and the province,” says McCarthy. “There are some judges who have never and will never interview children. There are some who already regularly meet with children, five days a week.”
She says the discussion doesn’t come without its concerns. For example, there is a provision in the Children’s Law Reform Act that says the conversations are supposed to be recorded, but that’s not happening at the moment.
And, she adds, that part of the mix is the proposition from the assessors that they do it best, arguing they see the child on several occasions, build a rapport and “that’s the way to do it. It’s a big issue. Other concerns we’ll deal with in our paper include questions like, are we going to have more judicial education, or judges who specialize in this, what the basic considerations are including who should be in the room, whether they are recorded, and what happens with the recording.”
McCarthy says what has emerged is “very diverse views and diverse experiences. I’m really glad we did the town halls because it’s going to give a level of authenticity and buy-in.” At the end of the day, she says: “There are all kinds of different children and problems and different ways of putting the children’s voices before the court.”
The paper is targeted for release this month at The Voice of the Child program.
|Illustration: Jacqui Oakley|