Our Take on Things

In response to the appalling riots in the United Kingdom this week came news that David Cameron plans a crackdown on social media. While it’s unclear exactly what steps are planned, it seems that the goal is to prevent certain illicit-themed communications on services such as BBM, Twitter and Facebook. The British government argues that while social media can be a force of great democratic good, as seen in the “Arab Spring” uprising, it can also be used to undermine authority and to plot criminal activity.

On the flipside, a court in Indiana just handed down its judgment against a school that took punitive actions against students who had posted sexually suggestive photos on their MySpace pages, in contravention of the school’s code of conduct. The court held that the school’s actions constituted a breach of the student’s rights of freedom of expression.

While our work usually centers around social media as it relates to business (in general) and the workplace (in particular), the caselaw on these emerging technologies is being pieced together from areas as disparate as those mentioned above.

The rapid changes in technology and the courts’ race to keep up makes it incredibly difficult for lawyers to give good advice to businesses on how social media issues should be handled. Add to that, the convergence of privacy issues and the emergence of cybercrime, and you’ve got a difficulty multiplier that make it even harder to offer helpful guidance.

That said, there are some certainties and there are many best practices that help to minimize risks to businesses in terms of litigation exposure, as well as actual loss. The thing is, they’re very closely related to the business you do, and how you do it. There are no broad, sweeping, effective strategies in this area.
We have written before about our advice to clients with respect to having solid, workplace-appropriate technology-use policies in place, as well as appropriate security and other safeguards, and we will continue to do so. But just as we continue to advise clients to think about these issues, we are constantly thinking about them, the courts are constantly thinking about them, and the technology and social media landscapes are evolving. As such, the “best” best practice is one of constant review.

Ask yourself if the policies and practices you have in place are working for your business? Are they current? Are they cost effective? Do they address emerging uses of technology? Have they been vetted by experienced professionals including lawyers and information technology security experts? And more importantly than many business-owners seem to realize, do they address the practical realities of how social media technologies are used by my employees?

If you have any questions about your social media policy please contact us.

Scott R. Young

Today we are celebrating our Law Clerk, Christine Allan’s, 10th Anniversary of starting to work with our firm.

As our clients know, Christine is a great resource to all of us and through the ten years we’ve worked together has seen many changes including the expansion of the firm & movement to our new premises.

Christine makes all of our lives at the office at lot easier & we are very fortunate to have enjoyed working with her for 10 years – we look forward to the next 10 as well!

Congratulations Christine !

Inga B. Andriessen, JD

With the mercury rising to the high thirties this week, and the humidex values into the high forties, we thought this would be a good time to write about employer obligations and the heat.

The Occupational Health and Safety Act has very few specific restrictions with respect to the workplace temperature. A health care facility, factory, retail store or office cannot be colder than 18°C, but no maximum temperature is mandated. A construction project “work chamber” can be not hotter than 38°C and a medical compression lock can be no hotter than 27°C. Other than that, no specific maximum values are given in the legislation.

But that doesn’t take the heat off of employers – pun intended. Employers are obligated by the Act to “take every precaution reasonable in the circumstances for the protection of a worker.” The Ministry of Labour (and the OHSA tribunal and the courts) interprets that to include an obligation to develop “hot environment policies” and procedures to protect workers in “hot environments due to hot processes or hot weather.”

The Ministry suggests that the ultimate objective is to prevent acclimatized workers’ core body temperatures from rising above 38°C.

Looking at the tribunal decisions and caselaw, it’s difficult to make a universal prescription that will work for all, or most, or even many, workplaces. In some cases heat tolerance assessments have been ordered; in other cases, modifications to the workplace or to the very nature of how the work is done. The diversity of workplaces and occupations is probably the reason that the legislation itself offers such limited guidance.

Our advice is simple; it’s very very hot out – do your best within your resources to ensure that the workplace is cool. Do your best to ensure that your employees are cool, that they are well-hydrated and that they have access to resources that are going to make doing their jobs as easy as possible while the heat wave lasts. Try to limit outdoor exposure and events as much as possible. Provide air conditioning or proper ventilation where appropriate. If it’s not possible to modify the environment, then concessions will have to be made on how work is done. More breaks for water. Less time consecutively spent doing physically exhaustive tasks (like writing a legal blog!). Whatever is reasonable in the circumstances. Listen to the workers and keep cool.

If you have any questions about this, or any other, subject, please feel free to contact me.

Scott R. Young

It’s summer time in the Big Smoke – the time of year a lawyer’s thoughts turn to Muskoka.

As the head of the firm, I insist that lawyers & support staff all take actual time off during the year – no pay in lieu of time off.

I don’t do this to be a mean ogre type of boss – I do it because I believe that in order to work 50 weeks a year (give or take) you need to re-charge.

That being said – I was struck by a column in the Globe & Mail today that commented on cottages with internet being rented quickly & a recent vacation involving tablets, e-readers, phones, etc. I guiltily considered my last “vacation” and realized I had not unplugged … am I practicing what I preach?

Well, no, but then again – our clients benefit from that !

Happy sunny weekend – try to unplug for an hour or so along the way.

Inga B. Andriessen, JD

Every once in a while I like to write an entry that supports Inga’s assertion that I do the boring-desk-work™. This will be one of those entries. That said, if you, like me, get jazzed about the idea of creative ways to keep what’s yours, you might enjoy this entry anyway.

Maybe it was the lackluster economic situation of the past few years, maybe it was our exceptional educational pedigree, stunning creativity and unrelenting good looks, but whatever it was, we have found some really good ways to secure payments and other obligations in the past few years.

Traditionally, security refers to some hard asset that is leveraged in order to borrow money or obtain some credit. A mortgage is secured by the house being mortgaged; a car loan is secured by the car. Simple stuff. But in an age of shrinking credit, this can’t always be the case.

We’ve recently dealt with situations where we’ve negotiated collateral mortgages to secure accounts, conditional sales agreements (where the thing being sold doesn’t belong to the person buying it until the last payment is made) for goods, share pledge agreements for financing, and everything in between.

Some clients feel badly about asking for additional security for their accounts. We always remind them that the security is only executed upon if someone decides not to pay for something they’ve agreed to pay for. The clients are then usually much more receptive to protecting themselves through securitization.

In a less strict sense of the word, we’ve also been helping clients secure their accounts by tightening up their intake and billing processes. We’ve been drafting retainer agreements and intake forms that make sure our clients get the information (and sometimes information is security) they would need in order to collect on a judgment (if it ever came to that) up front – when the relationship is positive and it makes sense to do so. Drivers Licenses and banking information in some cases, personal guarantees that are registered under Ontario’s Personal Property Security Act in others. Whatever the relationship, we’re thinking of some creative ways to secure the payment.

If you have any questions about what we’re doing or what we can do for you, please contact us.

Scott R. Young

The long weekend is almost upon us and our firm will be closed Friday for the celebrations.

I find it interesting that the news in the papers this week is starting to focus on what divides us as a country (ex-pats seeking healthcare & voting rights, Pride Week, race to pick a few headlines) rather than what unites us as a country & makes it one that I certainly would never trade for another.

While our legal system is not perfect, it is one that we can have frank & open discussions about without fear of persecution – this unites us.

Our freedom to discuss religious beliefs and sexual orientation without persecution unites us.

Our freedom to criticize our government without persecution unites us.

The absolute joy on the faces of the school aged kids as they celebrate their last week of school this week unites us.

Our desire to wear red & white on this Friday unites us.

A little more celebration about what we have in common & a little less looking for things that divide us would be nice in the run up to Canada’s 144th birthday – that would help unite us.

Happy Canada Day !

Inga B. Andriessen, JD

Normally I try to draw a line between the solicitor’s work that I do and the litigation work done by other lawyers, including those fine litigators at our firm – but when I read the Motion for Summary Judgment today in the case against the Dallas Mavericks’ management team, I might have yearned for the courtroom just a bit.

The motion itself is worth reading, even if you’re not usually prone to reading legal documents. It’s posted online by that bastion of legal reporting, TMZ.

I usually try to find the teachable moment when I hear about a piece of legal news like this, but it’s so self-evident in this case I’ll just let the picture speak.

Scott R. Young

Maybe it was the heat wave we had this week, but this Friday I must rant.

The reason for my rant is an article in the June 6, 2011 Law Times, a paper aimed at the legal community in Canada, but mostly Ontario. The Article is entitled “LSUC (Law Society of Upper Canada) Considers Counseling for Returnees”.

The gist of the Article is that the LSUC, which is the governing body of Lawyers in Ontario, is considering offering career counseling to female lawyers to help them understand the consequences of leaving the practice of law (for maternity leave) before they make the leap.

I, the author of this rant and owner of this law firm, am a female who has a tween aged child that was born 6 years into my law career.

Before I decided to have my child, I created a plan as to how I was going to manage both being a lawyer and a mother. I evaluated the likely impact on my work and planned accordingly. I thought it through.

These are the same skills I use daily for my clients – I evaluate issues and create litigation plans for clients based on a variety of factors. I do this well because I am a good lawyer.

I feel such outrage at the proposed career counseling for female lawyers: if you cannot figure out something that important for yourself, are you truly capable of making recommendations to clients and being paid for those recommendations? Should you be a lawyer?

Offering this type of counseling solely for female lawyers weakens the image of capable female lawyers.

I never think of myself as a “female lawyer” – I’m a lawyer. I expect to be treated equally, not “specially” … if I need extra help to do my job, how can I charge the same rate as a man?

As with much of the extra pampering the LSUC seems to feel that female lawyers need, I am left with the thought I always have – not everyone needs to be a practicing lawyer.

If some women leave the profession because they’d rather stay at home with their children, that is o.k.: we don’t need to cajole them into staying in the practice of law.

If some women chose not to be litigators (which I am and still love after 18 years) because they don’t like the confrontation, that’s also o.k. – there are those of us who thrive on litigation and once again, not everyone needs to be a litigator.

Treat all lawyers the same. If some people choose to stop being lawyers, let them: there are many others of both genders waiting to fill the ranks.

Inga B. Andriessen J.D.

There is a lot of confusion about the lawyer’s duty of confidentiality and we have recently had a few run-ins with that confusion.  So much so that it bears a blog entry.

If you are a regular reader of this blog, or just a fan of the way lawyers in Ontario are regulated (and really, who isn’t?), you will know that we are all bound by the Rules of Professional Conduct.  Rule 2.03 concerns a lawyer’s duty of confidentiality:

A lawyer at all times shall hold in strict confidence all information concerning the business and affairs of the client acquired in the course of the professional relationship and shall not divulge any such information unless expressly or impliedly authorized by the client or required by law to do so.

This means that if you have retained a lawyer, the duty applies.  The duty is akin to having your lawyer sign a very tight Non-Disclosure Agreement with severe penalties.  Lawyers who violate the rules are subject to discipline and disbarment – this rule is no exception.  And trust me; your secrets are not worth our license to practice law.

There are exceptions to this duty, but they are few and they make sense.  A lawyer may divulge the bare minimum required if (1) compelled to do so by a court, (2) to avert serious harm or imminent death, (3) to defend ourselves in an action where a client sues their lawyer and the confidential information will exonerate the lawyer and (4) where a client refuses to pay the lawyer and the confidential information relates directly to the non-payment.

The reason for the rule is simple –in order to have the full measure of legal representation, clients need to feel that they can freely discuss their affairs with their lawyer.  The reverse is also true – in order to give a client the full measure of representation, lawyer’s require as much information as possible – the good, the bad and the ugly.

If you have any questions about the duty of confidentiality or any other aspect of your legal representation, contact us.

Scott R. Young

I like to listen to AM640 in the mornings on my way to work.  John Oakley has a business analyst by the name of Lou Schizas on near the top of the hour.  He is conservative and has a good head on his shoulders, so he is ok in my books.  Lou often refers to the law of unintended consequences in his chats with Mr. Oakley.  The basic premise of this law is “beware of what you wish for”.  The Stones took a more positive spin with their famous line: “you don’t always get what you want, but if you try sometime, you might find, you get what you need”.

Eugene Meehan is a lawyer in Ottawa who deals with Supreme Court of Canada matters.  He has an email notice that goes out at least once a week updating on cases that have appeared before the Court.  The law of unintended consequences came up in one of the case summaries, sent to me this week:

CIVIL PROCEDURE IN QUEBEC:  BUSH-HIDING P.I.’S

The Applicant owned a cottage on land adjacent to the land of his sister, the Respondent Ms. Tétrault, with whom he had a strained relationship.  In March 1999, Ms. Tétrault informed him that she intended to fence the property and make him pay part of the cost.  In November 1999, she carried out her plan and decided to put up a fence along what she considered the boundary of her property.  Since she had already been a victim of mischief and she suspected that her brothers were the guilty parties, she wanted to obtain evidence in case there was any trouble.  For that purpose, she hired a private investigator, the Respondent Mr. Harnell, who hid in a bush and trained his camera on the Applicant’s property so he could take photographs when Ms. Tétrault put in the fence posts.  The Applicant was coming back from hunting with his weapon slung across his shoulder when he saw Mr. Harnell hiding in the bush.  He asked him what he was doing there.  To avoid revealing his assignment, Mr. Harnell answered that he was doing checks for Hydro-Québec.  Since there were no electrical transmission lines in the immediate area and it was a Sunday afternoon, the Applicant did not believe him.  During the previous weeks, the Applicant had heard about an aged couple from the area who had been beaten and murdered.  Upon hearing such a frivolous story, the Applicant, whose aged and sick mother was inside the cottage, thought that he might be dealing with one of the assailants, who had not yet been arrested.  He therefore told Mr. Harnell that he was going to get the police to come.  Mr. Harnell felt threatened and wanted to return to his vehicle.  Thinking that Mr. Harnell wanted to flee, the Applicant grabbed him by his shirt collar.  Because of the Applicant’s violent behaviour and the fact that he was armed, Mr. Harnell sprayed him in the face with pepper spray.  In the meantime, the Applicant’s brother arrived and the police were called to the scene.  The Applicant brought an action against the Respondents seeking $99,900 in damages.  Mr. Harnell argued self-defence.  Ms. Tétrault supported him and added that she was not liable for his actions.  Through cross demands, both of the Respondents claimed damages and their extrajudicial costs.  Trial judge in sum:  Applicant’s action dismissed; Mr. Harnell’s cross demand allowed and Applicant ordered to pay him $5,000; Ms. Tétrault’s cross demand dismissed.  The C.A. dismissed the appeal.
Maurice Tétrault v. Marie-Michèle Tétrault and Robert Alfred Harnell  (Que. C.A., November 17, 2010) (34064)  “The application for leave to appeal…is dismissed without costs.” 

So, to summarize, we have a sibling dispute which begat a fence, which begat a private detective, which begat a case of mistaken identity, which begat a pepper spraying, which begat a lawsuit that took 12 years to get all the way to the Supreme Court of Canada.

That was one expensive fence.

Paul H. Voorn, LL.B.