Tuesday, November 30, 2010

140Law - Legal Headlines for November 30, 2010

Here are today's leading legal headlines from Wise Law on Twitter:
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Monday, November 29, 2010

140Law - Legal Headlines for November 29, 2010

Here are today's leading legal headlines from Wise Law on Twitter:
- Rachel Spence, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net
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Sunday, November 28, 2010

Notes on SiteMeter Stats vs Blogger Stats (and Blog Aggregators)

Stats:

This note will probably be of no interest unless you're a blogger, particularly one who uses Google's Blogspot platform and/or the SiteMeter tracking system. Or a diehard statistics junky.

While I hadn't noticed this previously, Blogger has installed a new statistics feature in its dashboard. While it does not track unique visitors, it does provide statistics for page views, post views, traffic sources (referrers and search terms) and various other items.

The statistic counts appear to commence as at July 2010.

I was quite surprised to note the Blogger stats' page view numbers are nearly double those recorded by SiteMeter, the service I've been using for a few years.

A plausible reason for this discrepancy was found at the Wordpress forum, via a comment in the thread, Dashboard Stats vs Site Meter stats:

Sitemeter will not record a page view if the visitor has been to any other page containing sitemeter code unless the page is refreshed. Sometimes even then it will not record the page view.

You can test this by visiting a page which has sitemeter on it, then visiting a page of a completely different site which has sitemeter and open stats.

Go to the second site's sitemeter stats and look for your visit in the reports. IT will not be there. Then go back and hit Ctrl Refresh (or equivalent) and review the stats again. You page will should then be recorded.

That's a good thing for SiteMeter users to know. If the explanation above is correct, visits are probably being drastically under-counted. If anyone knows more about this, please let us know.

On a related note, it's a bit of a regret that we didn't track stats at all for the first two or so years of this blog, so I really don't know how many people have actually visited us, cumulatively. I guess it may be more than I thought.

Whatever the number is, and we'll never know, I really do want to thank you for reading.

......
Aggregators

There's been an interesting debate on Twitter this weekend regarding law blog aggregators, and the appropriateness of third parties utilizing blogs' content via RSS feeds without prior consent of the originating blog.

I have aggregated in the past, on this blog and on Wise Law Reader, and have previously had a relaxed attitude toward this practice when others scoop from our content - probably because it happens so relentlessly, it would be futile to try to stop it.

It didn't take much of a discussion on Twitter, however, to cause me to conclude that blog aggregators should operate on an opt-in, rather than opt-out basis. In other words, your blog isn't included in an aggregator unless you ask that it be included in the aggregator.

While the Twitter discussion focussed specifically on a law blog aggregator site briefly hosted Friday by a local legal marketer who is not a lawyer, that's probably a distinction without a difference, moving forward.

As I feel its important to walk the walk on this, I won't be aggregating from other blogs on this site in the future without express permission in hand, and Wise Law Reader (which statistics everywhere tell me nobody reads) has been permanently retired.
- Garry J. Wise, Toronto
Visit our Toronto Law Firm website: www.wiselaw.net
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Friday, November 26, 2010

This Week At The Ontario Court of Appeal: 10-11-26

Each week at Wise Law Blog, we review recent decisions from the Ontario Court of Appeal.

Algarvio v. Allstate Insurance. The Algarvios sued Allstate for failure to pay on an insurance claim; Allstate denied coverage based on the Algarvios' failure to notify Allstate about their 16-year-old son driving the vehicle, and at trial the jury found for the Algarvios. Allstate appealed, arguing that the jury's answer to a trial judge's question was improperly affirmative. The question at issue was whether or not the jury could find that the Algarvios had a duty to notify Allstate about their son driving the car, and whether they had fulfilled that duty.

Allstate, in its appeal, argued that there was no evidence to demonstrate that the Algarvios had fulfilled the duty. The Court of Appeal disagreed and dismissed the appeal, pointing out that at trial Ms. Algarvio testified about attempting to contact Allstate. That Allstate disputed her evidence did not, in the Court's view, mean that there was no basis for the jury to believe that evidence. Read-the-whole-case rating: 2.5 for a quick read that's a good example of a appeal based on improper evaluation of factual data rather than on improper legal reasoning.

Consulate Ventures v. Amico Contracting and Engineering. This appeal was on a motion by Consulate Ventures (the plaintiff) to remove Alan Lenczner as counsel for Amico (the defendants) on the grounds that Lenczner represented Consulate Ventures as counsel over a decade ago on this same matter. Lenczner's argument was that given that his original and only meeting with the plaintiff was over eleven years ago, and that he did not remember anything of it, he could represent the the defendant without compromising his duty of confidentiality to the plaintiffs.

The Court disagreed. Although accepting Lenczner's statement that he did not remember anything of his previous work for the plaintiffs as fact, the Court found that the duties of lawyers to former clients were too important to let slide in a matter such as this, and that Lenczner's ability to get around the duty of confidentiality did not obliviate the duty of loyalty owed to his former clients. Read-the-whole-case rating: 3.5 for a lengthy discussion of an aspect of civil representation that rarely is discussed at this level of jurisprudence.

Gentles v. Intelligard International. An appeal by two individuals who were arrested by a private security service on private property. One of the two young men arrested in fact lived on the property, so they sued the security service for false arrest, false imprisonment, assault and battery, among other charges. The judge found the security guards had reasonable and probable cause to arrest the young men, and dismissed all claims. The young men then appealed the finding on the issue of arrest and imprisonment only.

The Court allowed the appeal. They noted, firstly, that the jury's decision was inconsistent with the facts at hand (including a narrative of the young men's arrest which made no sense given the facts not at issue) and that the jury's answers to questions put to it were puzzling. Although the Court disagreed with the appellants' argument that a resident of a property could never be arrested under the Trespass to Property Act, they emphasized the need to demonstrate reasonable and proper grounds for arrest.

The following analysis of whether or not there were reasonable and proper grounds for arrest is extensive. Justice Juriansz goes through all of the factors surrounding the young men's arrest in comprehensive detail, and the decision at this point becomes extremely valuable for any attorney seeking persuasive precedents surrounding an arrest: Juriansz points out that use of vulgarity, belligerent attitude, and the high crime rate of the area in general - among other elements - do not constitute reasonable and proper grounds for an arrest. Read-the-whole-case rating: 4, for an extremely comprehensive and reasable discussion about the arrest power.

- Christopher Bird, Toronto
Visit our Toronto Law Firm website: www.wiselaw.net
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140Law - Legal Headlines for November 26, 2010

I hope everyone's having a wonderful Friday! If not, here's something that will make you smile.
Now for today's leading legal headlines from Wise Law on Twitter:
- Rachel Spence, Toronto


Visit our Toronto Law Firm website: www.wiselaw.net
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Thursday, November 25, 2010

Blogging, Responsible Journalism and Damages for Libel

The wild, wild west of the Canadian blogging wilderness is clearly being tamed by the Ontario Superior Court of Justice.

In separate rulings issued in the past week, two well-known Canadian political bloggers have been found liable for defamation arising from posts on their blogs.

The November 18, 2010 ruling of Ontario Superior Court Justice Robert Smith in Giacamo Vigna v. Ezra Isaac Levant finds the Defendant, blogger and lawyer Ezra Levant, liable for damages in the sum of $25,000.00 for defamatory blog posts, and provides a thorough discussion of the law of libel, as it affects bloggers and journalists:
[140] The fact that Levant is a lawyer is an aggravating factor as he either knew or should have known that continued ridiculing of another lawyer using the internet, and accusing another lawyer of fibbing to the Tribunal, of acting with contempt and acting unethically before a Tribunal, without making a diligent inquiry to verify that his facts were accurate and true, and when he used the manner in which Vigna requested an adjournment in order to further his objective of denormalizing Human Rights Commissions was defamatory conduct. He also continued to republish the same inaccurate statements after he was given notice they were considered defamatory and he was asked to stop.
The Judgment is worthy of a careful read. Omar Ha-Redeye has a thorough analysis of the case at Slaw.

Similarly Mr. Justice Dennis Power's November 23, 2010 default endorsement in Robert Day v. Patrick Ross, while brief (as the action was undefended), leaves little room for doubt as to the courts' willingness to assess significant damages for defamation, where malice is proven:
... The Defendant's conduct detailed in the Statement of Claim and in this motion was clearly malicious. His conduct in this litigation was, as well, malicious.
In the Day case, initiated by the writer of the Canadian Cynic blog, damages of $75,000.00 were assessed against blogger Patrick Ross, together with costs of $10,000.00.

In both cases, the offending bloggers were also ordered to remove the impugned blog posts.

- Garry J. Wise, Toronto
Visit our Toronto Law Firm website: www.wiselaw.net
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140Law - Legal Headlines for November 25, 2010

Here are today's leading legal headlines from Wise Law on Twitter:
- Rachel Spence, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net
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Jennifer Stoddart, Canadian Privacy Commissioner, Reappointed

The Globe reports today on the reappointment of Jennifer Stoddart, Canada's Privacy Commissioner who has established an international profile in her successful quest to require Facebook to address its chronic privacy concerns.

She has also taken on Google Street View, Google Buzz, and Canada's Veteran's Affairs Department over privacy breaches in recent months.

Ms. Stoddart has been appointed by the Prime Minister for a further three-year term.
- Garry J. Wise, Toronto
Visit our Toronto Law Firm website: www.wiselaw.net
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Wednesday, November 24, 2010

Facebook vs. FaceTime?

As Facebook moves to trademark the word "Face," thoughtful Tweeter Siobhan Osullivan wonders whether a battle of digital giants is looming:
What will happen to #iphone face time? "@wiselaw: Facebook Allowed to Trademark the Word 'Face' - PC Magazine http://www.pcmag.com/article2/0,2817,2373258,00.asp"
For the uninitiated, FaceTime is the iPhone4 videoconferencing function, permitting iPhone users to conduct video calls with each other via WiFi connections.

(It's sort of like the Jetsons, but mobile).
- Garry J. Wise, Toronto
Visit our Toronto Law Firm website: www.wiselaw.net
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140Law - Legal Headlines for November 24, 2010

Here are today's leading legal headlines from Wise Law on Twitter:
- Rachel Spence, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net
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The Anonymous Judge in the Globe and Mail

Here's something you don't - and very likely shouldn't - see every day.

Anonymous comments, attributed to "an Ontario judge," appear in this Globe and Mail report by writer Kirk Makin on a mistrial declared November 22nd in the second degree murder trial of Erika Mendieta at Toronto.

From the Globe report:

An Ontario judge with decades of experience as a trial lawyer and jurist said that Mr. Alexander likely felt a “strong emotional investment” in the case and wanted to see Ms. Mendieta testify.

“I’m quite upset about it,” said the judge, who asked to remain anonymous. “I find it very, very unprofessional and a form of egregious conduct. I have no doubt the Attorney-General has to distance himself from this. I would think a complaint would have to be filed with the disciplines section of the law society.”

The judge said it would not surprise him if someone – including the trial judge in the Mendieta case – filed a professional misconduct complaint at the Law Society of Upper Canada, the governing body for Ontario lawyers. “I know some judges have filed complaints about lawyers who appeared before them and acted unprofessionally,” he said.

The mistrial was caused by allegedly distracting and intimidating facial gestures by a Crown attorney during the testimony of the accused. The Crown involved, Paul Alexander, had carriage of a previous prosecution of these charges that had also ended in a mistrial. He was assisting prosecutors in the courtroom, but not robed or officially participating in this re-trial.

It is most unusual for judges to make public comments, outside their Reasons for Judgment, on events that occur in courtrooms, generally, let alone at trials conducted before other judges. The direct, condemnatory tone of these quoted views on the motives and actions of the Crown involved is especially unusual, particularly given that the quoted source was not apparently present in the courtroom to observe the conduct that is discussed.

While this form of public discussion by the nation's judges may not be specifically prohibited by the Canadian Judicial Council's Ethical Principles for Judges (leaving aside the issue of anonymity), the commentaries in the Principles on judges' participation in political and public debate do seem informative:
D. Political Activity
3. Judges should refrain from
...(d) taking part publicly in controversial political discussions except in respect of matters directly affecting the operation of the courts, the independence of the judiciary or fundamental aspects of the administration of justice;
Commentary:
D.1 This section deals with out of court activities of judges. In particular, it addresses political activity and other conduct such as memberships in groups or organizations or participation in public debate and comment which, from the perspective of a reasonable, fair minded and informed person could undermine a judge’s impartiality as regards issues that could come before the courts.
D.2 Commentators are unanimous that “all partisan political activity and association must cease absolutely and unequivocally with the assumption of judicial office.” Two considerations support this rule. Impartiality, actual and perceived, is essential to the exercise of the judicial function. Partisan political activity or out of court statements concerning issues of public controversy by a judge undermine impartiality.They are also likely to lead to public confusion about the nature of the relationship between the judiciary on the one hand and the executive and legislative branches on the other. Partisan actions and statements by definition involve a judge in publicly choosing one side of a debate over another. The perception of partiality will be reinforced if, as is almost inevitable, the judge’s activities attract criticism and/or rebuttal. This in turn tends to undermine judicial independence. In short, a judge who uses the privileged platform of judicial office to enter the political arena puts at risk public confidence in the impartiality and the independence of the judiciary.

D.3 Principles D.3(a) and (b) are widely accepted examples of overt political activity in which judges should not engage after appointment. Judges should also consider whether mere attendance at certain public gatherings might reasonably give rise to a perception of ongoing political involvement or reasonably put in question the judge’s impartiality on an issue that could come before the court.
Are other ethical issues triggered by a judge's insistence on anonymity in the public discourse?

What are the broader ramifications of incognito judges participating via the press in public water-cooler discussions of the day-to-day, sensational events in the courts? Do such anonymous comments maintain and enhance confidence in the impartiality of the judiciary? Is the right to fair hearing prejuduced for individuals targeted by anonymous judicial comments? Should the prestige of judicial office be used anonymously to buttress a public statement, without accountability? Is there an appearance that such anonymity could be employed to circumvent ethical norms around public comment by the judiciary?

The media's typical reliance on anonymous comments by political figures is at least occasionally controversial. Any trend toward further armchair quarterbacking in the press by judges under a veil of anonymity could not possibly be a good thing for the administration of Canadian justice.

That is a slippery slope, if ever there was one.
- Garry J. Wise, Toronto
Visit our Toronto Law Firm website: www.wiselaw.net
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Tuesday, November 23, 2010

"...A Place Where Both Prostitution and Polygamy are Legal"

Today's snark from Law.com: What Happens in Canada Stays in Canada:
If you are not into the whole "monogamy" thing, Canada may soon be the place for you. If two cases now going through the court system go the right way wrong way the same way, Canada may soon be a place where both prostitution and polygamy are legal.
The Ontario Court of Appeal will rule Saturday on whether to continue a stay of a September 28 Ontario Superior Court decision that struck down Canada's anti-prostitution laws.

And in British Columbia, Canadian Press reports that Supreme Court Justice Robert Bauman has denied an Application by CBC to televise hearings, commenced today, which are considering whether Canada's anti-polygamy laws should be upheld.
- Garry J. Wise, Toronto
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Ontario Employment Law: Wrongful Dismissal and the Common Employer Doctrine

Under the Ontario Employment Standards Act, related or associated companies are deemed to be "one employer" for the purpose of protecting the benefits to which employees are entitled to under the Act.

In practical terms, this means that multiple companies can be jointly and severally liable for severance and termination payments upon a without-cause dismissal. In this way, the Act adopts and "statutizes" what in the common law context is known as the common employer doctrine.

In Ontario, the common law's common employer doctrine has been considered in several wrongful dismissal cases.

In Gray v. Standard Trustco (Trustee of) (1994), 8 C.C.E.L. (2d) 46 (Ont. Gen. Div.) Ground J. said:
... it seems clear that for purposes of a wrongful dismissal claim, an individual may be held to be an employee of more than one corporation in a related group of corporations. One must find evidence of an intention to create an employer/employee relationship between the individual and the respective corporations within the group.
To ensure recovery in a wrongful dismissal action, employees may have to go beyond suing only the "paymaster company," or the company whose name appears on their paycheques. An empolyee may need to consider adding related companies and in some cases, the main principals of related companies, as defendants.

In Downtown Eatery Ltd. v. Ontario, an employee sued his "paymaster company" for wrongful dismissal. Following a trial, he was awarded substantial damages. However, as it turned out, the defendant company had no assets. As a result, the employee had to take a subsequent action against all the related companies and the two main principals of all the companies in an effort to widen his net of potential sources of recovery.

If you have been wrongfully dismissed, you should consult a lawyer who can consider with you whether you were employed by more than one company for the purposes of determing the contractual and fiduciary obligations which are owed by the employer under both the Employment Standards Act and at common law.

These factors will guide determinations as to which related companies and controlling individuals should be named as defendants in a wrongful dismissal action.
- Robert Tanha, Toronto

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140Law - Legal Headlines for November 23, 2010

Here are today's leading legal headlines from Wise Law on Twitter:
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