Facebook, Disclosure, Leduc and Ontario Employment Law

Management lawyer Michael Fitzgibbon picks up on our March 4 discussion of the Leduc case, in which an Ontario personal injury Plaintiff was essentially ordered to make full disclosure to the defence of the contents of his private, friends-only Facebook pages.

Mr. Fitzgibbon contends the case has enormous implications for employment law litigation:

This is a very important case for those who practice in the area of employment law.

For example, an employee is terminated, sues and claims damages for wrongful dismissal.  Mitigation is always an issue in these cases.  If the former employee maintains a Facebook account or participates in other social-networking sits (MySpace or the increasingly popular Twitter) the contents of those sites may be highly relevant to that issue.  

There are enumerable examples but defence counsel should not overlook this important source of information on discovery and through the litigation and investigation, and plaintiff counsel will be well advised to consider this case when advising their client and preparing their Affidavit of Documents.

While Mr. Fitzgibbon may have taken a small leap of faith in his suggestion that Facebook postings are likely to be generally relevant on the specific issue of mitigation, his ultimate conclusion is sound.

Online postings at social media sites are now fair game for disclosure in Ontario civil litigation.

- Garry J. Wise, Toronto

Update - March 24, 2009:  Law.com also covers Leduc today - see: Electronic Discovery and Facebook

Visit our Toronto Law Firm website: www.wiselaw.net

EMPLOYMENT LAW • CIVIL LITIGATION • WILLS AND ESTATES • FAMILY LAW & DIVORCE

ORIGINALLY POSTED AT WISE LAW BLOG • SUBSCRIBE TO WISE LAW BLOG

India's Caste System Challenged in Appeal Court Ruling

For those of us who know very little about the state of social justice in India, this report from Telegraph UK will be most disconcerting:

Mushtaq Ahmed Mir, an unemployed man from Kupwara, decided to sue the Kashmiri newspaper Tameel-i-Irshad after it published a false report claiming he was a defendant in a murder case. He had asked the judge to waive the court fee in the case because he was too poor to pay it.

The judge threw out his case with a ruling that the poor did not have reputations which could be damaged in newspaper reports.

"When the plaintiff is not even in a position to pay the lawsuit fee, he cannot seek damages for defamation, " Judge Nazir Ahmed Fida said. "The dignity of a person of low integrity will not be lowered further in case his name appears in a defamatory piece of news."

...In his appeal ruling, High Court Judge Muzaffar Hussain Attar reprimanded the original trial judge and said his ruling had been "offensive to conscience." "The respect and reputation of a person is not dependent upon how much wealth he has accumulated," he said. If only the rich were entitled to respect "a great disservice will be done to society," he added.

...Leading social commentator Pavan K Varma said the ruling heralded "the beginning of change." "To say that someone who is poor can't have status reflects the mindset of another century, but old attitudes die hard. That the appeals judge threw out the ruling means there's a beginning of change. I'm not surprised that [the judgment] was overruled. That's the significance. Caste is now standing on its head," he said.

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

EMPLOYMENT LAW • CIVIL LITIGATION • WILLS AND ESTATES • FAMILY LAW & DIVORCE

ORIGINALLY POSTED AT WISE LAW BLOG • SUBSCRIBE TO WISE LAW BLOG

Internet Blacklists in Australia

The Sydney Morning Herald looks at web blacklists and threatened censorship by Australian cummunications regulators:

The Australian communications regulator says it will fine people who hyperlink to sites on its blacklist, which has been further expanded to include several pages on the anonymous whistleblower site Wikileaks.

Wikileaks was added to the blacklist for publishing a leaked document containing Denmark's list of banned websites.

The move by the Australian Communications and Media Authority comes after it threatened the host of online broadband discussion forum Whirlpool last week with a $11,000-a-day fine over a link published in its forum to another page blacklisted by ACMA - an anti-abortion website.

In a related story, The Guardian follows the money in its look at internet censorship:

Yet the global nature of the internet means that it perhaps makes less sense these days just to point the finger at isolated cases. It's not just a question any more of naming and shaming repressive regimes – western businesses are implicated too. I don't just mean Google and Yahoo for their activities in China, but the software and hardware companies that design the filtering software and infrastructure that makes censorship possible.

Saudi Arabia, for example, blocks undesirable websites with Californian software and the Chinese have Cisco to thank for their routers and switches. As the writer Xeni Jardin has observed, the US is now in the business of exporting censorship. For the first time in history, censorship has become a profitable enterprise, not just a matter of political control.

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

EMPLOYMENT LAW • CIVIL LITIGATION • WILLS AND ESTATES • FAMILY LAW & DIVORCE

ORIGINALLY POSTED AT WISE LAW BLOG • SUBSCRIBE TO WISE LAW BLOG

New B.C. Second-Hand Smoke Law Probits Smoking While Driving With Kids

Following in Ontario's recent footsteps, effective April 7, 2009, British Columbia will impose a $109.00 fine on drivers who smoke in their vehicles with children present.

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

EMPLOYMENT LAW • CIVIL LITIGATION • WILLS AND ESTATES • FAMILY LAW & DIVORCE

ORIGINALLY POSTED AT WISE LAW BLOG • SUBSCRIBE TO WISE LAW BLOG

The Great Toronto Street-Food Debate

While much of Toronto's media celebrates the imminent arrival of Biryani, Pad Thai and Bulgogi carts on the City's street corners, The Globe's Margaret Wente isn't so pleased.

Ms Wente takes on Toronto City Hall for politically-correct over-regulation of street food in Toronto:

Once upon a time, I used to think that the job of city government was to fix the potholes, police the streets, clear the snow and pick up the garbage. How wrong I was! Now I know that the most important job of city government is to enforce healthy eating habits among the populace, promote diversity and (perhaps contradictorily) harass hard-working immigrant micro-entrepreneurs until they wonder why they ever moved here.

...In New York, the customers are allowed to judge the street food for themselves. Naturally, that would never do in Toronto, a city run by control freaks who think street food should be about social justice and nutrition. Don't get me started on the bottled water. It's been banned from city premises because it's anti-environmental. From now on, thirsty citizens will just have to drink Coke.

See Ms. Wente's Please stop nannying us, Toronto.

She has a point.

While I'm all in favour of zealous regulation on food safety issues, I'm not so sure City Council should be in the business of  setting - or limiting - the menu selections for Toronto's street cuisine.

Variety is the spice of life.  

(And Tums are my friend.)

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

EMPLOYMENT LAW • CIVIL LITIGATION • WILLS AND ESTATES • FAMILY LAW & DIVORCE

ORIGINALLY POSTED AT WISE LAW BLOG • SUBSCRIBE TO WISE LAW BLOG

B.C. Court Decides Competing Survivor Pension Claims Between Widow, Ex-Spouse

Stan Rule has another excellent post at Rule of Law today.  He reports on MacMichael v. Strocel, a January 2009 ruling of the B.C. Supreme Court that decided between the competing entitlement claims of a widow and a deceased's former wife to payment of federal survivor benefits under the Public Service Superannuation Pension Plan.

The former spouse was entitled to the husband's monthly survivor benefit pursuant to a 1971 separation agreement.  He remarried in 1973.

Subsequently, the terms of federal employees' Superannuation Pension Plan changed - under the current pension plan, only the deceased's widow has an entitlement to the monthly $1,200.00 benefit.

The Court ruled in favour of the widow.  As Mr. Rule points out:

Fern MacMichael asked the court to declare that James MacMichael held the survivors’ benefits in trust for her. She argued that the separation agreement created a trust, or alternatively that allowing Marie MacMichael to keep the benefits would unjustly enrich her.

Madam Justice Stromberg-Stein ruled that the widow was entitled to keep the survivors’ benefits. The separation agreement did not contain wording that would create an express trust for the benefits.

The Court also rejected the argument that the widow was unjustly enriched.

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

EMPLOYMENT LAW • CIVIL LITIGATION • WILLS AND ESTATES • FAMILY LAW & DIVORCE

ORIGINALLY POSTED AT WISE LAW BLOG • SUBSCRIBE TO WISE LAW BLOG

Son Abducted to Brazil, U.S. Dad's Hague Convention Application Languishes

MSNBC reports today on an American father's frustrating ordeal.  

David Goldman's now-deceased wife abducted their son, Sean, to Brazil in June 2004 on the pretext of a two-week vacation. Upon arriving in Rio de Janeiro, she told Mr. Goldman their marital  relationship was over and unilaterally declared that she intended to maintain sole custody of their child.

Within 50 business days, Mr. Goldman filed an Application pursuant to the Hague Convention on International Child Abduction for the return of his son.

Prior to her death this year, the mother remarried.  Her new husband, a prominent and connected Brazilian lawyer, continues to thwart Mr. Goldman's efforts to return his son to the U.S.

The outcome - a judicially-sanctioned impasse that continues to separate father and son, and a high-profile controversy that has led to diplomatic intervention by U. S. Secretary of State Hillary Clinton:

In 2004, Goldman filed a petition under the Hague convention to have his son returned. Hague convention cases are supposed to be a "very expeditious process" and not last longer than six weeks, said James D. Garbolino, an assigned Superior Court judge in California who has written a book on such cases. 

Among the common defenses for not returning a child, Garbolino said, are that a child would suffer grave psychological harm by going back to his or her home country, or if the parent waits more than a year after the child's departure to file a petition. Goldman filed within 50 business days of his son's departure, according to his attorneys, but Bianchi's side argued that Sean would be emotionally damaged if he returned to the United States.

A federal judge in Rio in 2005 agreed that Sean had been moved to Brazil wrongfully but ruled that he should stay in Brazil because he had become "settled" in his new home, which is an exception described in the treaty.

These comments by one of the second husband's lawyers -  he has engaged a team of seventy lawyers on the case -  speak volumes:

"Sean is a naturalized Brazilian citizen. He has lived here for almost five years and has been raised with much love, affection and care by a serious family, receiving the best education possible," he wrote, adding, "It's not fair, nor humane, this slaughter that we are suffering involving the calculated capriciousness of an absent father."

See: Custody battle colors U.S., Brazil relationship

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

EMPLOYMENT LAW • CIVIL LITIGATION • WILLS AND ESTATES • FAMILY LAW & DIVORCE

ORIGINALLY POSTED AT WISE LAW BLOG • SUBSCRIBE TO WISE LAW BLOG

On Unemployment Insurance in America

Did you know that unemployment insurance premiums paid by individual employers in the U.S. are "based on the amount of the benefits their workers collect?"

The net result?

Washington Post writer Peter Whoriskey discusses a disturbing phenomenon:

More than a quarter of people applying for such claims have their rights to the benefit challenged as employers increasingly act to block payouts to former workers.

....Under state and federal laws, employees who are fired for misbehavior or quit voluntarily are ineligible for unemployment compensation. When jobless claims are blocked, employers save money because their unemployment insurance rates are based on the amount of the benefits their workers collect.

As unemployment rolls swell in the recession, many workers seem surprised to find their benefits challenged, their former bosses providing testimony against them. On one recent morning in what amounts to one of Maryland's unemployment courts, employees and employers squared off at conference tables to rehash reports of bad customer service, anger management and absenteeism.

The American unemployment insurance system thereby financially incentivizes bogus allegations by employers of employee misconduct and incompetence.

Now that's some safety net.

By contrast, Canada's employment insurance premiums, paid by both employers and employees, are solely based on each individual's insurable income earned. The rate formula is explained in the excerpt below from the Canada Employment Insurance Commission (CEIC):

GATINEAU, QUEBEC, November 14, 2008 - Acting under legislative authority introduced in 2005 that gives the Canada Employment Insurance (EI) Commission the authority to set the EI premium rate, the EI Commission today announced the 2009 premium rate.

As of January 1, 2009, the employee rate per $100 of insurable earnings will be $1.73, maintaining its current level. The corresponding employer rate is 1.4 times the employee rate.

The EI Commission sets the premium rate taking into account the principle that it should generate just enough revenue to cover payments expected to be made during the coming year. As prescribed in legislation, the rate is set based on economic forecasts provided by the Minister of Finance on or before September 30 of each year, the Chief Actuary's report and public input. As such, the proposed 2009 rate does not reflect recent changes arising from the deteriorating and rapidly evolving global economic situation and events after September 30, 2008. While the Government has the authority to substitute a new rate for that set by the Commission and is in a position to take into account more recent forecasts, the Commission notes that public input received from organizations representing employers and employees was unanimously of the view that the current rate should not be increased under current economic conditions.

Canadian employees who resign or are terminated for legitimate cause may be denied employment insurance benefits. Their employers' premiums, however, are in no way affected by E.I.'s eligibility determinations.

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

EMPLOYMENT LAW • CIVIL LITIGATION • WILLS AND ESTATES • FAMILY LAW & DIVORCE

ORIGINALLY POSTED AT WISE LAW BLOG • SUBSCRIBE TO WISE LAW BLOG

Another Ontario Parental Alienation Case

An 18 year-old Mississauga man has asked an Ontario Court Judge in Brampton to allow him to intervene in a Children's Aid proceeding that will determine the fate of his two younger brothers. 

The youth seeks custody of his brothers, aged 14 and 12, who now languish in foster care after refusing to participate in  a court-ordered parental alienation "deprogramming workshop." 

The Globe and Mail and the Toronto Star cover the case today.   

From the Star report:

The teen asked Justice Steven Clark to make him a party to the ongoing court case yesterday in a Brampton courtroom. He also asked Clark to forbid parental alienation experts from having anything more to do with his brothers.

"My brothers have ended up being committed in a hospital against their wishes, committed to live somewhere they do not want to live, exposed to psychiatrists who have attempted to carry out experimental therapy with them at the risk of severe harm to them, and if their lawyer will not do anything to stop this, I believe I have the right as their brother to be as concerned about them as each of my parents," he says in his affidavit.

The Globe's  Kirk Makin provides additional background:

The therapy, ordered in November by Ontario Superior Court Judge Francine VanMelle, was aimed at exorcising poisonous thoughts toward the mother that their controlling father had planted in the boys' minds.

Judge Van Melle granted the mother sole custody and authorized her to force her sons into a deprogramming clinic.

The court heard yesterday that, after the boys refused to go along with the deprogrammers, the mother had them returned to Toronto and committed to a psychiatric ward at St. Joseph's Health Centre.

A child psychiatrist at the hospital, Nagi Ghabbour, quickly became convinced that the prospect of forced therapy had turned the boys potentially suicidal. Dr. Ghabbour said in a letter that the boys felt "trapped in the legal system," and were filled with a sense of helplessness.

Dr. Ghabbour urged an immediate end to any further psychiatric assessments or forced therapy, and called on the Catholic Children's Aid Society to seize the children to forestall any further attempts by the mother to deprogram them.

Yesterday's hearing was to decide whether the eldest brother can intervene in CCAS proceedings to place his brothers in long-term foster care.

The so-called "deprogramming" therapies, aimed at combatting parental alienation, have been the source of much news of late.  

In January, a controversial decision by an Ontario Superior Court Justice required that three girls be removed from their mother's custody and sent for therapeutic treatment at the same Family Workshop for Alienated Children program created by Dr. Randy Rand, that is now challenged as harmful in the current proceedings.

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

EMPLOYMENT LAW • CIVIL LITIGATION • WILLS AND ESTATES • FAMILY LAW & DIVORCE

ORIGINALLY POSTED AT WISE LAW BLOG • SUBSCRIBE TO WISE LAW BLOG

NYT on John C. Yoo

The New York Times considers the future of John C. Yoo, the controversial Bush administration lawyer whose "legal opinions" enabled the former president's radical torture policies:

The notoriety that follows Mr. Yoo — and to varying degrees half a dozen other Bush administration lawyers — raises difficult questions: What is a government lawyer’s responsibility if legal advice he gives turns out to be, in the view of many authorities, grievously flawed? Can he be blamed for damaging, and arguably illegal, acts carried out with his imprimatur? Should he suffer any punishment?

“I think the legal profession in the United States has been seriously hurt by their conduct,” said Stephen Gillers, a professor of legal ethics at New York University. He called the disputed legal opinions “sloppy, one-sided and incompetent” and added, “There has to be accountability.”

What, if anything, should happen to these lawyers — damage to their professional reputations, punishment by state bar associations, perhaps even prosecution at home or abroad — is now the subject of a lively debate in the legal world and beyond.

...Even if they escape punishment at home, however, the lawyers could find themselves pursued in European countries that have laws allowing them to prosecute torture no matter where it occurred.

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

EMPLOYMENT LAW • CIVIL LITIGATION • WILLS AND ESTATES • FAMILY LAW & DIVORCE

ORIGINALLY POSTED AT WISE LAW BLOG • SUBSCRIBE TO WISE LAW BLOG

B.C. Government Moves to Reduce Restaurant Trans Fats

From CBC News:

B.C. will become the first province in Canada to restrict trans fat in foods prepared and served at restaurants, Mary Polak, the minister of Healthy Living and Sport, announced Saturday.

The province is hoping to squeeze out the majority of trans fat from restaurants, delis, bakeries, cafeterias, schools and health-care institutions by this fall.

... All food service establishments that need a permit to operate in B.C. will be required to comply with the new regulation by Sept. 30, 2009.

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

EMPLOYMENT LAW • CIVIL LITIGATION • WILLS AND ESTATES • FAMILY LAW & DIVORCE

ORIGINALLY POSTED AT WISE LAW BLOG • SUBSCRIBE TO WISE LAW BLOG

WWE Wrestlers Lose Employee-Status Claims

Law.com reports on the dismissal of a lawsuit by several well-known professional wrestlers against the WWE (World Wrestling Entertainment).  The wrestlers had alleged that they were deprived of employee benefits by being improperly classified as independent contractors, as opposed to employees.

In dismissing the claims, the court upheld written agreements signed by the wrestlers in which they acknowledged they were independent contractors:

Former WWE performers Scott "Raven" Levy, Christopher "Kanyon" Kluscartis and "Above Average" Michael Sanders claimed they should have been treated as employees because the Stamford, Conn.-based WWE controls their salaries, performance locations, costumes, training regimen and the storylines they follow. Further, the lawsuit alleged, the WWE improperly withheld Social Security and Medicare taxes from the federal government because of the wrestlers' independent contractor status.

The wrestlers' attorney, David Golub of Silver, Golub & Teitell in Stamford, also claimed that the wrestlers' were denied employee benefits such as health care, paid sick time and vacation.

Golub was seeking class-action status, but late last week Senior U.S. District Judge Peter Dorsey granted WWE's motion to dismiss in federal court in New Haven. He said the wrestlers signed a contract that acknowledged their status as independent contractors.

The issue of workers' classification has been a hot topic since the late 1990s when Microsoft was found to have misclassified some workers as independent contractors and temporary employees. Employers sometimes take such steps to cut benefit and liability insurance costs.

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

EMPLOYMENT LAW • CIVIL LITIGATION • WILLS AND ESTATES • FAMILY LAW & DIVORCE

ORIGINALLY POSTED AT WISE LAW BLOG • SUBSCRIBE TO WISE LAW BLOG

Professional Offices and Online Document Platforms

While the technological winds continue to guide us in the direction of online data creation and storage platforms, two articles today illustrate why we must remain extremely wary about their current utility for professional offices.  

WebProNews reports on a security breach at Google Docs that allowed unauthorized access to users'  documents stored online:

On Friday Google contacted some Google Docs users to alert them of a privacy issue. Less than 0.05% of user docs were accidentally shared with people with whom they were not supposed to be.  

Google then followed up with a blog post about the issue in the "interest of transparency." Google Docs Product Manager Jennifer Mazzon explains the issue:

Computerworld highlights a Facebook breakdown that illustrates the continuing perils of hard drive failure in cyberspace:

Popular social networking site Facebook.com admitted on a blog post today that over the weekend, a hard drive failure led to the temporary loss of 10% to 15% of its users stored photographs.

...Facebook said its users' photos are safe because it stores multiple copies of the data for disaster recovery and business continuity purposes, and it is working to make the photos affected by the system failure available again as soon as possible.

Bottom line"

These technologies are tempting indeed.  Two recent failures by the world's leading online software developers, however, make it plain that vulnerabilities remain that pose intolerable risk to sensitive data.

The future of these technologies may well be inevitable, but the platforms are just not there yet for serious professional application. 

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

EMPLOYMENT LAW • CIVIL LITIGATION • WILLS AND ESTATES • FAMILY LAW & DIVORCE

ORIGINALLY POSTED AT WISE LAW BLOG • SUBSCRIBE TO WISE LAW BLOG

The Example of Canadian Health Care

Wiith health care reform a key priority of the Obama administration, Canada's universal health care system has its admirers south of the border.  

Writer Tom Leavitt, for example, takes a look at a paperless Canadian medical office, and likes what he sees.  

From Canadian Healthcare: It's All About The Patient:

Notice what is, and is not talked about, in the article: not one word here about automating health insurance claims, reimbursement paperwork, tracking approvals from insurance companies and appeals of denied claims, optomizing the reimbursement "coding" process, or automating the bill collections process. Instead, it is all about being able to more efficiently serve the patient's medical needs, and automating the paperwork associated with keeping a patient's medical records up to date and usable.

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

EMPLOYMENT LAW • CIVIL LITIGATION • WILLS AND ESTATES • FAMILY LAW & DIVORCE

ORIGINALLY POSTED AT WISE LAW BLOG • SUBSCRIBE TO WISE LAW BLOG

American Dictatorship?

As usual, Glenn Greenwald delivers with his seminal crtitique on the constitutional implications of nine, newly-released and highly-controversial legal opinions prepared by the U.S. Office of Legal Counsel during the Bush presidency.

The memoranda were relied upon by the Bush administration in prosecution of its so-called "War on Terror."

Mr. Greenwald:

Let's just look at one of those documents (.pdf) -- entitled "Authority for Use of Military Force to Combat Terrorist Activities Within the U.S." It was sent to (and requested by) Defense Department General Counsel William J. Haynes and authored by Assistant Attorney General John Yoo and DOJ Special Counsel Robert Delahunty. But it's not a "Yoo memo." Rather, it was the official and formal position of the U.S. Government -- at least of the omnipotent Executive Branch -- from the time it was issued until just several months George Bush before left office (October, 2008), when OLC Chief Stephen Bradbury abruptly issued a memo withdrawing, denouncing and repudiating both its reasoning and conclusions.

The essence of this document was to declare that George Bush had the authority (a) to deploy the U.S. military inside the U.S., (b) directed at foreign nationals and U.S. citizens alike; (c) unconstrained by any Constitutional limits, including those of the First, Fourth and Fifth Amendments. It was nothing less than an explicit decree that, when it comes to Presidential power, the Bill of Rights was suspended, even on U.S. soil and as applied to U.S. citizens. And it wasn't only a decree that existed in theory; this secret proclamation that the Fourth Amendment was inapplicable to what the document calls "domestic military operations" was, among other things, the basis on which Bush ordered the NSA, an arm of the U.S. military, to turn inwards and begin spying -- in secret and with no oversight -- on the electronic communications (telephone calls and emails) of U.S. citizens on U.S. soil.

...More amazingly still, there is almost certainly a whole slew of other activities that remain concealed, and very well may remain undisclosed for years, as a result of the creepy Orwellian slogans embraced in unison by our political class -- look towards the future, not the past!; only "liberal score-settlers" want an investigation of any of this. That mentality is being aided by a new administration that seems bizarrely desperate to keep concealed the secrets of the old one. As but one example, we know that the Bush administration was engaged in certain surveillance activities aimed at U.S. citizens that were so patently illegal and wrong that even the right-wing fanatics in Bush's own Justice Department (such as John Aschroft) threatened to resign immediately if they didn't cease, yet we still, to this day, don't know what those domestic surveillance activities were.

The most vital point is that all of the documents released yesterday by the Obama DOJ comprise nothing less than a regime of secret laws under which we were governed. Nothing was redacted when those documents yesterday were released because they don't contain any national security secrets. They're nothing more than legal decrees, written by lawyers. They're just laws that were implemented with no acts of Congress, unilaterally by the Executive branch. Yet even the very laws that governed us were kept secret for eight years.

This is factually true, with no hyperbole: Over the last eight years, we had a system in place where we pretended that our "laws" were the things enacted out in the open by our Congress and that were set forth by the Constitution. The reality, though, was that our Government secretly vested itself with the power to ignore those public laws, to declare them invalid, and instead, create a whole regimen of secret laws that vested tyrannical, monarchical power in the President. Nobody knew what those secret laws were because even Congress, despite a few lame and meek requests, was denied access to them. What kind of country lives under secret laws?

See Mr. Greenwald's article, The newly released secret laws of the Bush administration

More reading:

• Justice Department to Reveal More Bush Administration Legal Memos - Washington Post
• 2001 Bush legal memo allowed ‘First Amendment speech and press rights’ to be ’subordinated.’ - Think Progress
• Criminals In The Bush White House, Ctd. - Andrew Sullivan
• Obama cuts through Bush secrecy - CNN
• What John Yoo's OLC Memos on the Terrorist Surveillance Program Probably Said - Volokh Conspiracy
• Release of Memos Fuels Push for Inquiry Into Bush’s Terror-Fighting Policies - N.Y. Times

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

EMPLOYMENT LAW • CIVIL LITIGATION • WILLS AND ESTATES • FAMILY LAW & DIVORCE

ORIGINALLY POSTED AT WISE LAW BLOG • SUBSCRIBE TO WISE LAW BLOG

New York Court Refuses Parents' Claim to Dead Son's Sperm

Parents Denied Right to Dead Son's Sperm, from Law.com:

More than a decade after a fatally ill man deposited his sperm at a tissue bank, a New York appeals court has rebuffed the plea of his parents to use the sperm for conception of a grandchild, clearing the way for the destruction of the sample.

The panel held that Mark Speranza's parents' proposal to use their dead son's semen to artificially impregnate a surrogate would "fundamentally violate" state health regulations, which require sperm donors to be screened before their specimens are donated to the public.

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

EMPLOYMENT LAW • CIVIL LITIGATION • WILLS AND ESTATES • FAMILY LAW & DIVORCE

ORIGINALLY POSTED AT WISE LAW BLOG • SUBSCRIBE TO WISE LAW BLOG

Ontario Court Requires Disclosure of Facebook Content

Cavanaugh Williams covers Leduc v. Roman, an important February 20, 2009 Ontario appellate decision that considers the requirment of disclosure of Facebook content by a Plaintiff in a personal injury claim:

...counsel for the defence brought a motion before Master Dash, asking for (i) the interim preservation of all information contained on [the plaintiff's] Facebook profile, (ii) production of all information on the Facebook profile, and, (iii) the production of a sworn supplementary affidavit of documents.

On a preliminary ruling, the Master did order that the plaintiff copy and preserve every page from his Facebook profile until the hearing of the main motion. The plaintiff agreed to produce a supplementary affidavit of documents.

The Master refused to order the plaintiff to produce the pages from his Facebook profile that were not publicly accessible. He characterized the motion as a “fishing expedition” and focused on the fact that the defendant was unable to adduce any evidence as to what might be found on the site.

However, the Master did find that photographs or other information posted on the site, that showed the plaintiff’s activities or his “other enjoyment of life”, should be listed in the supplementary affidavit of documents that he had agreed to deliver. The Master was quite satisfied that the pages on the site constituted “documents” and that they lay within the plaintiff’s control.

....[ On appeal] Justice Brown came to a different conclusion. He thought that Facebook, by its very nature, is a vehicle by which people make available to others information about themselves, “what they like, what they do, and where they go, in varying degrees of detail”. He did not think that the defence had been on a “fishing expedition”, saying, “[i]t is reasonable to infer that his social networking site likely contains some content relevant to the issue of how Mr. Leduc [the plaintiff] has been able to lead his life since the accident.”

In the result, Justice Brown granted leave to the defendant to cross-examine the plaintiff on his supplementary affidavit of documents, about the nature of the content that the plaintiff had posted on his Facebook site.

The case is interesting in a couple of respects. Most obviously, it deals with the relatively recent phenomenon of how social networking websites are to be treated for purposes of discovery.

But more fundamentally, both Master Dash and Justice Brown seem to have taken it as a given that photographs of the plaintiff in a personal injury action are documents within the plaintiff’s control and that any such photographs that are demonstrative of the plaintiff’s lifestyle (assuming that that is an issue in the litigation) should be disclosed in the affidavit of documents. That would be true whether the photographs are printed or electronic and whether they are posted on the internet or exist only on a personal hard drive.

The entire article is well worth reading - see: Plaintiff’s Facebook Pages Not A “Fishing Expedition” by Defence, Judge Rules

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

EMPLOYMENT LAW • CIVIL LITIGATION • WILLS AND ESTATES • FAMILY LAW & DIVORCE

ORIGINALLY POSTED AT WISE LAW BLOG • SUBSCRIBE TO WISE LAW BLOG

Pants Suit Judge Loses $54 Million Appeal

More on former Judge Roy Pearson's $54 million pants suit appeal here at Law.com:

The District's Court of Appeals has denied a request for a second appeals hearing for a former U.S. judge who sued a dry cleaner for $54 million over a lost pair of pants.

Roy Pearson Jr.'s request for a second hearing before the entire nine-judge panel was rejected Monday.

In December, three judges on the court unanimously rejected Pearson's initial appeal, saying he failed to show the store's promise of "satisfaction guaranteed" amounted to fraud.

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

EMPLOYMENT LAW • CIVIL LITIGATION • WILLS AND ESTATES • FAMILY LAW & DIVORCE

ORIGINALLY POSTED AT WISE LAW BLOG • SUBSCRIBE TO WISE LAW BLOG

Sorry, Rush

Very amusing do-it-yourself, drop-down apologies: I'm Sorry Rush

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

EMPLOYMENT LAW • CIVIL LITIGATION • WILLS AND ESTATES • FAMILY LAW & DIVORCE

ORIGINALLY POSTED AT WISE LAW BLOG • SUBSCRIBE TO WISE LAW BLOG

Globe and Mail: Professionalism and Legal Ethics

Kirk Makin canvasses the future of legal ethics in Ontario in a thoughtful article in today's Globe:

The first task for proponents of the professionalism movement has been defining what they mean. By consensus, it appears to boil down to civility; mentoring; continuing education; maintaining client confidentiality; avoidance of conflicts; and maintaining independence.

"It has to do with the notion that being a lawyer does not mean simply holding a job," said Ontario Court of Appeal Judge Stephen Goudge, a moving force in the campaign. "This is about being part of a profession that is given a stature and a certain prestige and, in return, includes a significant service component."

...The key question for the professionalism movement lies in whether counsel - not only academics and law society benchers - also buy into it. The answer is likely to hinge on whether the movement maintains a sense of realism about life in the legal trenches.

See the full article: It's about so much more than billable hours

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

EMPLOYMENT LAW • CIVIL LITIGATION • WILLS AND ESTATES • FAMILY LAW & DIVORCE

ORIGINALLY POSTED AT WISE LAW BLOG • SUBSCRIBE TO WISE LAW BLOG

Law and Technology

From the wonderful Courtoons:

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

EMPLOYMENT LAW • CIVIL LITIGATION • WILLS AND ESTATES • FAMILY LAW & DIVORCE

ORIGINALLY POSTED AT WISE LAW BLOG • SUBSCRIBE TO WISE LAW BLOG

Psychologist: Don't Marry A Lawyer

Via Robert Ambrogi at Legal Blog Watch, a Columbus, Ohio psychologist apparently doesn't see much of Cupid at the counsel table - or the dinner table:

Marry a Lawyer? Are You Crazy?

Valentine's Day has come and gone, but the question psychologist Fiona Travis raises is a perpetual one: Would someone have to be crazy to marry a lawyer? "It's not that lawyers lack relationship-building skills," she writes in a post at the blog Lawyer Avenue.

"But, overworked, overburdened and squeezed by time -- and now, the worst downturn in two decades -- lawyers do exhibit communication and intimacy breakdowns peculiar to their education, their professional training and work environment."

See the original article: Marry a Lawyer? Proceed With Caution

Dr. Fiona Travis is, of course, married to a lawyer.

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

EMPLOYMENT LAW • CIVIL LITIGATION • WILLS AND ESTATES • FAMILY LAW & DIVORCE

ORIGINALLY POSTED AT WISE LAW BLOG • SUBSCRIBE TO WISE LAW BLOG

Getting the City to Pay for Pothole Damage To Your Vehicle...

Our old friend Pseudo tackles Toronto's pressing pothole problems today.  See his article, How To Get Compensated If Your Car Is Damaged By A Pothole in Toronto

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

EMPLOYMENT LAW • CIVIL LITIGATION • WILLS AND ESTATES • FAMILY LAW & DIVORCE

ORIGINALLY POSTED AT WISE LAW BLOG • SUBSCRIBE TO WISE LAW BLOG

Ontario Smoking Law Encounters "Glitch"

Via the Toronto Star, a 20 year-old Port Hope man has been nabbed under Ontario's new smoking laws.

His offence?

Smoking in his vehicle in the presence of a 15 year-old smoker:

A curious situation arose Saturday, when 20-year-old Port Hope resident Tory Ashton was given a $155 ticket for smoking in his vehicle with a person under the age of 16 present.

As the police officer was writing the ticket, the 15-year-old passenger – the reason the car was stopped – hopped out of the car and lit her own cigarette. Legally.

And the officer could do nothing about it.

....Saturday's incident was one of the first cases of a driver fined under the law, which took effect Jan. 21, designed to protect young people from highly concentrated levels of second-hand smoke.

Ashton said he was frustrated he was given the ticket.

"She's 15, she smokes also and ... they're giving me the fine," he told CTV.

Adding to the discussion (with an exercise in happy hyperbole), CTV news reports that local police apparently worry that public unrest may be just around the corner:

PORT HOPE, Ont. -- It's only a matter of time before someone "snaps" after being pulled over under Ontario's new law forbidding smoking in a vehicle carrying a minor, a police officer said Monday in response to a quirk in the legislation that was made evident during a weekend incident.

"People got mad enough when they couldn't smoke in bars anymore or bingo parlours," said Sgt. Bryant Wood, a police officer in the eastern Ontario town of Port Hope."Now you're telling them they can't smoke in cars. At some point somebody's going to snap along the way here."

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

EMPLOYMENT LAW • CIVIL LITIGATION • WILLS AND ESTATES • FAMILY LAW & DIVORCE

ORIGINALLY POSTED AT WISE LAW BLOG • SUBSCRIBE TO WISE LAW BLOG

Supreme Court of Canada Hearings: Now Online in a Web-Browser Near You

Via Slaw, videocasts of Supreme Court of Canada hearings will be available online, effective today.  

From the Court's Policy for Access to Supreme Court of Canada Records: 

In addition to the records already listed in this policy, members of the public shall have remote access to those court records, or portions thereof, listed in this subsection:

* the electronic version of any factum on an appeal filed on or after February 9, 2009, subject to the following conditions. An electronic version of the factum must be available. The factum must not be subject to any limitation on access by court order or law, or as set out in paragraph 3.4 of this policy. Where a factum is redacted as set out in paragraph 5.2 of this policy, only the redacted electronic version will be available for remote access.
* webcasts of appeal hearings on or after February 9, 2009, provided that the digital recording of the appeal hearing is available and is not subject to any limitation on access by court order or law or as set out in paragraph 3.4 of this policy.

Also see the Supreme Court of Canada's website for its lineup of scheduled webcasts.

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

EMPLOYMENT LAW • CIVIL LITIGATION • WILLS AND ESTATES • FAMILY LAW & DIVORCE

ORIGINALLY POSTED AT WISE LAW BLOG • SUBSCRIBE TO WISE LAW BLOG