Friday, December 31, 2010
Tuesday, December 28, 2010
Saturday, December 25, 2010
Friday, December 24, 2010
Harris v. Glaxosmithkline Inc. A class action against the the pharmacorp responsible for Paxil, a widely used antidepressant. The class suit alleged that GSK Inc. misused the Patent Act to delay the entry of a generic Paxil equivalent onto the Canadian market and thus profited unjustly by selling at an inflated price. At trial level, GSK moved to strike the claim and dismiss the action; the judge agreed on the basis that the pleadings did not disclose a viable cause of action against the defendant.
The Court of Appeal upheld the dismissal of action, considering each of the appellants' arguments in turn. They dismissed a potential tort of abuse of process on the basis that the common law precedent is that liability does not exist when the defendant employs regular legal process, even if they do so with bad intentions. For much the same reason they dismissed the potential tort of conspiracy to injure, on the basis that again the defendant was merely using the existing legal framework of patent regulation in a proper manner (albeit in a way that ended up causing harm to the class). Further, although the Court agreed with the appellants that the trial judge's decision to analyze prior decisions where GSK had failed to successfully sue makers of generic drugs and then claim that the appellants' allegations of sham litigation were "patently ridiculous" was not respectful of the plaintiffs' action, they nonetheless agreed that the pleading of sham litigation did not disclose a viable cause of action against GSK for the class. Read-the-whole-case rating: 2 for a decision that serves to illustrate the process of a class action being stripped down and found wanting.
Vanos v. Vanos. Following a divorce trial, the divorcing husband raised 14 issues on appeal. The Court of Appeal was only willing to consider seven of them. They considered the lump sum award of spousal support made by the trial judge as appropriate, given the appellant's history of failing to honour court orders for support and that the trial judge found that the appellant tended to put his own financial interest ahead of his former wife and his children. The Court also agreed with the Trial judge that that spousal support should be retroactive to before the date of the first support order, since the appellant knew the respondent would require support before that time.
The Court also dismissed the appeal regarding the disposition of a jointly-owned time share, which the appellant wished to remain jointly owned and which the trial judge had ordered the respondent wife to transfer her interest to the appellant. The Court suggested that since the appellant had assumed exclusive use of the time share post-separation, it made sense for the trial judge to order disposition of the property thusly.
The Court did agree with the appellant on several grounds, however. They agreed that his (lesser) 2008 income was the proper measure by which to calculate spousal support, as opposed to the greater 2007 income which the trial judge used. They also agreed that the trial judge had no grounds to order that the appellant vest a portion of his RRSPs in order to pay an outstanding line of credit, and that a phantom stock payment made in 2007 was post-valuation date and should not be therefore included in the equalization. However, the Court then pointed out that many of the appellants' arguments were simply him seeking to re-try the case from trial, and were dismissive of that attempt. Read-the-whole-case rating: 3.5 for a good example of how a trial judge can address an especially contentious party in a divorce trial and have it stick; in this case, most of the decisions that went against the appellant were upheld.
Ontario v. Phaneuf. Another class action, this time on behalf of individuals held for mental assessment under s.672.11 of the Criminal Code who were detained in a jail rather than in a hospital. The Divisional Court dismissed the claim for lack of a viable action; Ms. Phaneuf, representing the class, appealed the dismissal. Her grounds for the action which she chose to appeal were threefold: that her s.7 and s.9 Charter rights were violated by detaining her in a jail rather than in a hospital bed; that detention in jail rather than in a hospital bed was a breach of the province's fiduciary duty to her; and that the Crown negligently failed to comply with the order issued in R. v. Hussein, where Desmarais J. stated that the government was to have sufficient hospital beds available at all times for all such assessments. Ms. Phaneuf acknowledged that her claims depended on the existence of a duty on the Crown to place assessees in the hospital immediately, rather than to place assessees in the hospital as soon as a bed became available.
In regards to the appellant's first cause of action, the Court found that s.672.11 and its related provisions do not demand that custody be limited only to within a hospital, and further suggested that, since the way assessments are handled under the Code demands they be handled speedily, therefore any reading of the Code in this matter should be undertaken with the view that assessments should be a minimal burden to the assessee.
The fiduciary argument was denied by the Court in a single paragraph, as citing the fiduciary duty of the province to its citizens, in the Court's view, demands that that duty be to act in the public interest, as opposed to the specific interest of an assessee. (Clearly the Court felt that these two interests would work at cross-purposes, which is interesting in and of itself.)
In regardsto the argument stemming from Hussein, the Court pointed out that in Hussein, Desmarais J. never in fact made an order, but instead only cited reasons for her judgement, which could not in and of themselves be binding orders upon the Crown. (Earlier in the decision, the Court also stated that to the extent that Hussein could be read as requiring immediate transfer of assessees to hospitals, that case was wrongly decided.)
Although the Court was not unsympathetic to the plight of mental assessees in Ontario, and indeed added a postscript specifically to make it clear that their decision should not be read as condoning the warehousing of the mentally ill in jail, they ultimately upheld the dismissal. Read-the-whole-case rating: 3.
Thursday, December 23, 2010
As of January 01, 2011 various Small Claims Court forms will be replaced including:
- 1B: Request for Telephone or Video Conference
- 7A: Plaintiff’s Claim
- 8A: Affidavit of Service
- 9A: Defence
- 1B: Default Judgment
- 13B: Consent
- 15A: Notice of Motion and Supporting Affidavit
- 20A: Certificate of Judgment
- 20E: Notice of Garnishment
- 20E.1: Notice of Renewal of Garnishment
- 20F: Garnishee’s Statement
- 20G: Notice to Co-owner of Debt
- 20H: Notice of Examination
- 20I: Financial Information Form
- 20J: Warrant of Committal
- 20M: Affidavit of Default of Payment
- 20Q: Notice of Garnishment Hearing
- 20R: Notice of Termination of Garnishment
All of the aforementioned forms can be found on the Ontario Court Services website.
Here are today's leading legal headlines from Wise Law on Twitter:
- Cheerleader taking free-speech suit to high court http://t.co/nsAB5rn via @sfgate
- Better get a lawyer: schoolgirl warned - Sydney Morning Herald http://is.gd/jgOlJ
- Early R.I.D.E. Stats Show More Suspensed Licences http://is.gd/jgO1D
- Alaska high court rejects claims in Senate race http://is.gd/jgNRb
- Popular Legal Topics in 2010 http://is.gd/jgNrf
- Slaw Makes Bruce Carton’s 10 “Go-to Blogs” Of the Year http://is.gd/jgNoC
- SLAPP Panel recommends anti-SLAPP law http://is.gd/jgNje
- Clawbie 2010 Nominations Roundup http://is.gd/jgNi6
- Litigation in Canada: 6 interesting facts http://is.gd/jgN1u
- Fertility clinics up to provinces to regulate, top court rules - Toronto Star http://is.gd/jgMWZ
- G20 officer sombre at SIU appearance - Metro Canada - Toronto http://is.gd/jgMOY
- Kevin O'Keefe: Law blogs remain the one constant among social media http://t.co/j4JKlcM
- Ernst & Young Accused in NY Suit of Helping Lehman Hide Billions in Debt http://is.gd/jeVZH
- CanLII Seeks New President http://is.gd/jeQre
- Judge finds ‘increasing’ difficulty in seating marijuana jurieshttp://is.gd/jeQ81
- Maple Leafs 'fan' charged after throwing waffles on ice http://is.gd/jeQ5r
- SCOC gives provinces sway over reproductive rules http://is.gd/jeQ4n
- Taking clients from another lawyer is not actionable - Financial Posthttp://is.gd/jePSU
- With Obama's Signature, 'Don't Ask, Don't Tell' Is Repealed (Sheryl Gay Stolberg/New York Times) http://is.gd/jePE4
- Rehab employee fired after Lohan story http://is.gd/jePAP
- Craigslist pulls all adult services ads: state official http://is.gd/jeP9q
- Mandatory Mediation and the Shrinking Trial Bar - I'm squarely in the camp that believes mandatory mediation in Ontario civil cases has been a great gift to the public and the legal profession. Given the high rate of settlement through mediation, however, and the very low percentage of cases that make it to trial these days, it appears to me that the Ontario litigation bar might ultimately have to evolve into two discrete specialties - dispute resolution and trial advocacy. While most litigators are now well able to switch hats as required, it is a reality that the skills utilized in these two critical processes are not readily interchangeable and fewer and fewer litigation lawyers of the future will have the opportunity to develop their trial chops through actual experience in the courtroom. The increasing use of summary judgment motions to achieve final disposition of cases under Ontario's new rules will only compound this problem. How will legal educators and regulators respond?
- Small Claims Courts aren't So Small Anymore - One year into Ontario's new, $25,000.00 Small Claims Court limit, I am more than a little impressed with the speed at which cases are being processed, in the Toronto Small Claims Court system, at least. While we probably won't have statistics for a while on the actual caseload increase this branch of the courts has experienced, so far, the system seems to have held up well, and there's no sign it has buckled at all under the pressure. Settlement Conferences are typically scheduled within three months or so following the filing of a Defence. Trial dates are set within a similar time frame thereafter, with a full turnaround to trial happening within six months or so. That's a fairly remarkable record, and a great success for the Attorney General's office. A pet peeve, however, is that lawyers' offices are not consulted by the court before it schedules appearance dates. This leads to schedule conflicts, too many adjournments due to counsel's unavailability, and inefficiencies in the system that could easily be avoided.
- My Twitter Tiff with Simon Fodden - Simon got a bit peeved at me a few months back for tweeting too much. I'm not sure if he stopped following me, but he certainly made it clear my multiple Twitter posts were bogging down his feed. Since then, I've tried to do my mass-volume tweets (many of which find their way into our daily 140Law reports) during off-hours, so people's feeds don't get too overwhelmed. Having said that, our Twitter follows have quadrupled since we started doing these posts, so hopefully the benefits outweigh any inconvenience for most. Professor Fodden and I did get over it, by the way, and as readers will know, he is one of my CLawBie nominees this year.
- Employment Law Reform - Wouldn't most Ontario wrongful dismissal litigation be eliminated if the province's Employment Standard Act was amended to provide for mandatory, minimum severance payments of (for discussion purposes) three weeks per year of service upon termination without cause, unless the parties have agreed to a higher amount, with further common law claims limited to cases where the duration of employment exceeds five years or other aggravating factors (such as inducement, bad faith, harassment, discrimination or misrepresentation) can be demonstrated? What is the public policy justification for a statutory regime that establishes minimum severance standards that are so much lower than the compensation inevitably granted by the courts?
- Family Law Reform - In a modern world where both parents are typically employed full-time and more often than not, they have jointly parented their children before a separation, the time has clearly arrived in Canada for a presumption that joint custody is in the best interests of children upon separation, unless a court can be convinced otherwise. Just as the introduction of the Child Support Guidelines eliminated a huge proportion of the nation's litigation over quantum of child support, a rebuttable presumption of joint custody could take most custody squabbles of the table. It would further enshrine a legally-mandated culture of cooperative parenting after separation and eliminate the invitation to conflict now presented by current legislation that offers little guidance beyond a "best interests" test that is subjectively so pliable that it brings out the worst in just about everyone caught up in a high conflict separation. With judges now openly mocking the behaviour of custody litigation's worst offenders, perhaps the solution lies in addressing our anachronistic family law legislation. Too often, it invites adversity, rather than cooperation, within families in crisis.
- The New Ontario Rules of Civil Procedure - Just a question: How does more needless paperwork and a maze of extra administrative steps at nearly every juncture of a lawsuit create improved access to justice?
- Technology in the Courtrooms - ...and in particular, mandatory videoconferencing for nearly all motions, set-date hearings, (and hearings to determine the date of set-date hearings) may be 80% of the solution to most of our access to justice problems. One of the reasons litigation is so expensive is that the public pays for so much lawyer waiting time. Lawyers are often required to linger in court for several hours, waiting for short procedural hearings to be reached on long court lists. Wouldn't it make a lot more sense if lawyers remained in our offices, video cameras ready, and addressed other productive matters as we wait for the court to contact us when the Judge is ready to hear us and we're "on-deck?" That way clients would pay only for the 20 or 30 minutes of actual video hearing time, rather than the hours of dead, waiting time. Please explain to me why this isn't now happening. I don't want to hear about infrastructure. If need be, do it by Skype. But do it (end of rant).
- Is blogging dead? No. But I do tweet a lot of stories I might have blogged about in the past. And that's a good thing. A headline or short blurb often tells you everything you really need to know in order to stay reasonably current. But sometimes you want the details and the analysis. That's what blogs are for - still. Will this always be the case? Probably, in some incarnation or the other, but it is a positive development that we also have the microblogging option to make a point, short and sweet.
- Facebook Pages, Like Buttons and other Busts from the Man of the Year - Facebook is a wonderful tool, but most of its new initiatives are gimmicky, and seem to lose steam shortly after the fade of an initial burst of hype that insists the digital world has yet again forever been changed.
- 25 Years of Law - April 2011 will mark the 25th anniversary of my call to the Ontario Bar. This is a bald fact I find extremely bewildering, particularly coming on the heels (as it does) of a reference to me elsewhere in the blawgosphere as one of Canada's "elder statesmen of legal blogging." Time does not stand still, so they say. Someone should throw me a party, I think. And can I possibly hope for a Stanley Cup in Toronto at least once before I retire in about 35 years?
- The G20 was the Story of the Year - I haven't written much about the G20 on Wise Law Blog, largely because of a case I am involved in. I must frankly say, however, that the Toronto G20 debacle represents the absolute low point in my lifetime for the rule of law and protection of civil liberties in this nation. May it not be a sign of things to come.
- The Small Firm is the Future of Law - I poked a bit of fun in Monday's CLawBie nominations post at legal pundits who are forever predicting the end of the legal profession's universe. These dire forecasts are inevitably based on some development adversely affecting the continent's largest law firms. What these pundits often fail to consider is that a primary cause of the tremors on BigLaw's fault lines is the increasingly effective competition large firms face from smaller firms via the internet for BigLaw's traditional client base. The largest firms used their size, stature and decor for decades to play a smoke and mirrors game that implied they deliver superior service. Small firms could not successfully compete with that imaging when cost-prohibitive mass media was the only means of reaching the wider public with information. That has changed forever. Many smaller firms are enjoying great success and growth. The market for legal services is not shrinking. Larger firms are just getting less of the pie, because they no longer have a built-in optical advantage. That is not a crisis for the legal profession. It is a breakthrough.
- My RSS Reader is Getting Awfully Full - And there's nothing I want to cut from it. Oy, that's a lot of reading.
- Omar Ha-Redeye - I am fortunate that law blogging has facilitated a good friendship with this rather remarkable and knowledgeable gentleman, now completing his articles. Jumping from Law Is Cool to the Lawyers Weekly in one year or less, he is already a major player and clearly is a future leader of and in our profession.
- OMG! Law Talk - Hopefully, Omar, Michael Carabash and I will find a bit of time over the holiday break to do another OMG! Law Talk taping. I intend to ask Michael all kinds of questions - on tape - about his Dragon's Den appearance (still not aired) and hopefully, we can all watch him squirm under my cross-examination to avoid breaching his confidentiality agreement.
- Michael Carabash has a new legal comedy vignette series at Dynamic Lawyers, by the way. Check out BLAW - Episode 1 - Reducing Taxes.
- Barack Obama - I'm not terribly impressed by his lack of engagement (particularly given the wallop of his charisma, when he unleashes it), but style aside, he does seem to be stringing together an awfully impressive list of accomplishments, no?
- Articling Students Should be Permitted to Do More In Court - Yet another obvious part of a solution to the Ontario access to justice dilemma is to permit articling students to appear in Family Courts and at non-substantive civil hearings before judges that are now restricted to lawyers and unrepresented litigants. Such a change would enhance students' training, and provide a further cost-effective option for litigants.
- Mandatory Continuing Legal Ed for Ontario Lawyers Arrives in 2011: Will Law Blogging Meet The New "Writing" Criteria? - The Law Society of Upper Canada's Continuing Professional Development Guidelines' - Eligible Educational Activities seem to leave quite a bit of wiggle room on that question, but my interpretation is that seriously-crafted, quality law blog posts on case law, law reform, and legislation, among other things, will likely qualify. The requirements are below:
Writing and editing books or articles (to a maximum of 6 hours per year)The content must be law‐related and within the CPD definition, must have been prepared solely by the person seeking the credit, and intended for publication or use in course materials, rather than primarily for personal use or marketing purposes. Credit for an article or book may only be claimed once. The credit may also be claimed for editing legal texts or case reports and for preparing case headnotes, with the same restrictions as set out for writing. There is no limitation on the audience for whom the work is
- Launching our Law Office Management Software in 2011 - In 2011, Wise Law will be launching a full featured law office management tool with a lot of bells and whistles that uses a simple desktop platform to integrate and automate a typical law firm's ordinary daily tasks, from accounting to docketing to document generation, ticklers and scheduling. We've been quietly working on it for several years and are very proud of the product we have built. Stay tuned for updates and announcements.
- ClawBie Nominations - We have received a number of very generous 2010 ClawBie nominations and mentions from some of this nation's most respected and gifted law bloggers. I am honestly humbled by their kindness and support. My thanks to Dan Michaluk, Erik Magraken, Antonin Pribetic, Professor David Doorey, David Bilinsky, Donna Seale, and Todd Harrison of Precedent.
Wednesday, December 22, 2010
- Ontario court overturns Tory campaign finance ruling | iPolitics:http://bit.ly/fdX9v7
- Justices Unbound - Justices John Paul Stevens, Sandra Day O'Connor and David Souter are far from retiring in retirement http://goo.gl/5QhGy
- Feds to pay $2.5 million over 'terrorist' wiretaps http://is.gd/jdlC1
- New EU Divorce Rules http://is.gd/jdle7
- Facebook vs. Twitter: An Infographic - A demographic comparison of Facebook vs. Twitter users http://links.visibli.com/links/cb9a6c
- Comcast, Verizon, AT&T, Time Warner Cable and wireless carriers 'win' in Net Neutrality update http://is.gd/jcHk9
- Rob Ford’s confusing university life http://is.gd/jcH9s
- Franchisees launch $1-billion suit against Shoppers Drug Mart http://is.gd/jcH1R
- UK plan to block online pornography ‘not possible, ISPs say http://is.gd/jcFWj
- Toronto Cop Faces Charges For G20 Arrest Of Protester http://is.gd/jcFMR
- Staffer at rehab center accuses Lindsay Lohan of battery http://is.gd/jcFwP
- Bits: Why Apple Removed a WikiLeaks App From Its Store http://is.gd/jcFrW
- Right wing radio host Hal Turner gets 33 months for threats to judges http://is.gd/jcEQc
- Ontario Expands Laws Against Ticket Scalping http://is.gd/jcjGV
- Loans for lawsuits a growing trend - Globe and Mail http://is.gd/jcjyR
- Ontario lawyers go back to school http://is.gd/jcjdI
- Lord Chief Justice of England and Wales Offers Guidelines on Twitter in the Courtroom http://is.gd/jciLX
- Facebook comments: just cause for termination? http://is.gd/jciAP
- The Caucus: Last-Ditch Move to Block ‘Don’t Ask’ Repeal http://is.gd/jchUj
Tuesday, December 21, 2010
Here are today's leading legal headlines from Wise Law on Twitter:
- NY to file civil fraud charges against Ernst & Young http://is.gd/j8lhd
- Charges Against G20 Protester Dropped http://is.gd/j8kZ8
- iPad dooms paper products http://is.gd/j8kJM
- Law Profs v. West, Part II http://is.gd/j8jIz
- How Long Should You Keep Your Closed Files? http://is.gd/j8jsJ
- Fired Lawyer and Sex Blogger Sues Allen & Overy http://is.gd/j8irW
- Quiet deal on Obama's judge nominees in the Senate http://is.gd/j8ifP
- LAO seeks $570K over 'improper payments' to lawyer - Law Times http://is.gd/j8dP6
- Bell fined $1.3M for breaking do-not-call rules http://is.gd/j8d1h
- Taibbi on the fall of Ernst & Young http://is.gd/j8dvn
- US Considering Online Privacy “Bill of Rights” http://is.gd/j8cMQ
- Assange lost tooth, was housed with child killers in prison http://is.gd/j8b2Y
- Harassment in the workplace: preventive measures may limit liability http://is.gd/j89Pq
- Cops haul smoker on window ledge to psych ward http://is.gd/j89x0
- How to Keep the Cloud From Bursting in Litigation http://is.gd/j88DJ
- Canadian-Arab Christians targeted on website http://is.gd/j87EG
- Executions continue steady U.S. decline http://is.gd/j87uB
- F.C.C. Is Set to Regulate Net Traffic http://is.gd/j77qb
- Facebook is the new town hall - ABC Online http://is.gd/j77nU
- Top UK Judge OKs Reporters’ Use of Twitter, Texts & E-Mail in Court http://is.gd/j5WXZ
Monday, December 20, 2010
Blogging - and all social media, for that matter - is really about building relationships. Relationships with your readers, your peers, your clients and in some cases, even your adversaries.
1. something that adds stimulation or enjoyment 2. the action of holding a finger towards the palm with the thumband suddenly releasing it outwards to produce a snapping sound 3. a quick blow or tap made by a finger snapped in this way — vb 4. ( tr ) to stimulate or excite 5. ( tr ) to strike or project sharply with a fillip 6. ( intr ) to make a fillip
[T]he Internet is about communicating. Communicating does not mean shouting content at people.
Realize the word 'social' is included in social media. The term 'social' means interaction of living organisms (humans in particular) with other living organisms.
Being social means engaging other people. Engagement requires listening first and then entering into a conversation. It's how we as people build relationships. Relationships drive client development in the legal industry.
...Being social for client development purposes means identifying your target audience, going to where they are congregating, listening to what they are saying, engaging in the conversation by referencing what others are saying, and offering information and insight of value to others.