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.
Dera J. Nevin is the senior director, litigation support, and e-discovery counsel at McCarthy Tétrault LLP. A practising lawyer, she also oversees the firm’s e-discovery operations and can be reached at firstname.lastname@example.org.
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.”
Do you know someone who deserves to be Cross Examined? Tell us about the interesting people you know in the legal profession by e-mailing the editor at email@example.com.
|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|
Monday, 05 March 2012 08:02 Written by Dera J. Nevin
A database of electronic documents to review presents a number of challenges, including how to find relevant and privileged documents in a quick and cost-effective manner. By taking simple steps to improve the search context, you could improve your review efficiency and accuracy.
By search context, I do not mean understanding what the legal issues are (although this is important, too), but rather understanding how the database containing the electronic evidence will respond to your proposed search. Search context can be improved with attention to three things: the state of the index; the searchability of the documents; and the bias of the search engine or search feature.
First, determine the state of the document database index. Understanding what is in the index and how it is built is necessary, because the quality of the index is critical to effective search. In almost every document database, the computer is not actually searching the documents in a literal sense. Instead, the computer is searching the index. The index can be analogized to a table of contents, or a detailed index in the back of a textbook; when a user types a keyword, the computer looks first to the index and then uses the index to locate and highlight the indexed words inside the documents. If a word is not in the index, the computer may not be able to find it in the documents. That is why a well-built index is essential to search.
Indexes are built using index engines, and different document review tools contain different index engines and not all index engines behave the same way, or include the same words or characters in their lists. It is therefore important to check how the program is building that index if you want to really understand how and whether your searching will generate the results you want. Start by asking what the index engine is in your tool, and what it can index. Are there some words or figures it will not index? Can parts of words or numbers be indexed? What about punctuation, special characters, or elements of foreign languages?
Second, determine whether all the documents in your database that contain text are searchable. A document that contains text in the image may not, in fact, have that text available to the index engine, and that text is therefore not searchable. For example, pdf documents, which are created or converted to images, are not necessarily searchable. I encounter this often with pdfs that are attachments to e-mails. Often, these pdfs have been created on an office scanner which has not had its settings configured to create searchable text within the scanned document. When there are unsearchable files in your document population, you may wish to run a secondary process across those documents to make them searchable. Two related processes — optical character recognition and optical word recognition — can make the letters and words in those images available to the index engine, and therefore searchable.
Most litigation support systems that process files can produce a report that identifies files and file types that have not been indexed. Where a file type that could contain or that does contain text exists, but is un-indexed, you can send those files for additional processing, and rerun the index engine across those documents (or across the extracted text from those documents). It might also be useful to give any service providers you work with standing instructions to make text searchable where text is indicated or available.
Third, determine how the search engine within your document review platform works. Search engines are not neutral in the sense that each one has been programmed to work and return results in a certain way. This is a search bias and it is advisable to understand how those biases operate and whether your searching strategy needs to change as a result. For example, in many databases containing law, the newest results are presented first. Usually, that is not a problem, and we adjust our review of the results accordingly. However, one can imagine a situation in which the newest results (at a local court), are not as important as those from an older but more persuasive authority (for example, a Supreme Court of Canada decision). In litigation support databases, search engines can affect the presentation of results, usually in the context of the order in which results are returned. Understand how the search engine returns results and make any adjustments to your search strategy that may be necessary to offset the bias.
Understanding the context of your search helps you design appropriate searches and validate your search results. Now, check your search tool and determine whether it offers a larger range of functionality than keyword and Boolean searching. Some search tools offer fuzzy searching and thesaurus-based searching. These features can enhance searches.
Determine as well whether you need a tool with advanced search analytics that can recognize related concepts. Consider this: using the keyword “dog” will turn up only items in which that specific word is used. However, in a case about “dog,” relevant documents may also contain the terms: poodle, dachshund, canine, puppy, and Rover, as well as the related words “walk” and “bone.” Such documents would not appear in any search using the keyword “dog” unless the tool has functionality, such as word- or concept-clustering or thesaurus-based features that would also return those documents. I use this example to show both the limitations of relying solely on keywords, and to prompt inquiry into what other search functionality may be available or required.
Finally, do a quality assurance check on your search results. Do both a qualitative (testing related concepts) and a quantitative (testing a certain proportion of the remaining records) check to validate your search. Check a sample of the records not returned in search to verify that nothing was inadvertently omitted. Take good notes throughout your search, or save system reports, so that you can rely on those if ever your search results are challenged.
Dera J. Nevin is the senior director, litigation support, and e-discovery counsel at McCarthy Tétrault LLP. A practising lawyer, she also oversees the firm’s e-discovery operations and can be reached at firstname.lastname@example.org.A database of electronic documents to review presents a number of challenges, including how to find relevant and privileged documents in a quick and cost-effective manner. By taking simple steps to improve the search context, you could improve your review efficiency and accuracy.
When it comes to dealing with First Nations issues in Canada, increasingly, industry and native groups are getting out in front of government in an attempt to build relationships and business. They are working on progressive agreements to advance opportunities economically both for the First Nations communities and the companies to expedite projects, particularly in the resource sector.
The missing link in this push forward, according to many aboriginal law experts, is government’s inability to make decisions and keep Canadian resource projects of interest to investors. “That is the elephant in the room — the government part of the issue and I think many of my First Nation friends would agree. What exactly is the game plan?” says Thomas Isaac, a partner with McCarthy Tétrault LLP who heads up the firm’s aboriginal law group based in Vancouver.
Isaac says neither provincial nor federal governments have been able to keep pace and develop sustainable treaties or interim measures to allow business and First Nations to feel they are being brought into the governance model. The ability to participate in the mainstream economy is what many First Nation groups are looking for, he says. It’s a concern held by many who represent both First Nations groups and business entities. “As one chief told me, ‘We can’t eat rights and title,’” says David Bursey, a partner with Bull Housser & Tupper LLP in Vancouver. “A lot of First Nations are looking to build something for their community.”
When it comes to big business and aboriginal groups working together, there has been significant change in the last five to 10 years, says Bursey. “We counsel First Nations and companies not to wait for government; try to develop relationships directly and there can be great success in that. Most companies are already there — they would rather work out the relationships. Business wants certainty. They want to know what roles and relationships will govern the transactions and projects they are seeking to develop. There are lots of disputes over rights and title, but we’re trying to focus on sustainable economic enterprise.”
Bull Housser has also worked on rights and title cases and represented various parties in some major cases right to the Supreme Court of Canada, but where Bursey sees the big drive these days is really on the business side.
Rio Tinto Alcan is one example of a company that a decade ago was looking to develop better relations with the First Nations groups they deal with. In 2000, Rio Tinto Alcan decided it wanted a different kind of legal counsel to assist it with First Nations projects so the mining giant interviewed a number of law firms. “From the outset of our work with Rio Tinto Alcan, it was that they were more interested in building good relations with neighbouring First Nations communities than litigating. That interest fit well with our approach,” says Bursey. “They told us we were the only ones they interviewed who brought business lawyers to the meeting. We told them, ‘You can fight, but we would rather build things with you, and you need to start working on your relationships with the First Nations. It will take some time but it will pay dividends in the long run.’”
A decade later, Bursey says the approach seems to have worked. Rio Tinto Alcan’s landmark agreement in principle with the Haisla Nation in support of its primary metal operations in British Columbia was officially ratified by the Haisla Nation membership in March 2010. The Haisla Nation-Rio Tinto Alcan Legacy Agreement establishes a formal framework for the two organizations to work together for the next 30 years to maximize the opportunities and benefits of aluminum operations in Kitimat, B.C. It is, in essence, a private treaty between the company and the Haisla.
Rio Tinto Alcan is going through a major modernization of its smelter to reduce emissions and create efficiency. The agreement helps establish a base from which both sides can benefit. It also represents a $3-billion investment in the B.C. economy. The deal also helps resolve some of the long-standing disputes from the past, says Bursey, who admits encouraging big business and First Nations to work together towards agreements that serve both groups economically and socially is not a revolutionary idea, but emphasizes it requires a certain mindset.
The Haisla have also formed a tripartite partnership in the Kitimat Liquid Natural Gas plant on land the Haisla held, which recently obtained a permit to export held by Encana Corp., Apache Corp., and EOG Resources Inc. “That could be a $5-billion to $7-billion project that we will hear about later this spring as to whether it will go forward,” says Greg D’Avignon, president and chief executive officer of the Business Council of British Columbia. “It was a key opportunity to do something that is vital to British Columbia and Canada’s future, which is to enable the export of natural gas which is about $3.50 in Canada, but by exporting it to Asia the price goes up to $10 to $12. The Haisla have done a phenomenal job, as one example, but it isn’t happening in every corner of the province.”
The negotiate-versus-fight approach has also worked in areas where business is extremely competitive such as the Prince Rupert Port Authority, which competes for business with other ports along the West Coast. The port’s inside legal counsel says over the years it’s proven to be more fruitful to take a business law approach. “We’ve moved away from a litigation footing and more into a commercial type of discussion,” says Andrew Mayer, vice president for commercial and regulatory affairs with the Prince Rupert Port Authority. “We don’t look to retain litigators to negotiate deals with First Nations, we look to retain business lawyers with an aboriginal law background who have a track record for negotiating accommodation agreements with First Nations.”
The port reached a comprehensive settlement agreement in March 2011 with the Tsimshian First Nation in Prince Rupert with respect to the port’s existing Fairview Container Terminal for a project that will quadruple the size of the terminal to 2 million 20-foot equivalent units (containers). The comprehensive settlement agreement provides the First Nations people with contracting opportunities for construction of the facility and a commitment to provide employment during the construction and operations phases and provides an ability to get some benefits in the form of ongoing payments throughout the life of the project. “The solution has been to work with aboriginal rights and title in mind, but to strike arrangements with local First Nations to give them opportunity to participate in all phases of the project,” says Mayer.
The deal also includes a framework for dealing with other types of consultation along the way and that gives aboriginal groups certainty over what their entitlements are for the next 40 years. “It also gives us certainty knowing we settled those issues around container-related development for the next 40 years,” says Mayer.
It’s all about convincing First Nation groups and corporations that going in with a strictly winner-takes-all approach doesn’t work, says Bursey. “We always say we’d rather build things than fight. We can fight if necessary, but [what] will really help is getting some sustainable economic enterprise within the communities to help resolve a lot of the issues.”
These kinds of business deals have been embraced by corporations and native groups alike as B.C.’s treaty process drags on. A report issued recently by Sophie Pierre, chief commissioner of the B.C. Treaty Commission, referenced the frustration with how sluggish the treaty process has been, says Bursey. “It’s been almost 20 years with very little to show for it.” Isaac says government is frozen by not wanting to make tough decisions. “You generate risks by not making decisions,” he says. “In my view that’s probably the single biggest public policy issue in this area. Sustainability — are our governments putting in processes that are in fact sustainable over time?”
What frustrates Isaac is that the Supreme Court of Canada has, in his view, been consistent in its approach to First Nations issues. “The one single theme flowing out of every decision on [Charter of Rights] s. 35 and the duty to consult — some 30-odd decisions — the consistent theme is the willingness of the court to defer to the Crown. It is the Crown’s obligation, not the court’s, to do the balancing act between aboriginal and competing societal interests. This is the fundamental message flowing out of the case law.”
D’Avignon of the Business Council of B.C. calls the treaty process “stagnant” and a “millstone” around the neck of the economy in terms of not providing certainty for capital to be invested in the marketplace. For government, it creates uncertainty with respect to the relationship it has with First Nations in the future. The Business Council of B.C is actively engaged with government and First Nations, particularly around the energy and resource sector. In 2005, it identified the 10 key trends that would shape the B.C. economy through 2010. Expanding the role of First Nations in economic and business development was identified as the No. 1 trend affecting business. “It’s a very heterogeneous issue depending on the First Nation, the region of the province, the government. It’s not just government but federal and provincial governments. Then you discern that into three areas: permitting around ongoing operations, the second would be projects and significant investments to create opportunity and wealth, and the third is with respect to treaty work that gets done,” says D’Avignon.
Companies have the choice to make an investment in central Asia or central British Columbia, says D’Avignon, and at the end of the day it’s about the certainty of the opportunity and the return on investment. He adds that while it has a good plan in place, the province of B.C. and the federal government tend “to be timid” in their approach to consultation and accommodation issues and vague in creating clear expectations for what agreements can and should look like.
In his experience, Mayer says there have been challenges but he doesn’t blame the federal or provincial government. Some of the challenges relate to determining the nature and scope of First Nations’ aboriginal rights. “Those issues need to be considered prior to development and when there have been delays or difficulties it often arises out of a need for clearer direction from the federal government,” he says.
Lawyers say First Nations issues are where environmental law was at in the late 1980s. Companies have realized they can be viewed as progressive or good corporate citizens if they develop good relationships with First Nations groups. Building trust is perhaps the biggest hurdle. On the corporate side, there has to be a willingness to try to be transparent and open. Some may see that as a loss of control because it involves accommodation that has a cost attached to it. On the flipside, native groups often fear giving up something in trying to establish rights and title with the Crown in a more permanent way. “You can satisfy both of those concerns by putting the rights and title fight to the side, because a private company cannot confirm or deny rights and title — that’s for the Crown to work out, but you can work into a business relationship a collaborative economic venture that doesn’t affect rights and title,” says Bursey.
But companies can’t go with the approach that they can fly into a community in their helicopters and expect they can work business magic with First Nations. There has to be a high degree of trust and that means big business has to be clear about what its interests are from the outset.
D’Avignon says both provincial and federal governments need to have very clear, definitive timelines around how long is adequate consultation. “Some First Nations are being inundated with licence renewals and permit renewals and review as well as project reviews and they don’t have the capacity.” On the other side, he says, industry doesn’t have the capacity either. He predicts the tipping point is coming where projects will slow and/or operations be interrupted because the cost of doing business will exceed the company’s ability to manage it either from a personnel standpoint or pure cost standpoint.
Governments desperately need a plan, says Isaac, especially at the provincial level, given some of the ideas they are considering. For example, B.C. is looking at offering revenue sharing — upwards of 37.5 per cent of mining tax on new projects provided to First Nations. “I’m not opposed to it — my question is ‘has anyone done an economic analysis of how do we replenish the monies as mines close in British Columbia?’”
Isaac says he coaches his clients to look at First Nations issues as just another area of risk management in their business. “You have to look at aboriginal issues as you would any other legal or practical risk issue,” says Isaac. “It can take the emotion out of the issue and from my observation that has been extremely helpful for my clients.”
|Illustration: Huan Tran|
ustice Paul Perell cracked open a hornets’ nest last July when he delivered a decision from the Ontario Superior Court ordering a group of corporate defendants to file their defence in a proposed class action, even though the case hadn’t yet been certified.
The judge’s order in Pennyfeather v. Timminco Ltd. — a shareholder lawsuit — ignited a wave of commentary among class action practitioners, bloggers, and Twitterers. “This decision represents a marked departure from the prevailing procedure in class actions,” said an article co-written by Bennett Jones LLP defence litigator Robert Staley. Mary Jane Stitt, a partner at Blake Cassels & Graydon LLP, was more blunt. Defendants, she told the Globe and Mail, are now “being asked to fight the battle before you even know whether you’ll have to go to war.”
Although Perell’s ruling actually reflects the wording of Ontario’s class action statute, it undercuts a 15-year, unwritten custom in which defendants typically wait until a case is certified before filing their defence. Perhaps the noisy reaction to it was less aimed at the decision itself, and more an expression of years of built-up frustration among the defence bar — a sense that the certification game is becoming increasingly stacked against them, and that courts are offering advice, re-interpreting conventions, and otherwise ushering plaintiffs through the certification gates.
Perhaps Perell’s ruling was simply the last straw. “There’s been a real surge in the common-law provinces in a liberalization in the courts’ approach to certification,” says Adrian Lang, a class action litigator with Stikeman Elliott LLP. “I’d like to think as a defendant that we will start to see a bit of retrenching. . . . We certainly can’t get more liberal than we are right now.”
Certification may be simply a procedural matter, but the stakes are high for both sides. Corporate defendants say a certified class action creates lousy optics: an impression in the public’s mind that the company has committed a wrong, even though the merits of the claim have yet to be judged. For plaintiffs, certification can be a tool to apply pressure against a defendant to settle before the case goes to trial.
Lang and her colleagues in the defence bar say in the early years, Canadian courts outside Quebec took a more cautious approach to certifying cases, following the introduction of class action legislation in Ontario and British Columbia in the 1990s. Individual preliminary motions were routinely accepted from defendants in advance of
certification. And statements of defence were commonly withheld with the courts’ approval until after certification, a custom that emerged from Ontario (now Chief) Justice Warren Winkler’s 1996 decision in Mangan v. Inco Ltd. that judges had wide discretion to allow such delays by defendants.
Laila Brabander, assistant vice president and specialty claims manager for Chubb Insurance Co. of Canada, who manages litigation against corporate defendants insured by Chubb, says there’s been a “noticeable change” in the courts’ approach in recent years. “There’s no question that the pendulum has swung, and recent decisions likely suggest that certification is easier,” she says.
In 2005, for example, in the national residential schools class action Baxter v. Canada, Winkler again influenced the system by ruling that certification motions should be heard promptly, and should not be delayed by other motions. That led to an increasing reluctance by other judges to entertain a series of technical challenges by defendants.
Elsewhere there have been examples of judges helping plaintiff lawyers draft more sustainable pleadings, as Perell did before he certified the overtime labour class action McCracken v. Canadian National Railway Co. in 2010.
There are also cases — as in Smith v. Inco, recently overturned by the Ontario Court of Appeal — of judges actively rewriting common issues during a trial. “There’s a perception that the practice of some judges assisting plaintiffs in improving their pleadings is unfair to defendants,” says Sonia Bjorkquist, a class action litigator at Osler Hoskin & Harcourt LLP. “I wonder about whether it’s tipping the balance in favour of plaintiffs.”
Other lawyers say judges are behaving properly. After all, the purpose of class actions is to extend justice to large groups of people who otherwise might not receive it. Why toss out a proposed lawsuit with the correct germ of an idea, simply because it hasn’t been pleaded correctly by the plaintiff’s counsel? “In the CNR case, the plaintiff lawyers didn’t describe the common issues exactly the way they should have to get certified, so Justice Perell modified them. He was doing his job,” says Kirk Baert, a plaintiffs’ litigator at Koskie Minsky LLP in Toronto. “To me it’s not logical, in a claim of half-a-billion dollars, to say, ‘You lose certification because of the way you worded your claim.’ That’s not the purpose of the justice system, to have a series of trap doors people can fall into. Cases should be decided on their real merit, and sometimes there are pleadings problems.”
The trouble is that judicial re-working of plaintiff pleadings has become so common
that defendants now have trouble knowing what precisely to defend, says Lang. “It makes litigating prior to certification a challenge, because you’re dealing with a constantly moving target.”
Meanwhile in competition class actions, “every province in this country, I would argue, has more recently become overwhelmingly plaintiff-friendly,” says Katherine Kay, a competition law specialist with Stikeman Elliott LLP. The B.C., Quebec, and Ontario courts have since 2009 certified a series of price-fixing cases — including Pro-Sys Consultants Ltd. v. Infineon Technologies AG in the B.C. Court of Appeal — despite difficulties in showing how harm was passed down through a distribution chain to indirect purchasers. Two similar cases in B.C. produced different rulings — Pro-Sys Consultants Ltd. v. Microsoft Corp. and Sun-Rype Products Ltd. v. Archer Daniels Midland Co. — that were granted leave to appeal to the Supreme Court of Canada
on Dec. 1, 2011.
Kay says certification has become almost a foregone conclusion in the competition area, not solely because the courts favour plaintiffs, but because in light of the complexity of these cases — and the conflicting expert evidence — courts are passing the buck to trial judges rather than scrutinizing whether a proposed class action meets the certification test. As a result, a series of “messy” cases, as Kay puts it, with “unbounded and inappropriate” common issues and class definitions, are winding up at trial. “The only time you have to resolve the issue of whether or not it’s an appropriate case to be treated as a class action, the only kick you get at that can is on certification,” she says. “So I would argue it’s an abdication — that’s a strong word, I appreciate that — but it’s an abdication of the court’s responsibility to duck these issues on certification and say, ‘You know what, we’re not up to dealing with them, so lets certify it and leave it to the trial judge.’
“The courts have made a policy decision, I would argue, that class actions are good, and we’re not going to subject them to the kind of scrutiny that we do other cases.”
The access to justice that class actions offer large groups of citizens, defence lawyers say, is likely what’s motivating judges to ease the way for plaintiffs in many certification proceedings. That, and the desire to streamline lengthy, expensive, and drawn-out pretrial procedures, may be the impetus behind Perell’s ruling on the early filing of statements of defence. “I don’t see that as a particularly pro-plaintiff decision,” says Baert. “I’d say it’s intended to make it easier for judges doing these cases to have a grip on what’s in dispute, earlier in the case.”
In his decision, Perell argues that the early delivery of a statement of defence “could be a fresh step that could foreclose any subsequent attack by the defendant for any pleadings’ irregularities.” But defence lawyers warn that Perell’s desire to streamline class actions, if adopted by other courts, could have the opposite effect. Rather than making the pre-certification phase more efficient, it could force defendants to file numerous technical and substantive preliminary motions at the very start of the pre-certification process, before their defence-filing deadline. “We’ll have to see how it unfolds,” says Bjorkquist. “Allowing defendants to attack dubious claims or sloppy pleadings, or over-broad pleadings before engaging in the costly certification process, could actually improve the system. On the other hand it may also threaten access to justice, because requiring defendants to bring a variety of motions will simply delay certification. Think about it — you bring a motion, you lose, you appeal, etc.”
What’s more certain, says Bjorkquist, is that filing an early defence will mean more defence amendments in response to ongoing plaintiff amendments, and therefore higher costs for defendants, as the case proceeds through certification. More importantly, she says: “Is it fair that defendants are forced to plead earlier, and disclose positions or strategy before determining whether the plaintiff has met their burden under the legislation, as to whether the proposed class action should succeed at all?”
Of course it’s fair, says Baert. “In all other types of litigation, no matter how complex, defendants file defences at the beginning, within the time limits and the rules. They manage to do so without the sky falling, or the world coming to an end.” Baert also calls complaints about a plaintiff-friendly trend in the courts “a lot of smoke.”
“I certainly don’t think it’s remotely plausible to argue that judges in this country are bending over backwards to help plaintiffs,” he says. “You only have to look at, where do most judges who handle complex litigation come from — the corporate law side. Is it likely there’s this cadre of extremely liberal judges who are looking to completely open the floodgates of class action litigation by bailing out incompetent plaintiffs counsel? Seems unlikely to me.”
|Illustration: Sara Tyson|