Canadian Forum on Court Technology

The Canadian Centre for Court Technology, a high-powered national think tank comprised of judges and leading justice sector participants, will be convening an impressive conference on court technology in Ottawa later this month.

As noted at the CCCT website, the conference agenda provides a nice window as to where our nation's justice system is heading, technologically speaking:

The CCCT-CCTJ is delighted to announce a unique national event: the Canadian Forum on Court Technology (CFCT-FCTJ). It will take place in Ottawa on September 22 and 23, 2010. All details are available on the CFCT-FCTJ website.

The Forum will feature the following keynote speakers:

• The Honourable Madam Justice Louise Charron, Supreme Court of Canada;
• The Deputy Minister to the Premier of British Columbia, Allan Seckel;
• The author of “The end of Lawyers”, Richard Susskind.

Here is a sample of the 22 sessions which will be offered. For more details, look at the program.

• Judging in 2020: In a Courtroom or on the Web?
• An Introduction to E-Discovery and its Impact on Trials
• The Use of Court Statistics
• A Virtual Day in Court: Online Dispute Resolution
• Whose Information is it Anyway?

Thanks to Mike F. for pointing us to this event.

- Garry J. Wise, Toronto

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Ontario Chief Justice Seeks Mandatory Mediation in Family Law Proceedings

Via Toronto Star:

Ontario Chief Justice Warren Winkler is calling for “dramatic” changes to the justice system that would deny family law litigants access to the courts unless they go through mediation first.

In a speech Tuesday to mark the opening of the province’s courts for 2010-11, Winkler said mediation offers a potentially faster and cheaper way to resolve divorce and custody battles, including a less-complicated process for getting information such as a spouse’s financial statements.

“Accordingly, only in the event that the alternative dispute resolution process is unsuccessful would access to the costly, time-consuming, adversarial and sometimes acrimonious court process be available to litigants,” he said

Amen.

- Garry J. Wise, Toronto

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Superheroes in Court! (at Yale)

NY Times features a Yale University "rare books" exhibit that canvasses the portrayal of lawyers and courts in comic books:

The case of “The People vs. Superman” is not found in the hornbooks that are scoured by the nation’s law students. But if they had been youngsters in 1967, when Action Comics No. 359 first came out, they might have been amazed to see the Man of Steel in an unusual situation. Instead of zooming through the sky or confronting talkative archvillains, he is in a courtroom, sitting in the witness chair...

The show, “Superheroes in Court! Lawyers, Law and Comic Books,” provides images of superheroes in the dock, comic books about lawyers and examples of legal disputes and Congressional inquiries involving caped crusaders.

For more on the exhibit, see the Yale Law Library Rare Books Blog.

- Garry J. Wise, Toronto

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Introducing the Wise Law Blog Team

As noted last weekend, we are pleased to welcome our 2010-2011 students-at-law, Robert Tanha and Christopher Bird, to Wise Law Office. They'll be joining our firm's intrepid legal assistant, Rachel Spence, as regular contributors to Wise Law Blog.

I'd like to take this opportunity to briefly introduce all three to you.

Christopher Bird graduated from Osgoode Hall Law School after completing undergraduate studies at Carleton University and the Toronto Film School. While at Osgoode, he worked for the Innocence Project and was Managing Editor of The Court, Osgoode's jurisprudence blog. Christopher worked as a freelance writer, videographer and video editor prior to attending law school. His interests include politics, public policy, Charter rights, comic books, and board games.

Robert Tanha graduated from the University of Ottawa's Faculty of Law after completing a Master of Arts in Political Science at the University of Windsor and bachelor degrees in Political Science and Education from York University and the University of Windsor. During law school, Robert taught property law at Algonquin College in Ottawa, and contributed to Inter Pares on the political and legal issues of the day. Robert was licensed as an Ontario certified teacher in 2006. In his spare time, Robert enjoys playing billiards and reading Canadian and American political history.

Rachel Spence joined Wise Law Office as a Legal Assistant in 2008, after completing the Court & Tribunal Agent Diploma programme at Durham College in Oshawa. Rachel is an avid writer and Vegan food enthusiast, whose interests include photography and natural health.

I trust our readers will be enjoying the contributions of the new Wise Law Blog team in the months ahead.

Welcome again, to Robert and Chris.

- Garry J. Wise, Toronto

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140Law - Legal Headlines for September 13, 2010

With summer officially behind us, it's back to work we go.

To kickstart your week, here are some of our leading legal headlines from Wise Law on Twitter:

• Federal judge's impeachment trial gets under way in Senate http://is.gd/f8Iv9
• Family law scam gets more sophisticated - Law Times http://is.gd/f8GXh
• CBC reconsiders online anonymity http://is.gd/f5823
• Gay blood ruling sets 'dangerous' precedent: lawyer http://is.gd/f57C9
• N.J. Court OKs Googling Jurors During Voir Dire http://is.gd/f57mi
• Linda McMahon's Dead Wrestler Problem? http://is.gd/f3WVw
• Overtime class actions: an endless maze of rulings and appeals - Law Times http://is.gd/f3Wwt
• Federal Appeals Court Stays District Judge’s Ban on Stem Cell Research http://is.gd/f3VJG
• Manitoba Law Society told of King's conduct in 2003 http://is.gd/f3VAn
• Alberta Human Rights Tribunal Awards Employee $650,000 http://is.gd/f3VeC

Enjoy your Monday.

And of course, for breaking legal headlines, as they break, follow us on Twitter.

- Garry J. Wise, Toronto

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Death Row Chaplain: Death Penalty is Futile

For a fascinating read, see Obit Magazine's What Good Has Death Done?, a profile of Rev. Carroll “Bud” Pickett, who served as prison chaplain at the Texas state penitentiary at Huntsville for 15 years:

Many of the convicts Rev. Carroll “Bud” Pickett escorted to Texas’ death chamber during his 15 years as the Huntsville’s penitentiary’s prison chaplain wanted him to hold their hands.

But he couldn’t, because their hands would be strapped to the lethal injection table. Instead, he usually stood by the man’s right knee, placing one warm hand on his right ankle. Pickett would watch the lethal combination of drugs drip down the tube into the man’s arm and feel the pulse under his fingers go from fast and frantic and fear-filled to a slow throb. Then there was nothing at all.

... Pickett watched almost 100 men die this way, deaths completed in a matter of minutes, but ones that have stayed with Pickett for years. His experiences changed his views on capital punishment, making him an outspoken critic of the practice he says can punish the innocent, the mentally handicapped and the reformed for no good reason.

(h/t: Walter Olson of Overlawyered, via Twitter)

- Garry J. Wise, Toronto

Update: September 13, 2010

Another dispatch from death row, via Washington Post: Convicted killer pleads for her life as execution date in Virginia nears

- GJW

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Wind Turbines and The Green Energy Pushback

CTV News reports on protests yesterday by Lindsay, Ontario residents who confronted Premier Dalton McGuinty on the alleged health concerns arising from local wind turbines:

"Have you heard about the children who are getting nosebleeds from these (turbines)?" asked Pontypool resident Mary Cowling.

"Just one child -- one child -- is one too many to suffer the effects of a wind turbine. One little child. And if it was your child, and your grandchild, you would feel the same way as we do and you would fight like we are."

Provincial regulations on wind turbines are among the toughest in the world, McGuinty argued, adding that there's no scientific evidence to suggest that turbines cause health problems.

The province has to move to clean energy sources in order to reduce Ontario's dependence on polluting, coal-fired generation, he said.

The Potential Health Impact of Wind Turbines, a study published in May 2010 by the Ontario Chief Medical Officer of Health, concludes that wind turbines do not pose any significant medical threat to nearby residents:

The review concludes that while some people living near wind turbines report symptoms such as dizziness, headaches, and sleep disturbance, the scientific evidence available to date does not demonstrate a direct causal link between wind turbine noise and adverse health effects. The sound level from wind turbines at common residential setbacks is not sufficient to cause hearing impairment or other direct health effects, although some people may find it annoying.

More on this via Wikipedia: Environmental effects of wind power

A European Commission report has found wind to have the lowest external costs, comprising human health impacts, building and crop damage, global warming, loss of amenities and ecological impact, when compared to coal, oil, gas, biomass, nuclear, hydro and photovoltaic.

Wind energy appears to hold the greatest promise of all clean energy alternatives. While I suppose it is predictable that turbine projects will attract frequent "not-in-my-backyard" styled opposition, the European Commission's comparison of damage costs per kWh for coal, gas, nuclear and wind electricity appears rather difficult to ignore:

For wind energy (one of the more promising renewable technologies to be implemented in some European countries) it should be emphasized that impacts from upstream processes and amenity impacts become important, since no pollutants are emitted during electricity production by wind turbines. These impacts and costs are calculated using emission databases for steel and concrete production - materials used to build a wind turbine and tower. Impacts from noise are quite low. Impacts from visual intrusion are difficult to value. Both impacts can be minimised through planning and consultation. Impacts on birds and animals are negligible when quantified. Human accidents during construction, or due to collisions on sea, are also very small, but can become relatively important when emissions from the production of materials decrease further.

- Garry J. Wise, Toronto

Update: September 17, 2010

Thanks to our readers for the very lively discussion in this post's comments thread.

Note this cautionary report on an ongoing Saskatchewan wind farm lawsuit. Scientifically unjustafiable legal opposition to wind farms could prove to be quite costsly to objecting landowners.

Also see: Wind Farm may seek $450,000 costs from landowner over ex parte injunction

- GJW

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Shana Tova - Happy New Year 5771

After a short break from blogging, I'm happy to observe both that the sky did not fall and that we are once again back at Wise Law Blog.

I'd like to extend a shana tova to our clients, readers and colleagues who are celebrating the Jewish New Year this week. May 5771 be a healthy, happy and fruitful one for all.

As we ramp up for a busy fall, we'll be featuring new contributions to this blog from Robert Tanha and Christopher Bird, both of whom we welcomed this week to Wise Law Office as students-at-law. Christopher will be best-known to the Canadian blawger community for his recent stint as Managing Editor at The Court.

We'll also feature continuing posts from Rachel Spence, a legal assistant with our office, and occasional guest posts from an assortment of national and local legal voices.

And of course, we invite you to follow us at Twitter, where we will continue to post all of the breaking legal headlines of the day.

Once again, Happy New Year from all of us at Wise Law Office.

- Garry J. Wise, Toronto

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California Same-Sex Marriage Stay To Be Lifted August 18

Reports from around the web:

ABA Journal:

The federal judge who ruled California's same-sex marriage ban unconstitutional has declined to permanently stay his ruling. But he did allow a temporary hold on his order, giving Prop 8 supporters time to appeal the ruling.Supporters have until Aug. 18 to appeal to the 9th U.S. Circuit Court of Appeals. But only those who have standing, those impacted by U.S. District Judge Vaughn Walker's order, will be able to appeal, the Los Angeles Times reports.

Read the 11-page final stay order (PDF).

The campaign for Proposition 8 plans to file an immediate appeal.

Via Law.com:

Chief Judge Vaughn Walker today denied a motion to stay his decision overturning California's ban on same-sex marriage. But Walker stayed entry of judgment until Aug. 18 at 5 p.m., giving proponents a window in which to appeal his ruling on the stay to the 9th U.S. Circuit Court of Appeals. The decision on the stay came out after a morning of online reports describing a growing line of hopeful couples congregating at San Francisco City Hall.

From Point of Law:

Judge Walker refused to grant a stay of his ruling in Perry v. Schwarzenegger. At the moment, the California governor and attorney general are refusing to defend Prop 8, and Judge Walker held that the intervenors, the organizations that supported Prop 8, might not have standing to appeal his ruling.

Also on the appellate standing issue, Andrew Sullivan:

This seems to me the news in Judge Walker's decision to extend a stay on his ruling in favor of marriage rights for gay couples until August 18. I'm not a legal expert but this is from the NCLR's release:

Even though Judge Walker did not immediately let same-sex couples in California marry, the ruling provides important insight into the merits of the issues that the Ninth Circuit will consider on appeal. For example, in his ruling today, Judge Walker casts serious doubt on whether the proponents of Prop 8 even have "standing" to pursue an appeal because they do not speak for the state of California, and the official representatives of the state agree that Prop 8 is unconstitutional. Standing refers to whether a particular person has a legal right to bring an appeal. In his ruling today, Judge Walker said: “As it appears at least doubtful that proponents will be able to proceed with their appeal without a state defendant, it remains unclear whether the court of appeals will be able to reach the merits of proponents’ appeal. In light of those concerns, proponents may have little choice but to attempt to convince either the governor or the attorney general to file an appeal to ensure jurisdiction."

But the governor and attorney general favor marriage equality. So it will be up to Anthony Kennedy, if the appeal court denies standing to the Prop 8 proponents. But maybe not. A reader notes:

Appellate courts generally try to resolve cases on the narrowest grounds possible. Since the question of whether the intervenors have standing to pursue the appeal is a procedural/jurisdictional issue, and not the merits of the case, an appellate court should look to that question first to see if the case can be resolved without addressing the merits. If the court decides that the intervenors don't have standing to appeal, the court could resolve the case in favor of the plaintiffs without granting much room for the Supreme Court to take the case and reverse it.

- Garry J. Wise, Toronto

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B.C. Court: Loss of "Promising" Law Career Assessed at $5.1 Million

In a decision released August 9, 2010, a Britsh Columbia Supreme Court Judge has assessed the value of a young lawyer's loss of income capacity, after injuries arising from an unfortunate dance hall accident essentially ended her budding legal career.

In assessing these economic damages at $5.1 million, The Honourable Mr. Justice Kelleher noted the Plaintiff's potential value as a "rainmaker" to prospective, large-firm employers:

[325] Mr. Mallett also noted that the plaintiff was very effective at bringing new clients into the firm. She brought in work that was above her level of expertise, which is unexpected for a junior lawyer.

[326] Mr. Pakrul stated that the plaintiff had “above average ability, perhaps extraordinary ability to successfully market in cold-call situations where she didn’t know anybody and in situations where she was simply working with existing contacts or clients.”

[327] Peter Snell was also a lawyer at Alexander Holburn, becoming a partner in 2003. He agreed that the plaintiff had very good business development skills.

[328] I accept that the plaintiff had the skill to become a successful rainmaker, and would likely bring a substantial volume of business to whatever firm she worked for. However, as counsel for Lombard points out, it is important to keep in mind that the plaintiff was only a junior associate with limited experience at the time she left Alexander Holburn. Accordingly, some caution must be exercised in basing a pattern of future success or “rainmaking” on this relatively short period of employment.

[329] The four considerations listed in Brown v. Golaiy are all present here: Ms. Danicek has been rendered less capable overall from earning income from all types of employment; the plaintiff is less marketable or attractive; she has lost the opportunity of taking advantage of all job opportunities which might otherwise have been available to her; and is less valuable to herself as a person capable of earning income.

[330] It is highly likely that she would have stayed in the workforce and achieved a substantial income as a successful commercial solicitor.

[331] Ms. Danicek has a residual earning capacity which I have described above.

[332] In all the circumstances, a fair and reasonable assessment of the plaintiff’s loss of capacity, net of her residual earning ability, is $5.1 million. It is so awarded.

See: Danicek v. Alexander Holburn Beaudin & Lang, 2010 BCSC 1111.

Also see: Ex-law student gets $6M after career derailed in fall from CTV News.

- Garry J. Wise, Toronto

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Ruling Today on Stay Pending Appeal of California Prop 8 Decision

Washington Post reports:

SAN FRANCISCO -- The federal judge who overturned California's same-sex marriage ban is set to rule Thursday on whether gay marriages should resume immediately in the state or await an appeals court's input.

Chief U.S. District Judge Vaughn Walker announced late Wednesday that he would issue his decision by noon on requests to impose a stay that would keep Proposition 8 in effect while its sponsors appeal his decision.

The announcement came after lawyers for gay couples, California Gov. Schwarzenegger and Attorney General Jerry Brown filed legal motions Friday asking that same-sex marriages be allowed to resume immediately.

- Garry J. Wise, Toronto

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Correction re: Court of Appeal on Twitter

Our report yesterday on the appearance of Twitter feeds for the Court of Appeal for Ontario and Supreme Court of Canada erred in crediting the fine folks at CanLii for these pages.

Via Twitter, we learned today that:

CanCourtsSCC  

The CanCourts/ tweets are provided by @slaw_dot_ca and @fodden They make use of RSS feeds from CanLII.

Congratulations, Professor Simon Fodden on yet another excellent innovation.

We stand gladly corrected.

- Garry J. Wise, Toronto

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Ontario Court of Appeal on Twittter

A nice discovery today.

CanLii Professor Simon Fodden has set up a Twitter page for the Court of Appeal for Ontario, featuring  concisely indexed links to current decisions by Ontario's highest appellate court.

It looks like decisions have been posting for several months, but the CanCourts ONCA Twitter site hasn't come to my attention until now.

Follow the OCA on Twitter here.  CanLii Professor Fodden also provides a Twitter feed for decisions of the Supreme Court of Canada here.

- Garry J. Wise, Toronto

Update: 

See the correction to this article, posted August 10, 2010, as also reflected in the strikethrough and corrected text in this post. Credit where credit is due.  Sorry for the error.

- GJW

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Shorter David Frum

Bristol and Levi broke up (again) because of same-sex marriage:

The harm feared from same-sex marriage has already arrived: Whether same-sex marriage is accepted or not, opposite-sex marriage as a norm and expectation has already collapsed.

The Bush speechwriter has once again left me speechless, as he apparently pines for the days when propriety alone would have forced a shotgun wedding upon this highly publicized, ill-fated couple.

- Garry J. Wise, Toronto

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NHL Arbitration Nixes Kovalchuk's Suspect 17-Year Deal

Arbitrator Richard Bloch has sided with the NHL and rejected a suspicious 17-year contract between Ilya Kovalchuk and the New Jersey Devils.

The full text of Richard. Bloch's NHL - Kovalchuk arbritration opinion and award is here.

The Toronto Star's Damien Cox reports:

Talking to people throughout the hockey industry this morning, it was clear most expected that while Ilya Kovalchuk's 17-year contract with the New Jersey Devils was a rather obvious - blatant? - attempt to circumvent the NHL's salary cap system, a number of similar contracts allowed in recent years by the NHL was going to make it difficult for arbitrator Richard Bloch to side with the league in its rejection of Kovalchuk's deal.

But Bloch did just that, saying the Kovalchuk contract "has the effect of defeating" the NHL's cap system.

..."In this case, the record strongly supports the claim this contract is “intended to, or has the effect” of defeating or circumventing the Salary Cap provisions of the CBA," wrote Bloch in his decision. "The overall structure of this (contract) reflects not so much the hope that Mr. Kovalchuk will be playing in those advanced years, but rather the expectation that he will not. This is a long contract --17 years -- the longest in NHL history. That, in itself, poses no contractual problem. . . . .  But Kovalchuk is 27 years old, and the agreement contemplates his playing until just short of his 44th birthday. That is not impossible, but it is, at the least, markedly rare. Currently, only one player in the League has played past 43 and, over the past 20 years only 6 of some 3400 players have played to 42."

Call it a small victory for common sense in professional sports jurisprudence.

- Garry J. Wise, Toronto

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Bill 68: Proposed Changes to the Ontario Employment Standards Act

Ontario's Bill 68, the Open for Business Act, 2010, which passed second reading in June, proposes significant changes to Ontario's Employment Standards Act.  

The legislation is described in a provincial government backgrounder:

The Ministry of Labour is proposing amendments to the Employment Standards Act, 2000, that would:

• Allow the Director of Employment Standards to require claimants to provide specific information and let their employer know about their Employment Standards complaint before the claim is assigned to an officer. 

• Authorize employment standards officers to attempt settlements of complaints. 

• Allow officers to make decisions on claims when parties fail to attend decision-making meetings or provide evidence on time. 

These amendments support the Ministry of Labour’s initiative to advance fairness in the workplace and modernize its Employment Standards program. These initiatives include:

• Launching a task force in August 2010 to eliminate the backlog of 14,000 claims in two years. 

• The new online severance pay decision tool for employers and employees. 

• The future launch of a termination of employment/temporary layoff tool that determines when a layoff becomes a termination, the termination date and any termination pay owing.

The Toronto Star today details objections by various critics of the proposed changes:

“You don’t reduce backlog by creating more barriers to discourage complaints,” said Fred Hahn, president of the 230,000-member Canadian Union of Public Employees in Ontario.

For more reading, see the Star article: Employment bill stymies complaints against employers, critics say.

- Garry J. Wise, Toronto

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Kagan Appointment to U.S. Supreme Court Confirmed

By a vote of 63-37, the U.S. Senate has today confirmed the appointment of Elena Kagan to the U.S. Supreme Court.

- Garry J. Wise, Toronto

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Sanctimony, Hypocrisy and the Proposition 8 Ruling

AmericaBlog's Joe Sudbury, on Newt Gingrich's vocal opposition to yesterday's Proposition 8 decision and the legalization of same-sex marriage in the U.S.:

Newt thinks marriage should be the union of one man and three consecutive women.

- Garry J. Wise, Toronto

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Thomson Reuters Acquires Canada Law Book

In a development that will shock many in Canada's venerable legal publication industry, Thomson Reuters today announced that it has acquired Canada Law Book.

A Thomson Reuters press release tells the tale:

Toronto, Canada, Aug. 4, 2010 – Thomson Reuters today announced the acquisition of Canada Law Book, a division of the Cartwright Group Limited. Canada Law Book will be aligned with Carswell, a Thomson Reuters business headquartered in Toronto. Terms of the deal were not disclosed.  

Canada Law Book produces publications across 36 topics of legal information, and is known for having high editorial standards, as well as authors who are among Canada’s most prominent legal scholars. 

...Carswell and Canada Law Book each brings more than 100 years of legal tradition and expertise to customers, and together provide the recognised excellence, integrity and highest editorial standards that ensure legal practitioners, judges and academics receive the most comprehensive materials for their practise.

With the nation's two leading legal publishers now about to operate under one roof, one wonders whether the end result will be fewer legal publications, fewer writers being published, and the bottom lines playing a more decisive role than ever in determining the materials that are ultimately made available to the legal profession.

And needless to say, it wouldn't be much of a surprise if,  not so long from now, another press release announces that these two publishers have been folded into one. 

- Garry J. Wise, Toronto

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California's Proposition 8 Restriction on Gay Marriage Ruled Unconstitutional

A California federal court today ruled that the State's voter-enacted ban on gay marriage is unconstitutional.  The full ruling of U.S. District Court Judge Vaughn Walker is below:

- Garry J. Wise, Toronto

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