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To market successfully, you need to speak the language of your target audience. To do that, you first need to identify who you’re targeting. Many lawyers make the mistake of trying to target too broad an audience. The result is a watered down message that doesn’t really speak to anyone.

The first step in creating a marketing strategy is to explore your current client base and identify the clients with whom you work best and bring the most value to your firm. Next, you’ll identify those clients with whom you do not enjoy working, and ascertain the characteristics of ‘undesirable’ clients.

After examining your existing clients, you will consider the clients you really want to work with, and create the profile of the ‘most wanted’ or ‘ideal’ clients. It is only when you have a good picture of who those clients are that you can move forward to determine how to attract those clients, how best to serve them, what processes and procedures need to be in place, what employees will work best with those clients, and how to properly position your firm. 

Clients are a reflection of YOU

People do business with people they know, like and trust. Clients are attracted to people who, at least in some ways, resemble them. In order to trust someone, you must feel comfortable that the person you’re working with shares some of your values and goals. Identifying your individual values and what you stand for can help clarify the kinds of clients that you will work best with.

If your clients are a reflection of you, you must be clear about who you are and what you stand for. If you can’t articulate what your core values are, how will your clients be able to recognize them?

Who are you and what do you stand for?

• What are your core values and principles?
• What can clients count on you for?
• Can your clients rally around your cause?
• Is there a common cause/passion between you and your clients?

Creating a client profile 

One of the biggest mistakes lawyers make when trying to develop business or market themselves is in trying to be all things to all people. This is especially true in a difficult economy. But by not specifically targeting a particular audience, the marketing message gets watered down and loses its impact. The message becomes far too generic. Potential clients fail to respond and lawyers become frustrated.

Although many lawyers are beginning to catch on to the idea of developing a niche practice or focusing on a niche, they fail to take the additional step of getting into the minds of their potential clients and doing some serious thinking about what the potential client wants or needs most. Doing this before embarking on a marketing initiative can save you significant time, money and frustration.

Once you have a clear picture of your ideal client in mind, it’s easier to focus on what is important to them, where to find them, how to attract them, and how to serve them well.

Defining high value clients

Remember that value isn’t measured solely by the size of the case or the size of your fee. Valuable clients can be those who have realistic expectations, respect your advice or want the best service. Perhaps your ideal client is one who works with you on a case – or perhaps it’s just the opposite. Maybe you work best with clients who leave you alone to work your magic. Maybe your best clients are simply those who will be ‘raving fans’ and generate lots of referrals for your practice.

Once you have a preliminary idea of what a ‘high value’ client means to you, they will be easier to spot. This takes some in-depth work, but it is well worth it. When you become skilled at defining and identifying high value clients, you waste less time and energy on lower value clients that sap your energy or cost you money and time.

It is difficult to identify ‘high value clients’ or a ‘target market’ in a vacuum. It is much easier to think about creating a profile of the ideal client by considering clients you have worked with in the past – even if those former clients were when you were in a different firm or practice area than you are currently working in. I recommend that my clients choose three good existing or former clients and three bad ones and examine patterns. What made those clients good or bad? What behaviors did they exhibit? What words did they use to describe their situation? How were they referred to you? How did they act at the initial consultation? Were there any ‘red flags’ that were ignored? 

Calling your clients by name

Think of your marketing message as a way of calling the name of your potential clients. Rather than making a general statement (“Hey, you!”), identifying someone by name (“Hey, Bob!”) will get their attention much easier. You’re tuned in to that information because it’s very specific to you. You want your marketing to do the same for your clients. You want them to think you’re talking directly to them – because you are.

In order to call your clients by name, you need to be intimately familiar with who those clients are. The better you know the clients you’re seeking to attract, the better your marketing efforts will be. Creating a client profile is a good way to develop that knowledge.

When creating your ideal client profile, remember that your answers may be different for different practice areas. Also, don’t just focus on the surface information, such as demographic information. Dig deeper. Three areas to explore are the three Ps: Psychographics, Patterns of choosing legal services and client Problems.  

Psychographics are one of the most powerful ways to connect with your clients, and also one of the most frequently overlooked. You may find that your clients are actually very different demographically, but psychographically, they have a very similar profile.

Psychographics, while less tangible, are much more accurate in predicting which people or businesses will relate best to your particular message, method or solution. Psychographics include things like your client’s mission, philosophy or values, their reputation in the industry or community, their management or communication style, integrity or litigation history. For example, do you prefer clients who are more collaborative and settlement oriented, or those who want to fight or pursue litigation regardless of the cost?

An important part of profiling your ideal client is determining how they choose legal services.  Knowing that your clients are more likely to make the decision to hire a lawyer at certain times of the year, as the result of specific triggering events, or upon receipt of specific types of information can help you plan your services and your marketing strategy. Learn why your clients hire you, what kids of service providers they prefer and what similar services they have used, among other issues.

Finally, one of the most effective ways to connect with clients is by identifying what problems they face. Everyone wants their problems to be solved, and if you can identify what the client perceives their problem to be (as opposed to what you think their problem is), you’ll get the potential client’s attention quickly – and start gaining their trust. Think about not only the problems themselves, but also about the symptoms of the problems that your clients commonly experience, and how clients typically describe them.

The client profile will help you to focus your marketing efforts, plan effective means of reaching your ideal clients, and develop methods to serve them better.  The insight it provides can be invaluable for the future of your practice.

Norwegian lawyer Fredrik Heffermehl, who holds an LLM from NYU, argued in his book, Nobels vilje published in 2008, that half the awards of the Peace Prize have not conformed to Alfred Nobel’s 1895 testamentary intentions. Now his book is about to be published in translation as The Nobel Peace Prize: What Nobel Really Wanted and the issue is being mooted in the English-speaking press.

Heffermehl’s interpretation is that “Nobel did not establish a prize for ‘peace’ in whatever guise, but a prize for work for peace in certain ways and certain fields” [emphasis in the original]; he created a prize for those who worked in certain ways to abolish the military and, so, to stop war.

You can judge for yourself — well, more or less, if you don’t read Swedish — because Nobel’s will is available online translated into English (Swedish version). The portion most specific to the “peace prize,” one of five equal portions of the interest of a fund, reads as follows:

. . . and one part to the person who shall have done the most or the best work for fraternity between nations, for the abolition or reduction of standing armies and for the holding and promotion of peace congresses. . . .

. . . that [prize] for champions of peace [be awarded] by a committee of five persons to be elected by the Norwegian Storting.

It’s not clear to me, not having read the Norwegian book, what Heffermehl’s exact concern is with the “fraternity” provision, which would seem to cover a multitude of sins, shall we say, particularly when followed by “champions of peace.”

Norway and Sweden are both involved in the awarding of Nobel Prizes. At the time of Alfred Nobel’s death Norway had been united with Sweden since the Napoleonic wars and didn’t gain its freedom until 1905.

[Hat tip: @LawandLit]

There has been much written on Slaw and other places about the paperless office, or the virtual office. 

My personal view is that for the most part, we either already have the tools to accomplish it, or if we don’t have them, they can be acquired at low cost.   The barrier is mostly our will to do it.  Some people don’t see the need, or have a hard time giving up paper, or just find it hard to change.

Technolawyer points to an article that’s worth a read by New York lawyer Jay Fleishman entitled Being a Virtual Lawyer is all Mindset, not Technology.  While the article talks about the virtual office, the same goes for the paperless office, as a paperless office is essentially a virtual office that stays in one place.

For the record, I’m not totally paperless yet, but I’m getting close.  Perhaps I just need to take a few minutes to think about the paper that still flows through my office, and decide how to deal with it.

About a month ago, I gave up my private practice to accept a position as in-house counsel. It posed an interesting challenge, both logistically and professionally. Logistically in the sense that I now had an office full of furniture, files, equipment and knick-knacks that had to be either dispersed or stored, and professionally in that my new employer’s industry (mining services) was almost completely foreign to me. 

It turns out that both the logistic and professional challenges are proving a bit easier to manage than I had initially thought (which is certainly a relief). However, some new issues are arising in terms of drafting policies that cover the many legal issues facing a publicly-traded, multi-national corporation. Some of those issues are more banal than others, and it helps to get occasional direction from higher courts as to the direction the law is (or will be) taking.

Our Canadian Courts have their share of cases involving the workplace interfacing of employees and technology. Occasionally, however, our American neighbours take the lead in addressing certain issues.

Case in point: on June 17th, the United States Supreme Court (in the case of City of Ontario v. Quon), the court determined that the city of Ontario, California, did not violate the Fourth Amendment (search and seizure) rights of one of its police officers when it went through the contents of his cell phone’s text messages. The Court attempted to limit its ruling because of what it perceived to be the ever-quickening pace of the evolution of technology.

I’ve read that this is the first time the Supreme Court has addressed a public employee’s expectation of privacy in the workplace as it relates to text messaging. The City of Ontario had policies in place dealing with employee communications using city resources (in this case, a two-way alpha-numeric pager). While text messages were not specifically dealt with in the policy, the officers were told verbally that they had no “expectation of privacy” when using city resources, as the “pages” were considered by the City to be the same as e-mails, and therefore they could be the subject of an audit. They were also told that personal messages would be permitted, so long as any cost overruns were covered by the employee.

It turns out that Mr. Quon made an “excessive” number of messages on a number of occasions. The police department decided to conduct an audit of Mr. Quon’s messages to determine whether the character limit of the City’s subscription plan was insufficient for the City’s needs, given the frequent over-limit charges.

When the City conducted its audit, it found that Mr. Quon sent 456 messages during work hours in one month, of which no more than 57 were work related. He also sent 80 messages during one single day at work; and on an average workday, he sent or received 28 messages, of which only 3 were apparently related to police business.

Well, it also turns out that Mr. Quon was having an affair with a co-worker. Mr. Quon was married at the time.

Arriving at the issue at hand, the question the Court had to address was whether the City’s (initially innocuous) audit constituted a violation of Mr. Quon’s expectation of privacy. The Supreme Court determined that it must proceed with great care when considering the whole concept of privacy expectations in communications made on electronic equipment owned by a government employer. It reasoned that “[r]apid changes in the dynamics of communication and information transmission are evident not just in the technology itself but in what society accepts as proper [behaviour]. At present, it is uncertain how workplace norms, and the law’s treatment of them, will evolve.”

So what should a prudent Canadian employer do?

Section 8 of our Charter of Rights and Freedoms doesn’t have the same rigidity as the US Fourth Amendment. In any event, its application is limited to governments, and not private employers.  Notwithstanding that (pardon the obscure constitutionally-related pun), employers generally have privacy legislation issues with which they are required to deal.

A prudent employer would have a clear policy on what is – and, more importantly, what is not – permitted while using company resources. Sending work-related text messages and e-mails to co-workers should obviously be acceptable. Setting clear guidelines as to how many “personal” e-mails could be considered acceptable could be a start, but would be a very fine line to have to draw.

A more well-rounded approach might be setting timelines and content rules for what can be sent, browsed or forwarded on company technology resources (i.e., limiting personal e-mails and browsing to lunch hours, and restricting the content to be browsed). 

A good, solid warning system should also be spelled out to employees. Verbal warnings, followed by written warnings, followed by dismissals for cause always make for a more solid case to defend when facing a judge who may – or may not – be familiar with all of the new, creative technological means with which one can avoid work.

Chris Berzins is a long-time member of the Canadian administrative tribunal community and someone whose writings I’ve followed for some time. When he recently forwarded a copy of his most recent article – called “Administrative Transparency and the Protection of Privacy in a Digital Era,” now published in the May 2010 supplement of The Advocates’ Quarterly – I jumped on the opportunity to invite him to an interview.

We talked last week, and had a wide-ranging conversation that led me to conclude that Chris is a guy who has a very honourable commitment to seeing that administrative tribunals do things right. Here are some highlights from our chat, which I qualify by stating that the views Chris expresses are made only in his personal capacity and not as an employee of the Ontario Securities Commission.

Dan Michaluk: So why don’t you tell us a little bit about your background Chris.

Chris Berzins: I’m a 1984 graduate of Queen’s University Law School. I articled with the Ontario Labour Relations Board and then went right to the Ministry of Labour’s Policy Branch. I ended up managing the Ministry’s freedom of information and privacy office from 1988 through to about 2005, and after that I joined the General Counsel’s Office in the Ontario Securities Commission.

DM: What was it like to work with Ontario’s access and privacy legislation in its early days?

CB: We were a very high volume ministry on the access request side and had a lot of interesting issues come up on the privacy side too. When I got involved there were a lot of issues of first impression and I found that particularly interesting. I also have to say, frankly, that I found it frustrating too. The Information and Privacy Commissioner’s office had a unique opportunity to really address issues in a manner that would have laid the ground work for better things to come but, in my view, they failed to do that. I ended up writing a number of articles on judicial review of the IPC and why I thought it had become a problem.[1] This was part of my motivation for going back and doing an LLM in administrative law at Osgoode.

DM: You’ve written lots about the tension between administrative transparency versus individual privacy.

CB: Three articles in a row with at least one more to come![2] It’s a fascinating issue and I think my background – as someone who’s studied administrative law and been a privacy officer – allows me to see the arguments from both sides.

DM: Summarize your view then.

CB: I think it’s perfectly possible to strike the appropriate balance between administrative transparency and individual privacy. What agencies really have to do is think about what administrative transparency is mostly about. In my view that’s showing the wider public the manner in which the agency goes about making its decisions. You can do that without compromising the privacy of individuals who are appearing before you, keeping in mind that in some situations there may be a compelling public interest in making some personal information publicly available.

DM. Give us an idea when identity is relevant.

CB. There’s a spectrum of matters. Take benefit appeals, for example, where it is just an individual and an agency dealing with a factual question about entitlement. There no compelling need to disclose the appellant’s identity. A good example is the Ontario Workplace Safety and Insurance Appeals Tribunal. It has produced well reasoned and detailed decisions that don’t identify the appellant or, in fact, the appellant’s employer.

DM: And the other end of the spectrum?

CB: The Ontario Securities Commission has a clear statutory mandate to protect investors. You can certainly base a significant disclosure of personal information on that statutory mandate. Then you get probably a number of agencies that fall in the middle – the Ontario Labour Relations Board, for example, that adjudicates disputes between parties under a number of statutes. Agencies need to examine what it is they are doing, what their mandate is, what kind of personal information they are dealing with and then engage in a line drawing exercise. They need to figure out how they can meet those goals of transparency while protecting privacy.

DM: Is that happening?

CB: Certainly a number of agencies are addressing the issue but I get the feeling that in other cases some agencies are saying, “We have done it this way for a long time and we’re not about to change.” That’s not a satisfactory response in my mind.

DM: Who ought to lead administrative tribunals forward? Is there a particular stakeholder who should be stepping up on this?

CB: Clearly tribunals need to address their own particular circumstances. But the privacy commissioners need to be involved as well. We have seen some action of late. The British Columbia and Saskatchewan commissioners have been especially active as has the federal OPC. I will say kudos, in particular, to former British Columbia commissioner David Loukidelis and to current Saskatchewan commissioner Gary Dickson, who’s done a great job on this issue. Not only did he issue the very well-reasoned Saskatchewan Automobile Injury Appeal Commission decision, but he has continued to profile the issue and has a list of resources posted on his website that tribunals can utilise. But there is more that needs to be done and we should be hearing from a few others that we haven’t heard from yet, in my view. It’s certainly a difficult issue for commissioners because it encompasses so many different tribunals with a wide range of perspectives, but to my mind, this is one of the more important issues that they ought to be involved in because it affects thousands and thousands of people, essentially all individuals who go before any adjudicative body where the adjudicative outcome becomes available on a website.

DM: Your new article actually focuses on internet publication. Does it alter the balance between transparency and privacy?

CB: I think there is no question that it certainly has changed the balance –anybody can get immediate access to decisions now and this is different than the much more limited disclosure that existed previously.

DM: Your thoughts on the solution?

CM: There is considerable work that still has to be done. You hear about search robot exclusion protocols. That may be well and good but that will take you only so far. The information is still out there. So tribunals will have to think more about how they write decisions – and that may be difficult for individuals who have written decisions the same way for a long time. I question how much personal detail really has to be some decisions. It’s going to take a more thoughtful approach to decision writing, rather than simply including everything, perhaps as a way of “judicial review-proofing” decisions. The other thing, of course, is clearly putting parties on notice with respect to the tribunal’s disclosure practices. Of course, you hope that putting people on notice isn’t a subtle deterrent to pursuing due process, but if they are aware of the tribunal’s practices they are at least in the position to raise privacy concerns in the course of adjudication. I think that’s fundamentally important.

DM: You also raise two new yet related issues in your new article.

CB: Yes, the use of adverse publicity by administrative agencies and the possibility of inadvertent disclosure of personal information.

DM: Explain each issue for us briefly.

CB: Regarding adverse publicity, there’s a concern about how agencies use their powers of publicity given the potential for unjustified reputational harm. There has been a considerable amount of debate about this issue in the United States over the years. The same debate hasn’t taken place here but we nonetheless have agencies that do use adverse publicity to fulfill their mandates. I think it is incumbent on such agencies to think carefully about this to make sure they are on sound footing, especially given the harms associated with internet publication.

DM: And the inadvertent disclosure issue?

CB: Agencies need to consider the possibility for inadvertent disclosure of personal information as they start to either require or invite their regulated communities to post information publicly. We’ve seen a couple cases come out of Alberta that highlight the issue – one involving SEDAR and another one involving the Alberta Energy and Utilities Board. In both cases very sensitive personal information got put up inadvertently on the internet.

DM: Let’s wrap up with a couple general questions. What are your recommended reads on practical obscurity and the internet?

CB: I’d recommend Daniel Solove’s The Digital Person and the Future of Reputation in particular. Also, Delete by Victor Mayer-Schonberger and Helen Nissenbaum’s Privacy in Context.

DM: Great. What’s up for you next?

CB: I’ve got a piece coming out in Canadian Privacy Law Review on the PIPEDA complaint process which has been informed by my own experience of having made a complaint and going through the process, which I found very frustrating. I’m currently working on two other pieces: one is a response to Jennifer Stoddart’s “Cherry Picking Among Applies and Oranges” piece from a few years back in which she defended the PIPEDA ombuds-model and the second is a more extended consideration of the adverse publicity issue.

DM: I look forward to reading those Chris, and wish you all the best.

CB: Dan, thanks for the opportunity to discuss these issues with you. It’s been a real pleasure.

[1] The first was Deference in Name Only: Judicial Review of Ontario’s Information and Privacy Commissioner, (1998) 20 Adv. Q. 304, followed by Judicial Deference and Ontario’s Information and Privacy Commissioner: In Search of Reasonableness, (1994) 28 Adv. Q. 1.

[2] The first article was Freedom of Information, Privacy, and Adjudicative Agencies in Ontario: Unresolved Issues and Emerging Concerns, (2006) 31 Adv. Q. 1, followed by Personal Information in the Adjudicative Decisions of Administrative Agencies: An Argument for Limits, (2008) 34 Adv. Q. 1. The third and most recent can be found at: (2010) 37 Adv. Q. 1.

proxies — proxy — legal person duly incorporated — vote — arrangement

The recent issue of The Copyright & New Media Law Newsletter is a special issue focussing on jobs and positions for non-lawyers including librarians, educators, communications coordinators and others. You can obtain a free copy of the Newsletter, subject to a creative commons license at www.copyrightlaws.com.

Lesley

The Law Society of Upper Canada commissioned a study by Michael Ornstein at York University’s Institute for Social Research, resulting in a report, Racialization and Gender of Lawyers in Ontario [PDF], presented to Convocation in April of this year. As expected — and, in my view, hoped — membership in the profession by visible minorities, Aboriginal people, and women is in fact growing. This growth has been dramatic in the case of women: in 1971 women accounted for 5% of the profession, whereas in 2006 they constituted almost 60%, as revealed in the chart below.

Click image to enlarge

There has been a very small increase in the number of Aboriginal lawyers, the rise from 0.6% to 1.0% occurring between 2001 and 2006. During the same period the number of visible minority lawyers increased from 9.2% of the pool to 11.5%, the effect of a steady increase among lawyers between 25 and 34 years of age: 1981 – 2% / 1986 – 3% / 1991 – 6% / 1996 – 11% / 2001 – 17% / 2006 – 20%.

To quote from the executive summary:

In Ontario in 2006, members of a visible minority accounted for 30.7 percent of all physicians, 31.7 percent of engineers, 17.6 percent of academics and 11.8 percent of high-level managers, compared to 11.5 percent of lawyers. This suggests that potential immigrants who are already lawyers in countries with dissimilar legal structures believe they will be unable to translate their skills in Canada as easily as other professionals. Even immigrants who come to Canada when they are young children are disadvantaged in pursuing a legal career.

The point about the difficulty that foreign-trained lawyers have entering the profession is no doubt true. But I wonder whether another factor is the relatively low status of the legal profession among certain immigrant groups, by comparison with, for instance, the practice of medicine.

To quote again from the executive summary:

In the last decade, gains in the representation of women are attributable largely to increased numbers of racialized women. Racialized women account for no less than 16 percent of all lawyers under 30, compared to just 5 percent of lawyers 30 and older; racialized men account for 7 percent of lawyers under 30, compared to 6 percent of lawyers 30 and older.

Again, one influencing factor might be the higher status of other professions and, hence, their attraction for favoured males.

The report contains careful and detailed analyses of the impact of gender and racialization on the earnings of lawyers. The oversimplified conclusions are that “Women and especially visible minority lawyers earn less than their White male counterparts.”

As a final note, I point out that Professor Ornstein makes extensive reference to the fact that this study was possible because of data available from the long form census. His report was written before Prime Minister Harper announced the end of the mandatory long form census.

[Hat tip: Off the Shelf]

I ran across this today while on a search for something else. At first, I just found it amusing.  Now I’m thinking it’s a brilliant bit of viral marketing for Paul Pearson’s firm, Mulligan Tam Pearson.

In addition to the 4,000+ views, Pearson has been featured in a Victoria Times-Colonist article. And now a mention here. Who could ask for anything more?    :)

One of the most wrenching questions in environmental law is who should pay for historic contamination which was legal at the time. There is no moral difficulty in holding today’s polluters responsible for the consequence of their acts. But historic contamination, the unintended result of perfectly lawful conduct, is different. Inco has been ordered to pay $36 million in damages for lost property value, after 2000, due to nickel emissions before 1984 that were legal at the time: Smith v. Inco 2010 ONSC 3790

Is this just?

The rule of law is an essential part of the fundamental bargain that allows societies to live together.  One key element of the rule of law, as explained by influential political theorist Joseph Raz, is that  laws should be prospective, rather than retroactive:

[T]he literal sense of the rule of law”… has two aspects: (1) that people should be ruled by the law and obey it, and (2) that the law should be such that people will be able to be guided by it… The law must be capable of being obeyed… If the law is to be obeyed, it must be capable of guiding the behavior of its subjects. It must be such that they can find out what it is, and act on it….

 All laws should be prospective, open and clear. One cannot be guided by a retroactive law.….

Observance of the rule of law is necessary if the law is to respect human dignity. Respecting human dignity entails treating humans as persons capable of planning and plotting their future.…

 The violation of the rule of law…  when the appearance of stability and certainty which encourages people to rely and plan on the basis of the existing law is shattered by retroactive lawmaking…  Often it is analogous to entrapment: one is encouraged  innocently to rely on the law and then that assurance is withdrawn and one’s very reliance is turned into a cause of harm to one. . .

There can be good reasons for retroactive laws.  For example, in R. v. Finta [1993] 1 S.C.R. 1138, the Supreme Court of Canada upheld sections of the criminal code that retroactively prohibited war crimes and crimes against humanity.    Finta, a lawyer and captain in the Royal Hungarian Gendarmerie,   carried out the Nazi order to go  confine, rob  and deport to concentration camps 8,617  Hungarian Jews. He did so in accordance with a decree of the Hungarian Ministry of the Interior. Expert opinion at trial was that this decree was manifestly illegal, and that a person trained in Hungarian law must have known so at the time.

According to the  Supreme Court,  the rule against retroactive law is a key principle of justice.  Nevertheless,  it was just to retroactively prohibit crimes against humanity:

 Since the internationally illegal acts for which individual criminal responsibility has been established were also morally the most objectionable and the persons who committed them were certainly aware of their immoral character, the retroactivity of the law applied to them cannot be considered as incompatible with justice.  Justice required the punishment of those committing such acts in spite of the fact that under positive law they were not punishable at the time they were performed. 

But how far should we extend this, in the absence of moral fault? Seven years ago, our Supreme Court allowed governments to issue retroactive cleanup orders to past polluters. Imperial Oil v. Quebec 2003 SCC 58 involved a petroleum depot that operated lawfully from 1920 to 1973. Imperial Oil sold the depot, as is, in 1979. The purchaser demolished the buildings, and resold the land to a developer at a nice profit. The developer twice cleaned up the land to the satisfaction of the Quebec Ministry of Environment and Wildlife, obtained a provincial certificate of authorization and a building permit, and then built a subdivision. Imperial Oil was not involved in this process, or notified of it.

In 1994, homeowners found hydrocarbons in the soil exceeding new residential standards. They sued the developer for building the subdivision and the City for issuing the building permit; the Ministry was added as a third party for approving the original cleanup. The matter became political.

To resolve its own political and legal problems, the Ministry ordered Imperial to prepare a cleanup plan. Imperial considered this unfair, and appealed. Among other things, the construction of the subdivision had made a cleanup much more expensive. The Supreme Court of Canada rejected their appeal, ruling:

1. Polluters owe a debt to future generations
2. Retroactive ‘polluter pay’ is fine, and
3. Cleanup orders don’t have to be fair

However, a different analysis should apply to historic contamination in the context of civil remedies, the enduring common law struggle to reconcile competing interests and principles. Administrative orders are: 

• issued by regulators 
• in the name of the public interest 
• on the basis of clear statutory authority. 

In contrast, civil suits, including class actions, generally: 

• seek financial benefits 
• for individuals
• without clear authority. 

But in Smith v. Inco, Justice Henderson of the Ontario Superior Court again chose retroactive liability, sweeping aside any meaningful limitation period for historic contamination. He found Inco liable of committing private nuisance and Rylands v. Fletcher, sixteen years after the plant closed. 

Why didn’t the limitation period protect Inco from the Port Colborne class action, Smith v. Inco (formerly Pearson v. Inco)? According to Justice Henderson, because of the discoverability principle. Everyone knew about the nickel refinery, and could easily have known that there was nickel in the soil in town. But most didn’t know it would affect the value of their properties. In fact, the nickel may not have affected property values.

But then there was a chain reaction, none of which was caused by Inco. The MOE did a study of the effect of nickel on plants. In Sept 2000, they published it. To protect themselves, real estate agents started to disclose nickel in local real estate transactions. And, according to Justice Henderson, that started the limitation period for loss in property value from running all over again.

If that’s all it takes, the same chain reaction could happen in many other places. There is TCE in Barrie and Cambridge, PAHs and many other things in Toronto and nickel in Sudbury. Petroleum hydrocarbons have been spilled almost everywhere. Land near busy roads has lead and salt. Agricultural land may have pesticides. No one can count any longer on the limitation period having run for any of it.

On July 19, 2010, the BC Attorney General released a white paper
containing draft legislation and policy proposals to significantly amend legislation in BC related to family law.

The suggested changes include the following:

- Enabling parenting coordination by agreement or court order;
- Amending the Commercial Arbitration Act to address family arbitrations;
- integrating reproductive technologies into determining a child’s legal parents;
- Replacing the terms “custody” and “access” with “guardianship” and “parenting time”;
- Defining “guardianship” through a list of “parental responsibilities” that can be allocated to allow for more customized parenting arrangements;
- Extending the legislative property division regime to common-law spouses who have lived together for two years in a marriage-like relationship or who are in marriage-like relationship of some permanence and have children together;
- Excluding certain types of property (e.g. pre-relationship property, gifts, and inheritances) from the pool of family property to be divided 50-50; and
- Providing that debts are subject to equal division.

Commentators have until October 8, 2010 to give feedback on the proposed legislation at www.ag.gov.bc.ca/legislation.

The legal press around the world this weekend featured a variety of stories that caught my attention. Let’s visit India, Sierra Leone, Namibia and England.

Law school teachers and law firm employers have long lamented the written communication skills of younger lawyers. Now The Times of India reports that one US client is insisting that the prose of its lawyers should be reviewed by its contract lawyers in India:

A Fortune 100 client of a US law firm, SmithDehn LLP, has specifically requested that legal research, analysis, writing, editing — exercises that cost millions of dollars in the US — be done by Indian attorneys.

Thomson West’s portal has been operating in Australia for some time – extending a model that has worked in the US for some time. The UK version was launched on July 26. It is a quantum leap forward in usability and utility from its American or Australian progenitors. It still largely reflects English law – you’ll have to look hard for Scots or Ulster law – but has some admirably practical consumer-oriented pages. And it has already signed up 5000 solicitors willing to respond to queries from visitors to the site who have legal questions. Its blog is a bit pedestrian, but these are early days, and you’ll hunt in vain for anything similar in Canada.

The British Library just released a report rich in examples of how copyright law affects scholarly research and how the framework
for intellectual property needs reviewing for the digital age.

The changes that contributors have proposed are their own and not the British Library’s. They cover a range of areas and include a wealth of ideas:
• calls for an extension to fair dealing provisions under UK copyright law to bring them into line with fair use doctrine in the US. One author addresses the difficulties of applying fair dealing provisions in the study of music and sound recordings.
• allowing the use of ‘orphan works’. One submission advocates that ‘orphan works’ be placed in the public domain.
• enforcing creators’ moral rights in order to preserve future creativity, and the need for exceptions to copyright law not being overridden by contract or by technical protection measures.
• addressing the issue of text mining and data indexing in the context of the barriers posed by the existing copyright regime.

Next to Windhoek, the largest city in Namibia where Deputy Minister of Justice, Hon Tommy Nambahu representing the minister, Hon Pendukeni Iivula-Itana, announced last week Namibia E-Laws, which forms part of a wider network of E-services such as the Namibian Courts Information System (NAMCIS) and the Justice Net (JustNet) which the ministry has already operationalised.

Namibian judges must work through the night: “Namibian E-Laws should make the work of the judiciary easier as all laws and relevant cases of the High and Supreme Courts will be available online 24/7.”
Chairman of the Law Reform and Development Commission, Ombudsman John Walters sees the E-Laws platform as a major step in consolidating, streamlining and updating Namibian legislation, parts of which date back to 1918. A separate project on Namibian customary law is already underway according to a report in The Namibian Law Journal – see page 109.

Finally in Freetown, in Sierra Leone, a sceptical Sonkita Conteh wonders whether the jurisprudential quality of the case law of Sierra Leone is really up to global scrutiny. The Sierra Leone Legal Information Institute is still only a stub page. It is funded by the Special Court for Sierra Leone which is the first international criminal tribunal to be funded entirely from voluntary contributions from governments. The Special Court has so far received contributions in cash and in kind from over 40 states, representing all geographic areas of the world. Canada, the Netherlands, Nigeria, the United Kingdom and the United States have provided strong support.

The existence of such projects now means that judicial decisions of countries are no longer restricted to their territories but can now be scrutinised by a global audience. Perceptions of a country and its systems may be positively or negatively influenced by the quality of information (legal, economic or political) that flows from it. Sierra Leone is still in the process of rebuilding its institutions and its image and every sector within the state has to make a contribution towards this end. The judiciary particularly has to be mindful of the quality of information (in the form of judgments and rulings) that emanate from it as its integrity both locally and internationally depends on it.

The whole world is watching.

This week, as Quebec moved towards paying for in vitro fertilization with the goal of reducing expensive and risky multiple births (which may or may not work), it was hard to find a singleton in the world of  biotech.

Twin diagnostics projects were born this week as Warnex, the Montreal Heart Institute & CEPMED announced a project to develop a new test for cardiovascular and metabolic diseases; and CIHR and Genome Canada are funding applications of next-generation DNA sequencing technologies to combat childhood diseases.

Vancouver-based Forbes Medi-Tech found itself with twin suitors, as Pharmachem expressed interest in topping a prior bid by MHT.

Finally, the Canadian industry as a whole got a mediocre second fiscal quarter to match 2010′s first mediocre quarter, though Wayne Schnarr found some optimism in recent regulatory successes.

Stay tuned for this week’s multitude of developments at The Cross-Border Biotech Blog and @crossborderbio on Twitter.

According to a press release issued by Access Copyright, “Canadian creators and educational publishers have won a six-year legal battle to receive reasonable compensation for the reproduction of copyright-protected teaching materials used in the classroom”. Access Copyright is the organization that collects and distributes revenue to authors and publishers from photocopy licenses negotiated with ministries of education, corporations and the like.

In 2009, the Copyright Board of Canada certified a tariff to compensate creators and publishers for the photocopying of their works in K – 12 Schools. The provincial Ministers of Education then asked the Federal Court to review the decision. Today we learned that the Federal Court of Appeal found that the Copyright Board’s decision was reasonable in light of the evidence before it.

In preparing for the Copyright Board hearing, Access Copyright had invested substantial time and resources in order to determine exactly what is being photocopied today by the primary, secondary and post-secondary education sector. The number of pages was staggering – as many as 250 million pages of text books and other materials are being copied every year. As a result, the Copyright Board doubled the amount previously charged ($2.57 vs $5.16 per student), and added a $40 million retroactive payment.

The game has just begun

While Access Copyright appears to have scored big time, it is still early in the game. The tariff is potentially a short term gain. Access Copyright is facing serious challenges on two fronts, one domestic and one international.

In Canada, the federal government has proposed changes to the Copyright Act that expand the scope of fair dealing to provide free access to much of the content that is covered by the new licensing tariff for education purposes. The gain just made could be wiped out when the agreement is up for renewal – Access Copyright cannot charge licensing fees to content that educational institutions have a right to access for free. Based on an amended Copyright Act, the Ministers of Education might ask for a review the new tariff before it is fully implemented.

In the U.S. and elsewhere, there is a growing belief that electronic rights should be administered directly by the rights-holder, without using third party intermediaries like Access Copyright. The future is in electronic delivery, something that Access Copyright has yet to master. Much, if not most, of the material that is being photocopied is American. At the moment, Access Copyright licenses this content in Canada through a combination of agreements with other rights licensing agencies and the Canadian divisions of global publishing companies.

Both of these challenges represent a major threat to Access Copyright which in the near future can expect to be hit hard on two fronts. Not a good sign for its future. For the moment, however, Access Copyright can enjoy the win.

trees — costs — forum — amenity — elevated

sellers — buyers — grow operation in the barn — marijuana grow operation — property

business — production — photographs — documents — income