A Reporter Shield Law for the Districts

This piece is based on my Parkland Institute report entitled, “Alberta’s Inadequate Legal Protection of Whistleblowers, Journalist Sources and Others Who Speak Out in the Public Interest.” The report is expected to be published online later this year.

A person who wants to blow the whistle on wrongdoing in our society has a lot to worry about. On the legal front, they may lose their job or be sued. Whistleblower protections in Canada, which extend only the public sector employment, are poor. Moreover, only three provinces have anti-SLAPP legislation. Most choose to feed a tip, leaked document, or their first hand information to a journalist on a confidential basis, i.e. the journalist will not disclose the identity of her source.

In some North American jurisdictions, this confidential relationship is protected through a journalist shield law. The general purpose of these laws is to encourage whistleblowers to come forward on the assurance that a court will not order their identity to be revealed. The competing public interest consideration in such laws is when – if at all – courts should reveal the identity of a source in the interests of furthering a criminal investigation, or in the civil context, to help a would-be plaintiff initiate a lawsuit.

At the federal (and criminal) level, the recently-enacted Journalistic Sources Protection Act (JSPA) uses an interest balancing approach with the onus the on Crown, or would-be plaintiff, to show that the public interest in revealing identity (or obtaining evidence) outweighs the chilling effects on sources coming forward. This should mean greater protection for journalist sources.

At common law, courts in this country have favored disclosure by making inferences about the possible importance of the evidence to a criminal investigation while downplaying the possible chilling effects on journalist sources. In this state of affairs, I am skeptical that reversing the onus will make much of a difference.

While the JSPA is not likely to be changed anytime soon, it is striking that no province in Canada has yet to enact a journalist shield law to protect sources against civil claims by plaintiffs. This is perturbing since the common law, as in Alberta,[1] does not necessarily provide any protection.

Most US states, by contrast, have some kind of journalist shield law. New York and California law, for example, absolutely protect journalists from revealing the identify of (or documents related to) a confidential informant.

Many other US states have a journalist shield law located somewhere between a straight up balancing approach (like in Canada where the source and/or her evidence is usually revealed) and absolute privilege which can never be penetrated.

An effective middle way would be some articulation of the test offered by Justice Stewart’s dissent in the US Supreme Court’s foundational case of Branzburg v. Hayes requiring a journalist to reveal her source only if there is:

• “…probable cause to believe that the newsman has information that is clearly relevant to a specific probable violation of the law;
• …the information cannot be obtained by alternative means; and
• [there is] a compelling overriding interest in the information.”

The first notable feature of this test is that it removes much of the speculation associated with a straight balancing test. The information sought must be “clearly relevant” to a “specific probable” violation of the law. Mere speculation that the information sought might assist law enforcement, or a civil plaintiff, in some vague way is not enough. Even then, privilege is to be maintained unless there is a “compelling overriding interest in the information.” This is not a mere balancing exercise but clearly favors confidentiality in all but the most exceptional circumstances.

According to Mathewson, this three-part test in one form or another has been codified into legislation in 32 US states and the District of Columbia.[2] But I think this better approach can be improved upon.

Abramowicz has convincingly argued that the three-part test, as currently formulated, looks only at the public interest in obtaining evidence. The newsgathering interest, on the other hand, is viewed as fixed. He advocates that this interest should be evaluated on the basis of whether proper journalistic procedures were followed in using a confidential source.

Proper journalistic standards includes only using confidential sources for “important” information, attempting to verify it elsewhere, ensuring the information is within the source’s direct knowledge, engaging in deliberation with an editor who knows the identity of the informant and has the newspaper’s credibility in mind, and transparency in explaining why confidentiality was granted to the informant.[3]

In Canada, these guidelines are followed by reputable institutional newsgatherers.[4] More to the point, any shield law should assess the journalistic standards used to check and verify information provided by an anonymous source as part of the inquiry.[5] The stronger the journalistic standards, the more difficult it should be to show that there is a compelling interest that the source, or her evidence, should be revealed.

__________________

[1] Moysa v. Alberta (Labour Relations Board) [1987] A.J. No. 418.

[2] Joe Mathewson The Supreme Court and the Press: The Indispensable Conflict (Northwestern University Press: Evanston 2011) at 109.

[3] David Abramowicz “Calculating the Public Interest in Protecting Journalists’ Confidential Sources” (2008) 108 Columbia Law Review 1949 at 1971-3.

[4] See e.g. CBC Journalistic Standards and Practics https://cbc.radio-anada.ca/en/vision/governance/journalistic-standards-and-practices , and the Globe and Mail editorial standards: https://www.theglobeandmail.com/about/editorial-code/

[5] It is worth noting that Abella J. (dissenting) in National Post suggests that courts should give deference to the professional judgement of ethical journalists. At para. 130: “Where, as here, the journalist has taken credible and reasonable steps to determine the authenticity and reliability of his source, one should respect his professional judgement and pause, it seems to me, before trespassing on the confidentiality which is the source of the relationship.”

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A Journalist Shield Law for the Provinces

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Union Misbehavior Can Loss Within Public Interest

Defamation cases, and the anti-SLAPP provisions under the Libel and Slander Act, continue to be interpreted in new and novel contexts.

In Nanda v. McEwan, the Divisional Court heard an appeal of a Small Claims Court motion in a defamation action, involving statements made during the election campaign for President of the Toronto Local of the Canadian Union of Postal Workers (“CUPW”). The statements were made in print, and in two invitation-only WhatsApp groups, and included the following statements about the plaintiff:

• he was a racist, a bigot, a sexist, a bully and a thief;
• he was corrupt;
• he had “rigged” a union election;
• he had stolen from membership and had abused his position of trust;
• he had used union funds to buy votes; and
• he had engaged in a criminal conspiracy.

The motion by the defendants sought to dismiss the claim under Rule 12.02 on the following bases:

a) The parties were required to arbitrate the dispute under the CUPW Constitution (the “Constitution”) before commencing a court action;
b) The plaintiff failed to give notice under the Act prior to commencing the Action; and
c) An anti-SLAPP dismissal based on s. 137.1 of the Courts of Justice Act.

The Deputy Judge concluded arbitration was not required, concluded based on Jansen-Ortho Inc. v. Amgen Canada Inc. that notice was required but not provided, and stayed the action without addressing the anti-SLAPP motion.

The Divisional Court reviewed the union’s constitution, which stated,

Article 8.01: Where two or more members wish to resolve conflict between them, they will have access to alternative conflict resolution processes.

Article 8.02: Penalties may be imposed on a member or officer of the Union or Local if he/she committed any of the following offences:

 Without limiting the general character of the aforesaid offences, the following action are among others regarded as offences:

 (5): Having published or circulated, either verbally or otherwise, false reports or misrepresentation concerning any member or officer of the Union in respect of any matter connected with the affairs of the Union or Local.

Article 8.39: A member, may not undertake legal procedures against …. its members … without having previously exhausted the possibilities afforded him/her under the present Constitution.

The Deputy Judge found that this language was not mandatory, and the Divisional Court did not find this to be a reviewable error. The purpose of these provisions were intended to assist members from avoiding disciplinary proceedings, not general arbitration, and was permissive in nature.

The Divisional Court referred to the John v. Ballingall (leave to appeal refused), where I was co-counsel, but distinguished it on the basis that it was an online newspaper. They concluded that the Deputy Judge’s reliance on Janssen-Ortho Inc. to include a broadcast over the Internet, as there were no radio stations or evaluation of whether it was from a station in Ontario. There was inadequate information to conclude whether the provisions of the Act applied here.

Because the appeal was allowed, counsel agreed to make submissions on the anti-SLAPP portion of the motion. The Divisional Court released a separate decision dealing with this relief. Relying on Veneruzzo v. Storey, the court indicated that s. 137.1(3) of the Courts of Justice Act required that the motion address an expression that relate to the public interest, prior to going to the merit analysis under 137.1(4).

The Divisional Court was therefore dealing with a unique and novel issue, “Can expressions between union members regarding a candidate during a local union election be considered a matter of public interest?”

Public interest in Grant v. Torstar Corp. was defined as inviting public attention, which the public had some substantial concern, or a function of the prominence of the person referred to in the communication. Further context was gained from1704604 Ontario Ltd. v. Pointes Protection Association, which emphasized the context of the expression,

[61] A matter of public interest must be distinguished from a matter about which the public is merely curious or has a prurient interest: Grant v. Torstar Corp., at paras. 102, 105. Public people are entitled to private lives. Expressions that relate to private matters are not converted into matters relating to the public interest merely because those expressions concern individuals in whom the public have an interest or involve topics that may titillate and entertain.

[62] An expression can relate to a matter of public interest without engaging the interest of the entire community, or even a substantial part of the community. It is enough that some segment of the community would have a genuine interest in the subject matter of the expression: Grant v. Torstar Corp., at paras. 102 and 105.

[63] Public interest does not turn on the size of the audience. Especially in today’s world, communications on private matters can find very large audiences quickly. On the other hand, statements between two people can relate to matters that have a strong public interest component.

[emphasis added by the court]

The plaintiff claimed that the election of a local union officer was a private matter, which the Divisional Court agreed with,

[37] The election of an official to a local union is NOT a matter of public interest caught by s. 137.1 of the Act. The expression may be of interest to the approximately 200 members of the local union, but NOT to the public generally or a segment of the public. In my view, the elections of the local union is a private matter.

[38] This is not similar to the election of a public official such as a councillor. The public interest in such elections is obvious to the persons entitled to vote and others who may be effected by the public figure, if elected. See Armstrong v. Corus Entertainment Inc., 2018 ONCA 689. The same could be said for appointments of persons to public positions. There are many other not “public” election/appointments that engage the public interest such as environmental, planning, the arts and other categories where the Defendant could show that a general or specific segment of the public has an interest in the subject matter and that freedom of expression on that subject matter should be encouraged.

[39] In this case, focusing on elections, there are many elections which take place in private institutions such as church elections, management/director elections in companies, elections in community and charitable organizations, businesses such as law firm management and so on. Such elections are not matters of public interest. These elections involve highly local, limited and private interests, being those within the organizations. I see no distinction between such elections and elections in local unions.

[40] The suggestion that it is important to uphold freedom of expression in “democratic elections” misses the point – these private organizations set the rules who can vote, how they can vote and so on. That is for the private organization to decide. The results impact on the private organization and not the public.

Consequently, the anti-SLAPP motion was dismissed.

The matter was further appealed to the Court of Appeal, who recently released their decision, concluding that the matter could indeed involve the public interest,

[41] In my view, expressions concerning racism, sexism, corruption, abuse of union funds, and misconduct by a candidate for President of the Toronto Local of a Canadian public sector union relate to a matter of public interest. In the words of McLachlin C.J.C. in Torstar, at para. 102, “[i]t is enough that some segment of the community would have a genuine interest in receiving information on the subject”: see also Torstar, at para. 105. Members of the Toronto Local, beyond the recipients of the posters and WhatsApp messages, would clearly have a genuine interest in the expressions in the context of an election campaign. But the scope of public interest would extend even further, to the broader community served by members of CUPW and the public sector.

…

[47] In summary, the motion judge erred in this case by focusing on the nature of the expressions and failing to consider their context, in defining the group interested in the expressions too narrowly, and in treating the “private” context as determinative. In my view, allegations of racism, sexism, corruption, and misconduct in the context of the election of the President of a major local of an important public sector union is a matter of public interest. The appellants’ motion passed the public interest threshold. This requires this court to conduct the additional analysis under s. 137.1(4).

The Court of Appeal concurred that the Pointes decision was the guiding authority, but disagreed that it should be applied in this manner. Instead of focusing on the manner of expression and the motives of the defendants, or the size of the audience, rather than considering what the expression was about.

The two decisions released with Pointes, in Armstrong v. Corus Entertainment Inc. and Able Translations Ltd. v. Express International Translations Inc., both dealt with expressions made in the context of elections. Fitness for office during an ongoing election campaign qualifies as expression relating to a matter of public interest.

The Court of Appeal also relied on LIUNA Local 183 v. Castellan, where an anti-SLAPP motion was dismissed and summary judgement granted, where a former member of the union made disparaging statements about the union and their counsel online. Even where the posts contained derogatory, malicious, and false statements, they could still qualify as relating to a matter of public interest, which was explained as follows by the motion’s judge,

[40] …While the posts may be understood as the public airing of very personal grievances, they may also be construed as addressing the Union’s governance and the suitability of some of the plaintiffs to act as union representatives. The fact that [the defendant] is no longer a member of that union does not bring his comments regarding the Union outside the scope of s. 137.1. I accept [the defendant]’s submission that this characterization of the expression has significance for members of Local 183 as well as the community at large. This is sufficient to ground a finding that [the defendant] has met his onus under s. 137.1(3).

Despite meeting the public interest, the motion judge in LIUNA dismissed the anti-SLAPP motion, and granted summary judgment and injunctive relief.

The Court of Appeal continued in Nanda to a merits analysis under 137.1(4), concluding it met the threshold for reasonable grounds of substantial merit, and that there was a public interest in permitting the action to proceed.

The Court of Appeal also rejected the defendant’s submissions around the protections around political speech, focusing on the motion judge’s comments about the allegedly defamatory statements:

These types of Statements do not encourage debate on public matters but are allegedly defamatory statements made for the sole purpose of attacking and maligning the character of an individual without a meaningful connection with the alleged public interest or to encourage debate on matters of public interest.

Put another way, the statements by the Defendants in this case, appear to be vulgar and vitriolic statements meant to denigrate and defame the character of the Plaintiff to sway other voters not to vote for the Plaintiff. These statements were not intended to provide information or the exchange of opinion, assert facts into the public debate (even if it were a matter of public interest) or to engage in a discussion of a person’s qualifications for office. A key example is the statement that the Plaintiff engaged in criminal conduct.

The Court of Appeal interpreted this as obiter int he context of applying the relevant balancing exercise under s. 137.1(4)(b), where the quality of expression and motivation of the speaker are relevant factors for measuring the public interest necessary to protect the expression.

Although this decision may appear to open up these types of defamatory statements to anti-SLAPP motions, this would only apply to the threshold test under s. 137.1(3), establishing that these expressions are related to the public interest. The merits-based analysis, including the public interest hurdle in s. 137.1(4), are still unlikely to allow these motions to succeed, where there is still substantial merit, and the harm suffered is sufficiently serious.

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Union Misconduct Can Fall Within Public Interest

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Digitizing Legislation

One of the first instances of recorded law we are aware of is the Code of Hammurabi. It was literally etched in stone. If you read about it, what strikes you is how little has changed about how we record laws in roughly 3700 years. We learned to put laws on parchment. Then paper. Then typesetting, and photocopying. Eventually, we began to digitize images of the pieces of paper on which the law was written. But all of these were just different ways of recording the etchings in the stone so people could use them.

While significant progress has been made on digitizing documents, allowing us to create and change and analyse them, relatively little has been accomplished in the realm of digitizing laws so that computers can use them.

Imagine that you have a document that sets out the rules of rock, paper, scissors. A computer can easily help you change the font, print it, export it in various formats, etc. But a computer cannot, on the basis of that document, easily play a game, or tell you which player won a game that you describe to it.

At least, not yet.

Introducing the SMU Centre for Computational Law

I recently began working on a contract basis as a researcher in symbolic artificial intelligence with Singapore Management University’s Centre for Computational Law. This brand-new Centre is hosted at the SMU School of Law, funded by Singapore’s National Research Foundation and Infocomm Media Development Authority, and led by Assistant Professor of Law and Information Systems, Lim How Khang.

The Centre’s first five-year project is a Research Programme in Computational Law that is working to build an open source programming language for law. The research is led by Principal Investigator Wong Meng Weng and Industry Director Alexis Chung, who have been working for several years as principals for the computational law startup Legalese.

The Centre is unique in at least two significant ways. It is interdisciplinary, and it is committed to open source technology.

Interdisciplinarity

The programme is still in the process of recruiting and on-boarding staff, a task that has been made more difficult by the travel restrictions imposed by Covid-19. But already there are technology entrepreneurs, lawyers, law professors, computer science professors, programmers, and linguists, and most of us fall into more than one of those categories. The project is not designed to conform to the norms of a given academic discipline. It approaches real world use-cases from different perspectives, trying things in public, making mistakes, and learning fast by doing.

Open Source

The research programme aims to create an open source programming language for law. It names access to justice and efficient regulatory services as two of the potential benefits. Both of those objectives make the Centre’s commitment to open source software critical. In the access to justice realm, open source software reduces the cost of automating. And in the administrative law realm, open source software provides the transparency and accountability that is critical for use by public bodies in a world increasingly and justifiably skeptical of automated public services.

The programme also hopes to benefit from synergy with legal open source tools and communities that already exist, such as the EU’s LEOS (Legislative Editing Open Software), or Docassemble, a tool for online interviews and automated document generation.

Docassemble recently held its third annual user converence (virtually, due to the pandemic), and the Centre was there to contribute. The programme’s first published open source contribution is docassemble-DADataType. DADataType is an expansion for Docassemble that allows for rapid prototyping of online interviews on the basis of nothing more than the name and datatype (e.g. “age, which is a number”) of the information that needs to be collected.

This tool will allow the programme (and anyone else who cares to try) to instantly generate interactive web interviews that can collect information, send that information to automated legal reasoners, provide useful answers, and explain those answers, all on the basis of little more than the encoded rules themselves.

The programme is also currently working on an open source tool called dmnmd (which stands for Decision Modelling Notation in Markdown) that will allow people to write DMN decision table-style “rules” inside editors that use the popular “markdown” text formatting language.

What is a Programming Language for Law?

Whenever you use a computer to do something, like write a Microsoft Word document, there are various languages being used to represent information in a way that is helpful. For example, the .docx at the end of your Word files refers to the variant of XML (eXtensible Markup Language) that Microsoft Word uses to save your document. That is a programming language. Then, when you send the document to your printer, it is converted into a language called PostScript, which is used to tell printers how to generate documents. PostScript is a programming language. When you export it to a PDF, you are translating the document from DOCX to the “Portable Document Format,” which is another programming language.

Do we need programming languages for writing and printing and sharing documents? Yes, lots of them. But we don’t usually directly use any of them. We use software that uses them. And they generally aren’t thought of as programming languages, because they are not designed with human users in mind, and they can’t be used to do anything other than the task for which they were designed. But that doesn’t make them not programming languages. It just makes them “domain specific.”

In the same way that these “domain specific” programming languages make it easier to record the structure of documents to allow computers to do things like create, print, and share documents, we need domain specific programming languages that make it easier to record legislation, regulation, contracts, and other sorts of rules in a way that will allow computers to do things like ask users for relevant information, answer and explain the answers to legal questions, and analyse rules to see if they work properly or conflict with other rules.

This has two major benefits.

Making Legal Apps Better

Legal rules have features that other sorts of rules don’t have. First, they are normative. They do not describe what will happen, every single time. Instead, they describe what was supposed to happen, and perhaps what happens when that expectation is violated. So they make use of counterfactuals, exceptions, and prescriptive concepts like obligations, prohibitions, penalties, and rights.

It’s possible to express those sorts of ideas in a programming language not built specifically for it, but it’s not easy. And then, inevitably, the rules change. And however difficult it was to encode your legal rules, it becomes exponentially more difficult to maintain them.

So programming languages for law simplify the process of creating legal apps, and improve their quality. It is hoped a higher quantity and quality of legal apps will have benefits for access to justice and the efficient administration of public law.

Making Laws Better

But surprisingly, the benefits in quality go in both directions. The Rules as Code movement, which I have written about on Slaw before, seeks to encode legislation and regulation at the time of drafting, so the encoded version of the rules can improve the quality of the authoritative legal text itself, and make it easier to automate those rules with confidence because the rules are clearer.

Past, Present and Future

The use of programming languages to represent legal rules is not a new idea, by a long shot. Richard Susskind wrote his PhD thesis and first book on the topic in the mid-80s. The idea has a long history. But the Centre and the Programme seem to arrive at a moment of resurgence of interest in encoding legal rules.

The rise of blockchain technology has led to a renewed interest in “smart contracts,” which require exactly these sorts of programming languages (e.g. Accord Project). The OECD’s Observatory for Public Sector Innovation is working on a draft primer on Rules as Code. The draft document notes that the ideal programming languages for Rules as Code do not yet exist, and encourages research. Banking associations, struggling to keep pace with the rate of change in their regulatory environment, have been calling for the encoding of regulatory requirements in places like the UK, the EU, and Australia. And the Australian Prime Minister in the last year has touted the benefits of encoding legislation at its source.

Closer to home in Canada, the Canadian Community of Federal Regulators had a Rules as Code session at the last FWD50 public sector technology conference in Ottawa. The Canadian Institute for Administrative Justice will have a panel on Rules as Code at their next legislative drafting conference. And Service Canada, in what strikes me as something of a coup, has recruited one of the world’s foremost experts in Rules as Code in public administration, Pia Andrews.

There is a lot of work to be done, and it will take a long time. The tools we need don’t exist yet, and we don’t yet know what would make them ideal. But the long term goal is to give legislative drafters, lawyers, legal services providers, courts, and other justice workers tools that are as indispensable, powerful, and easy to use and learn as word processors have become.

The research programme is also currently seeking partners who have use cases in the realms of expert systems, automated document assembly, rules as code, and smart contracts.

If you are interested in the details, the Centre has a GitHub account where all of their software is published.

If you are interested in following along with my work with the Centre, I will be posting more frequently on my Medium page, or you can follow me on Twitter.

The research programme is supported by the National Research Foundation, Singapore under its Industry Alignment Fund – Pre-positioning (IAF-PP) Funding Initiative. Any opinions, findings and conclusions or recommendations expressed in this material are those of the author(s) and do not reflect the views of National Research Foundation, Singapore.

[Neinstein 2]

Digitizing Law

[Neinstein Lawyer 3]

What I Learnt more about Advancement From Understanding Just How to Code

I recently completed Harvard’s CS50: Introduction to Computer Science, offered online though edX. Given my role as a Legal Tech and Innovation Specialist, I work with a lot of technology. Gaining a deeper understanding of computer science seemed like an enjoyable side-project. I was partially correct.

(Sample code from one of my projects)

While learning about concepts like data structures, memory, and arrays is incredibly helpful, I was not prepared for how challenging it would be to apply these concepts into workable programs. Things that programmers can do without effort took me hours: iterating across a linked list of nodes, querying a SQL database from within a Python program, generating HTML dynamically.

Yet beyond the content itself, the course helped me notice broader lessons that apply to my work as a legal innovator. A software program, after all, is an attempt to create a better way to do something. Programmers regularly tackle difficult problems that do not have clear answers. With this in mind, it makes sense that I could learn a few things about innovation from how they approach their work.

Collaboration is encouraged

I was surprised by how often the instructors encouraged the students to look for answers outside of the course material. At first, I was concerned that viewing others’ code and searching for answers on forums might be cheating. Thankfully, a developer friend helped me realize that this sort of collaboration is fundamental to becoming a good programmer.

It is not uncommon to start a new program or function by copying and pasting pre-existing code – my own or someone else’s. Being able to leverage other code for one’s starting point is a skill in itself. It requires understanding my project and current code well enough to zero in on the issue (e.g. searching a full solution like “DNA analysis algorithm” would not be that useful). I had to precisely articulate my problem if I had any hope of finding an answer online (e.g. “python csv.DictReader”). And once I found a useful snippet, I then needed to understand that code and how it fit into the broader context of my situation. Copying and pasting someone else’s code is not necessarily cheating, it is efficient.

Once I got used to it, the process of finding precedent code that I would apply to my current issue began to feel strangely familiar to how legal research often leverages the firm’s institutional knowledge. As anyone familiar with Knowledge Management knows: you only need to invent the wheel once. And like legal work, starting with a precedent does not lessen the value of the work required to apply that information to solving one’s specific problem.

As a legal innovator, I am often faced with situations that are new to me but probably not new to others. Instead of searching for a legal precedent, though, I can speak to those in related roles – account executives, IT professionals, or entrepreneurs – to see if their experiences could apply to my context. If others have already solved problems, I want to reuse that information as much as I can.

The deeper you understand something, the more possibilities open up

The computer science course began with learning the nuts and bolts of how a computer allocates memory using 1s and 0s. While this seemed interesting in theory, I was doubtful that I would actually need to apply this information.

That doubt changed when an assignment asked us to recover deleted files from a camera’s memory card. If you had asked me before the course, I would have told you that deleting files from a memory card means only one thing: the files are no more. But I now understood that file deletion is often the mere freeing up of memory so it can be reassigned – not overwriting it. Knowing this, I built a program to scan through a memory card for certain “file signatures” and recover once deleted files. Going that little bit further “under the hood” of computers opened up a great deal more possibilities.

Becoming deeply knowledgeable about legal tech is more than answering users’ questions about how to use a piece of software. Obviously, it is crucial that I master the software the firm uses so I can quickly interpret someone’s concern and find a solution or a workaround. But more than that, understanding the underlying technologies allows me to make more informed decisions about technology – not just the benefits and risks generally, but which of those risks are indeed probable and which are specious or outdated. For example, while there are some concerns about cloud-based software, traditional concerns about security no longer hold much water.

As change agents, we must have “one foot in each of two worlds”. As an innovator, the more knowledgeable I am about both the technology and the related legal issues the better I can act as a bridge between the firm’s tech and legal experts. The stronger an understanding one builds of each side, the more effective one can be.

The freedom of constraint

I was surprised by how much time I spent writing in constraints on user behavior. Basic programs, for example, might force users provide a single type of input like a positive integer. Without these constraints a program would be vulnerable to crashing whenever a user inputted something unaccounted for by the code. Thus, a key part of learning how to code is learning how to constrain your user’s behavior.

If even basic software constrains a user’s options, you can imagine that complex legal software must necessarily do the same in myriad ways if it is to be useful. Complaints such as “that’s not how I do it” can be a hurdle to adoption, but it would often be worse if the software had fewer constraints. Flexibility comes at a cost: increasing features and functions introduces new complexity. Having the discipline to perform low-value tasks in the way best suited for a computer can free one up to focus on higher-value tasks.

While I accept sifting through some highly-customizable tools with no clear workflow as part of my job, I know that most lawyers and staff just want a simple explanation of how to use the software – even if that means leaving out some nuances for alternative approaches.

Build competence through careful onboarding

Most code does not work on the first try. Trial-and-error is built into the development process – but it is insulated from the end client. You have to give someone a chance to make mistakes before they feel comfortable.

Lawyers are correctly risk averse about testing out a tool with a client on a matter before they feel competent with it. If law firms are truly going to take advantage of the opportunities that new innovations promise, they must figure out how lawyers and staff can go through the unavoidable learning process before applying it to a client matter. It is a tricky problem that requires active support from leadership. Without a safe and reliable onboarding process, the ability to scale usage of a tool – and its corresponding benefits – is inherently limited.

One way forward might be to uncouple competence from whether something is an external success or failure. A software product or feature can be poorly-received by the market and still be well-built by the programmers. This separation of product success and user competence is what Harvard Professor Gary Pisano identifies as one of the paradoxes of truly innovative companies: “tolerance for failure but not for incompetence.”

How do we evaluate the quality of legal services? For example, if we compare two proposed contracts for a commercial agreement, how do we determine which contract is of higher quality? Unlike code, where feedback can be immediate and binary, law struggles to provide standard measures for a lawyer’s deliverables. Any articling student will undoubtedly relate to the feeling of submitting a research memo while full of concern about whether it meets a lawyer’s vague expectations. If lawyers have more objective ground to stand on regarding the quality of their work, they might be more open to experimenting with supplemental technology.

Everything is harder than you think

After every lecture I felt like I had a strong understanding of the concepts discussed. Given the lectures were all recordings, I could even re-watch sections to ensure I understood everything. Making it all work together in the real world, however, was significantly more difficult than anticipated. How do I know if I should use a while-loop instead of a for-loop? What condition do I use? Can I nest an if/then statement into the while-loop? Can I nest a for-loop inside that? When do I create a dictionary, a list, or a list of dictionaries? Week after week, the humbling questions went on.

When I first started working as a legal innovator, the assumption seemed a given: there is amazing technology out there and lawyers just don’t “get it”. While there is amazing technology out there, I now realize things are more complicated. What about cybersecurity concerns? We want a tool in this category, but is this the “right” one? How does increasing adoption of technology lead to a more prosperous law firm? In both programming and legal innovation I have experienced the Dunning-Kruger effect more times than I can count.

Conclusion

While I don’t think it is worth my time to become the best programmer I can be, I am more curious than ever about what lessons from other disciplines I can apply to my work. The above lessons are not new, but discovering how other they work in fields leads to a deeper understanding. For instance, “T-shaped” professionals, now a hot buzzword in legal circles, derives from computer science circa 1991. Who knows what additional lessons are out there in other fields?

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What I Learned About Innovation From Learning How to Code

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The Toronto Mask by-Law: Velour Legislation in a Velour Handwear cover?

Laws serve several purposes. In broad terms, they reflect government policy and prescribe the behaviour required to achieve it. More specifically, they tell us what we cannot do, unless we want to risk penalty, whether criminal, civil or regulatory; they identify (and these are not all laws) the moral attributes of a society; they serve to control, by framing the parameters of permissible activity; they have the goal of changing behaviour. Generally, laws are successful when they are enforced effectively and fairly, although neither may be the case for a particular law. And they tend to work when people think something bad will happen to them if they disobey them. And then we have the City of Toronto’s new mask by-law, coming into force today, which seeks to direct behaviour without actual enforcement (or so the mayor tells us because it does in fact include enforcement provisions). Given the promised lack of enforcement, does the by-law do any more than a strong recommendation would do?

City of Toronto By-law 541-2020, stated simply, is straightforward: members of the public (and staff of affected enterprises) are to wear a mask or other cloth face covering (“a mask”) inside public places (face shields are not considered equivalent). The onus is on management of the location to post a mask-wearing policy set out in the by-law and to ensure that people neither enter nor remain inside unless they are wearing a mask.

The public places covered by the by-law (pun intended) are the following: stores or places offering services, including malls; places of worship; community centres (including indoor recreational facilities); libraries, galleries and similar places; community agencies providing services to the public; event spaces; places where open houses or real estate presentations are made; the common areas of hotels and other short-term rentals; and entertainment facilities.

Certain indoor locations are excluded: schools, post-secondary institutions and child care facilities; transportation; and hospitals and other health facilities, including the “offices of regulated health
professionals”. (The colleges governing regulated health professionals have issued their own guidelines; the College of Optometrists of Ontario, for example, expects patients will wear masks and if one is not available, it may be necessary to reschedule the appointment.) (See a chart explaining when a mask is required and when not for sample establishments.)

Although the Toronto by-law says that “no member of the public” shall enter a premises without wearing a mask, and staff are to wear masks, there are some “compulsory” exceptions, that is, people who are not required to wear masks: children under two years of age (who should not wear a mask); individuals whose medical conditions makes it difficult to wear a mask; individuals who cannot place or remove a mask without help; employees in their own areas where the public is not allowed or are behind a physical barrier; and those who would be accommodated under the Ontario Human Rights Code (HRC). Furthermore, people who are excluded from having to wear a mask do not have to show proof of the reason (see COVID-19 Guidance re the wearing of masks). (Also see here for exemptions.)

The City’s mask by-law should be viewed in conjunction with the TTC mask by-law and the Go train policy.

The TTC by-law, has the same exemptions as the City’s by-law, although rather than simply excluding persons whom the HRC requires to be accommodated, the TTC by-law says, “Additional accommodations in accordance with the Ontario Human Rights Code will also be considered” (emphasis added). (I note that there does not appear to be a specific TTC by-law about wearing masks; it has been developed under By-law No. 1 s. 3.13(a), which reads: “No person, unless otherwise authorized, shall do any act in contravention of instructions, a) on any sign erected on TTC property”.) Like the City’s by-law, it will not be enforced, since “[n]ot all medical or other conditions are visible” and people who are not wearing a mask will still be allowed to board (although contraventions may be subject to a set fine of $195 (for a total of $235). Despite the TTC’s statement that the mask requirement would not be enforced, according to a report in The Star, the mayor indicated repeat offenders might be ticketed: “’We’re not going to be out blitzing and enforcing, … Does that mean no one will ever be given a ticket? Of course it doesn’t.’”

Go asks riders to wear masks, but also says, “we ask for your understanding as not everyone can wear face coverings for health or [unspecified] personal reasons” (see here).

The bottom line on “mandatory” masks: technically mandated inside most premises in Toronto that are accessible to the public and on the TTC, but not on the Go train. However, if you do not wear one, there will be no repercussions under the by-laws (at least not now); people who have a reason not to wear a mask are not required to wear one, but if people simply don’t want to wear one, they will not have to, because there will be no need to provide any evidence of a reason.

This appears to make the by-laws little different from the strong recommendation from the provincial medical officer of health to, for example, maintain physical distance when out for a walk (this being separate from limitations on group size). Generally speaking, this has been effective up to now, when most people, other than essential workers, were staying at home most of the time; we’ll see whether this is still the case as other aspects of society “normalize”.

Are there benefits to a mandatory by-law when everyone is on notice that it won’t be enforced? If the city and TTC by-laws’ persuasive power is insufficient, they can be enforced, of course. However, it is clear that enforcing them will pose difficulties, because non-compliance by people who simply don’t want to wear a mask is so easy. This does not mean that there are not people who have difficulty wearing a mask or, for example, need to lip read and therefore need someone else to remove their mask, but that there will be people who simply do not want to wear one. Those ostensibly “enforcing” the by-laws will not be able to go beyond people’s claims that they cannot wear a mask for one reason or another.

Part of the difficulty is that advice about wearing masks has made a 180 degree turn over the pandemic. While now they are treated as lifesavers for those wearing them and others with whom they come into contact, this was not always the case. In fact, people were discouraged from wearing masks because there were concerns about ensuring enough masks for health care workers, that people would be more careless if they thought they were protected and that people would touch their faces more. (See here, from January or here, from April.) The message then focused on protecting others. Advice in Ontario as of April 10, 2020 suggested there was no advantage to wearing a mask if you didn’t have symptoms of COVID-19 or weren’t caring with someone with COVID-19 (although it might protect others). A Public Health Ontario flyer stated, “Unless you have symptoms of COVID-19, there is no clear evidence that wearing a mask will protect you from the virus, however wearing a mask may help protect others around you if you are sick.”

And now masks are ostensibly mandatory in certain contexts, some of which take a stronger line than others (for example, dentists or optometrists). Based on personal observation, it seems that over the duration of the pandemic, more and people have started wearing masks. Initially, for example, in grocery stores, people wearing masks were the exception, perhaps even perceived as “overdoing it”; now people who don’t wear masks are noticeable. Will more people wear masks, when they might not otherwise, because of the Toronto by-law? One might think that anyone willing to wear a mask is doing so in indoor places by now. On the other hand, a “mandatory” requirement may constitute an additional nudge.

A recent poll by Abacus Data found that most people are in favour of mandatory requirements to wear masks and that a relative few are actually opposed. The percentage of people saying they wear a mask all the time now varies across the country (ranging from 23% in Saskatchewan and Manitoba to 69% in Ontario, although combined with those wearing a mask half the time or less, these figures are 61% and 86%, respectively). But even in provinces where over a third of people never wear a mask, the majority would either support or go along with a mandatory requirement to do so: thus 86% in Saskatchewan and Manitoba would support or accept the requirement (compared to 91% in Ontario). Relevant to the City of Toronto and TTC mask by-laws, 93% of people in the Greater Toronto area would support or go along with mandatory requirements.

Thus the by-laws come at a time when it appears there may be little opposition and that reinforcing the wearing of masks, particularly for those for whom it has not already become a habit in certain contexts, such as in stores or on the subway, may benefit from a mechanism that looks like a requirement rather than advice. Although the City of Toronto and the TTC by-law are relatively easy to circumvent for those who really wish to do so (quite apart from those who genuinely fit the exceptions), there may be advantages to enacting a by-law rather than issuing a very strong recommendation.

Those responsible for indoor locations will now be able to post a policy that says people must wear masks. Some people may treat the word “mandatory” seriously and believe they have no choice. Because it is not likely that people will be refused entry if they don’t wear a mask, the opportunity for people to build an anti-mask movement, as we have seen in the United States, or the temptation to deliberately flout a law because it won’t be enforced should not arise. However, even those who have not been wearing masks may be more likely to do so and those who do not (purely out of personal preference) may feel peer pressure to wear them. Furthermore, it may be that mask-wearers, even somewhat reluctant ones, may accept that it isn’t possible to tell why their fellow shoppers aren’t wearing a mask. And while these by-laws are not being enforced now, their terms contemplate that they may be if the soft approach doesn’t work.

Health experts now tell us that masks are a “very good thing”, a protection against COVID-19, and an effective substitute — to a point — for physical distancing when the latter is not possible. These mask by-laws are a perfect example of laws, the main objects of which are to identify “appropriate” behaviour and to persuade people by making a strong statement — in the form of an actual law — that they should conduct themselves accordingly. This is consistent with the stance that the preferable way to deal with the pandemic is to engage with community and to see ourselves as responsible not only for ourselves, but for others. But the apparent velvet law in the velvet glove can be transformed quickly on its own terms into an iron fist that enforces mask-wearing if the community approach doesn’t work. And then the issue will be the extent to which it is possible to enforce a by-law that recognizes that genuine objectors may be difficult to discern and differentiate from those who simply don’t want to wear a mask or object to being told to do so.

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Unidentified Unknowns

The world continues to change greatly and, whatever the future brings and despite any wilful and devious political and corporate hyperbole that abounds on these matters, it may well be that some aspects of the past will disappear or will alter to an extent. In the case of much that has been witnessed of late, we might certainly hope so. Almost without doubt, the pandemic is likely to create beneficial modernisation and efficiencies that can be enjoyed by the use of technology that was previously little-known, avoided or unavailable. We have indeed been forced lately to question much that has been familiar, perhaps because many of us have spent too much time in lockdown. While we certainly do not know exactly where we are going, it is unlikely that we are returning fully and exactly to where we were.

Reflecting on legal information creation, manipulation, curation and publishing, a lesson reinforced has been that, clearly, it is not and was not essential. Weekly community applauding the work of its heroes and even for its customer bases would hardly have been appropriate. This serves to remind one not to be obsessive about that which is not too important and to recognise the difference between life-creating and life-saving activities and sometimes, just grubby ways of making money and paying the bills.

There are those who will purport to identify opportunity in everything. Among them are the seers and gurus who will use as yet incomplete outcomes to try and verify their predictions from the past; the ones which were never accompanied by time-lines, costings and other details and which, like every other prediction, were bound to happen at some time and in some way; best evidence is that they rarely know better than the rest of us but, like most of us, they have a living to make. In “Looking Back on the Future”, industry commentator, David Worlock, asks “What happens when the list of changes you have predicted for the next decade largely take place inside a fortnight?”, seeking to unpick what might be temporary change and what might endure.

Managing and developing any endeavour, for the long-term and with success, is not just about watching for latest trends and fashions and instantly trying to exploit them. Recent times have highlighted that adaptability and ability to alter existing focus and preconceptions are obligatory. There may also be a time to make money and a time to use capabilities for societal benefit, without disguising the former under the cloak of the caring words of the latter. This would include the many examples in which crude commercial advertising masquerades in articles and suchlike as serious and honest information content. Ideally, calm reflection, honesty and strategy rather than panic would seem to be the correct approach; cries that “nothing will ever be the same” are likely to be, to a great extent, devious, hysterical and ill-informed. For the most part, we can eventually put people, places, things, experiences and events behind us and move on.

As I see it, one “known known” is the skill which the more competent law publishers have acquired to be able to determine very quickly and without excessive analysis when, in overall terms, they are being successful. This might be measured primarily through customer satisfaction, product and service quality and profitability. Choosing the right publications, electronic services and authors is not an instinctive talent but requires substantial insight, expertise, training and judgment to make it look easy and to win. Finding the right niches and authors in the market, working successfully with institutional partners, engaging with and being part of markets and delivering optimum quality is what, in my view, makes for a great professional publisher. Publishers can be infuriating though, when their systems and processes, or perhaps the lack of them, cause unnecessary delays in making important decisions, such as whether or not to commit to a project. As with justice, publishing delayed can be publishing denied, and similarly, often most unfairly and unreasonably. Of course, there is a time to publish and a time not to do so, for example, depending on the timing and schedules of legislative or other legal developments, budgeting tactics and strategies or for competitive reasons, but lack of efficiency does not fall into such categories.

Another is that English-language law publishing, whether it is serving Common Law or Civil Law markets is hardly novel, is not at all glamourous for those working in it and does not even produce nowadays the levels of financial reward that it did for market leaders in the past. So, why bother, especially as the need for it diminishes? The higher-tech world of artificial intelligence to conduct legal and other research certainly has its appeal and points the way to the future, without doubt. However, the satisfaction of finding and getting to know the best authors and editors in legal practice and in the academic world, working out ideas with them and collaborating to produce world-class publications of quality and significance, that genuinely add to scholarship and the development of the legal system, is as good a way as any, if rarely life-saving, to conduct a career. From the author’s and editor’s point of view, it is not dissimilar. Their challenges require a great deal of work, time and intellectual rigour to deliver the best in legal and professional publishing, the financial rewards are usually not significant, and the career benefits are sometimes nebulous. At the same time, for a relatively small and select number, there is a deep-seated need to take on the role of legal author, to explain, analyse and assume the status of a thought-leader in that environment. It is difficult to explain and often to understand why they do it but publishers should be extremely indebted to those who do so. Stating the obvious, the publisher who doesn’t value authorship would be advised to cut and run. At the same time, some authors can be horrendous, for their failure to meet agreed schedules and general procrastination, their frequent egoism, fetishism and self-interest in engaging with the process and their occasional inclination to want to share their personal problems with their publisher, all of which has to be (or carry the pretence of being) understood, supported and accommodated.

Life would be easier and simpler if there were little to it and it could all be overtaken by, for example, blogging. However, I remain unconvinced about the idea that legal blogging and associated software can be equated to “traditional law publishing”, or rather, what I would describe as “law publishing”. That trade’s primary functions are in providing learned and practical books, periodicals, integrated online content, solutions and documentation. It does not sidestep but, rather, embraces expert and in-depth cross-border judicial analysis, peer review, reference to and understanding of a range of academic and professional disciplines in such fields as tax, finance, accounting, economics, psychology, history, philosophy, sociology and of course, jurisprudence.

Whether or not legal and professional information publishing thrives, in the forms that we understand them today and in the tradition that has evolved over some hundreds of years, remains to be seen, though, personally, I doubt it. Wolters Kluwer’s recent strategic partnership with James Publishing, for example, may serve to highlight existing weaknesses and the need to combine in order to compete; its partnership with the Chartered Institute of Arbitrators looks quaintly old-fashioned. At the same time, as market conditions harden, it is hardly unsurprising to see, for example, Thomson Reuters sue a small competitor, claiming theft of proprietary data. As House of Butter comments, “Both TR & LN will fight tooth and nail to protect what they see to be their domain but in the end time and technology will render them redundant”; Ross is vigorously defending its own position. Probably, as ever, legal publishing will continue to change with the opportunities that technology offers and as the requirements of customers reflect the directions of legal and professional practice. That said, the suspicion and hope of law publishers might be that society, for so long as that word has meaning, will continue to have laws that keep developing and which, for the most part, are good ones, together with lawyers and other professionally qualified advisers whose jobs are to administer, interpret and improve them. Those customers tend to be serious and thoughtful people and good publishers should value, respect and understand how they think and operate. Perhaps only if that is the case, however different their own businesses might look, some great law publishing may have a role of sorts, at least for a while. If only they could be bulwarks against ever more appalling and corrupt legal systems.

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Unknown Unknowns

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Should We Defund the Civil Rules Committee in Ontario?

Past Ontario Bar Association president David Sterns argues that we should defund the Ontario Civil Rules Committee. In its place we should involve new voices and take an inter-disciplinary approach to building the committee. I agree.

We need to either supplement or change the Civil Rules Committee. We must look towards engaging new people. Let’s not just tinker around the edges. Let’s engage new voices. We need new perspectives. We need to hear what lay people think. We need to hear the insight of experienced practitioners and judges. We need to hear what articling students and law students think. We need to hear what young lawyers think. We need to hear what program developers think.

I am hopeful that we are on the path to great change. Recently, the Superior Court of Justice released a Notice to the Profession (click here). The Notice shows movement towards change in our courts.

For example, pre-trial records are now capped at 10 pages. No voluminous briefs are allowed. Voluminous records such as pleadings, treatment notes, accident benefit files, and so on, are not to be filed with the court by hyperlink, a dropbox, or otherwise. Parties may hyperlink to expert reports. The briefs are to be delivered electronically.

Additionally, motions are to be heard in writing as the default. Hopefully, hearing motions in writing will nudge litigants away from old school tactics of litigating by instalments.

Despite the extraordinary steps the Ontario courts have taken during COVID, we must go further. Requesting ad hoc submissions from the public is a good step. But, it is not enough. We must have a formalized and easy way for people to make suggestions for change. Such ideas could be:

• A website dedicated to submissions for the Civil Rules Committee;
• A Chatbot, linked to an existing or new website, to handle suggestions from interested individuals; or
• An organized Zoom call, where people can opt-in to speaking, to the Civil Rules Committee.

Whichever path forward is chosen, I am confident that hearing from a variety of perspectives will enhance the civil litigation process.

 

(Views are my own and do not represent the views of any organization.)

 

 

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SCC: Uber Mediation Unconscionable. Uber Is a Business Known for Pressing Limits, Did They Press Too Far This Moment?

There is a class-action lawsuit by Uber drivers in Ontario against Uber alleging, among other things, violations of employment standards legislation. The main issue is whether Uber drivers are independent contractors as the Uber agreement says, or whether they are actually employees.

But before those issues could be heard, the courts had to decide whether those issues could be litigated in the courts, or whether they had to be decided through binding arbitration, as stated in the Uber agreement. The Supreme Court of Canada found the arbitration clause invalid because it was “unconscionable”, and thus the merits of the case will be decided in court, not under the arbitration clause. (Some background about the Uber action is in previous Slaw posts.)

Arbitration clauses saying that disputes must be settled by an alternative dispute resolution (ADR) process rather than in the courts are common in agreements. The idea is that ADR can be quicker, easier, cheaper, and more private than litigation. It can also help preserve the relationship between the parties as opposed to going to court. So, for the most part, arbitration clauses are a good thing.

So why was this one unconscionable?

The Uber arbitration clause required disputes to be heard through an arbitration process in the Netherlands pursuant to International Chamber of Commerce rules. Under those rules, the cost to initiate an arbitration is about US$14,500. Legal fees and travel to the Netherlands would be on top of that.

The court found that given the amount of money that an Uber driver makes, “… arbitration is out of reach for him and other drivers in his position.” Also, that “Respect for arbitration is based on it being a cost-effective and efficient method of resolving disputes. When arbitration is realistically unattainable, it amounts to no dispute resolution mechanism at all.”

So the merits of this lawsuit can now proceed to be decided in the courts.

This will be a closely watched case as the issue of employee vs independent contractor is a common one.

Another question arising from the decision is whether its unconscionability analysis might be applied to other aspects of standard form contracts of adhesion where one party has no choice but to accept the contract presented. The commercial certainty of such contracts being enforceable is important. The issue is where the line is between typical and reasonable provisions and unconscionable unenforceable ones.

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Alberta Tables Substantial Proposed Employment Legislation Adjustments

On July 7, 2020, the Alberta government tabled Bill 32, The proposed Restoring Balance in Alberta’s Workplaces Act that will support economic recovery, restore balance in the workplace and get Albertans back to work. The Bill proposes changes to the Employment Standards Code and the Labour Relations Code. Labour and Immigration Minister Jason Copping stated to the media that the proposed legislation would support economic recovery by cutting “red tape” for businesses and would reverse some changes made by the NDP when they were in government.

1. Key changes to the Employment Standards Code (ESC)

I. Hours of work and rest periods

The rest period requirements under the ESC will be restructured to say, for shifts between 5 and 10 hours, at least one 30-minute rest period paid or unpaid is required. For shifts more than 10 hours, two rest periods are required of at least 30 minutes. The 30-minute rest periods can be broken down into two 15-minute breaks. If there is no agreement on a rest schedule, the ESC defines when breaks will be taken.

A collective agreement may now override the hours of work, shift change and days of rest requirements under the ESC.

II. Averaging agreements

The provisions allowing for averaging agreements have been removed from the Act and will be addressed in Regulation. The new averaging agreement provisions are also being made more accessible and flexible for employers. Averaging agreements have reverted to the concept of compressed workweeks. Employees no longer have to agree to be placed under an averaging agreement. An employer can impose an averaging agreement on employees at the time of hire in the employment contract or on two-weeks notice for an averaging period of 52 weeks (currently 12 weeks).

The averaging agreement must specify the work schedule with daily and weekly hours and the overtime entitlements, however, changes to the schedule are allowed under the new provisions. Employers can determine the manner of amending the work schedule under the agreement by providing notice of the change when required.

Employees are allotted a right to complain about non-compliance by the employer with the averaging agreement of 6 months.

III. Holiday pay

The method to calculate holiday pay is changing by removing the definition of average daily wage (5 percent of an employee’s wages, vacation pay and general holiday pay earned in the four weeks prior to the general (public) holiday.) Holiday pay will now be calculated by averaging the employee’s total wages in one of two periods the employer chooses over the number of days worked by the employee in the period, and these include:

• The four-week period immediately preceding the general holiday or
• The four-week period ending on the last day of the pay period immediately preceding the general holiday.

IV. Deductions from earnings

Bill 32 will allow employers to deduct from employees earning:

• Recovery of an overpayment of earnings paid to the employee resulting from a payroll calculation error. The recovery of overpayment can be made up to 6 months after it was paid to the employee; and
• Recovery of vacation pay paid to the employee in advance of the employee is entitled to it.

V. Temporary layoffs

Bill 32 will extend the normal period of temporary layoff from 60 days within a 120-day period to 90 days within a 120-day period before it becomes a termination. For COVID-19 temporary layoff period, it remains at 180 days before it becomes a termination.

VI. Group terminations

The group termination provisions are reverting to pre-2018 changes, where employers are required to provide four weeks notice to the Minister of Labour when 50 or more employees are being terminated at a single location within a 4-week period. Exempt from this notice provision are employees employed on a seasonal basis or for a definite term or task.

In addition, the group termination requirement has been removed from the individual termination notice or pay in lieu of notice requirements. This change reduces the cost related to group terminations under the ESC substantially.

VII. Payment of earning upon termination

When an employee’s employment ends, the employer will have to pay termination pay within one of the following periods:

• 10 consecutive days after the end of the pay period in which the termination of employment occurs; or
• 31 consecutive days after the last day of employment.

Currently, the time limits are 3 or 10 days after employment ends.

VIII. Variances to ESC

The variance provisions under the ESC have been streamlined to allow among other things that employer associations or groups of employers to apply to the Director of Employment Standards for a variance from certain ESC provisions. Individual employers can apply to the Minister of Labour.

Coming into force of ESC changes

If enacted, Bill 32 will come into force on August 15, 2020, with certain provisions delayed until November 1, 2020.

2. Key changes to the Labour Relations Code (LRC)

I. Union certification and revocation procedures including remedial certification

Bill 32 reverts the procedures for union certification and revocation applications back to pre-2018 procedures. For example, Bill 32 removes the time limits of 20 or 25 working days after an application is filed for it to be fully determined. Labour relations experts had stated that these time limits were hard to extend, arbitrary, inflexible and insufficient to properly address the applications.

As a result of Bill 32, the Labour Relations Board will be able to complete its inquiries and determinations on an application as soon as possible but with the final decision no later than 6 months after the application is filed.

When a certification or revocation application is refused or withdrawn, the same or substantially the same application cannot be submitted within 90 days without the consent of the Board. If a trade union used coercion, intimidation, threats, promises or undue influence to encourage or discourage union membership or activity related to certification applications, then the 90 days time period is extended to 6 months.

Bill 32 tightens the right to remedial certification and these include:

• There must be a determination by the board that a representation vote does not reflect the true wishes of the employees in the unit because of prohibited practice;
• Automatic certification can be issued only if no other remedy or remedies would be sufficient to counteract the effects of the prohibited practice;
• The Board may refuse to certify on the same conditions in cases of prohibited practices by a union.

II. First Contract arbitration

The UPC government is retaining the first-contract negotiation arbitration but as a remedy of last resort with the following amendments:

• The board must be satisfied that arbitration is necessary and that the employer or trade union, as the case may be, has committed an unfair labour practice; and
• No other remedy or remedies would be sufficient to counteract the effects of unfair labour practice.

III. Reverse onus upon employers in cases of unfair labour practice

The reverse onus upon employers in cases of unfair labour practice has been retained but limited to cases involving employee termination only and will now apply against unions in certain cases of unfair labour practice.

IV. Union discipline

Bill 32 provides greater protection for workers by making it more difficult for unions to punish them for seeking to work for employers without a relationship with the union. As a result, a worker cannot be punished if the non-union employment taken does not threaten the union’s legitimate interests.

In addition, the Board must consider a number of factors in assessing whether a union can provide reasonable employment. Currently, the LRC requires the union to provide reasonable alternate employment for workers before it can punish workers for taking non-union employment. If Bill 32 is enacted, the factors the Board must consider when assessing reasonable alternate employment for workers before it can punish a worker for taking a non-union job include:

• Whether the proposed employment is comparable to the current or former employment in respect of the primary functions and responsibilities of the position, duration of the position and wages and benefits offered;
• That a bargaining unit position is not reasonable alternate employment in respect of a managerial position; and
• that reasonalbe alternate employment must be in the same industry as the current or former employment.

V. Union dues

Bill 32 introduces a requirement for workers to opt-in to the payment of union dues unrelated to core union activities. Meaning, union dues deducted from employee’s pay are still mandatory if requested, but only for core union activities related to the representation of employees (i.e., negotiation and administration of collective agreements). Workers will no longer be required to support non-core union activities such as political activities, charitable and social causes. This new provisions will also be found in the Public Service Employee Relations Act, Public Education Collective Bargaining Act, the Post-secondary Learning Act and the Police Officer Collective Bargaining Act.

VI. Strikes, lockout and picketing

The enhanced-mediation process is now referenced as an alternative to mediation under s. 65 of the LRC and will now be a precondition to holding a strike or lockout vote.

The ability of the Board to suspend the deductions and remittance of union dues in cases of illegal strikes has been re-established in the LRC. Suspensions may continue for one to 6 months. When there is an illegal lockout, Bill 32 would allow an order for an employer to pay the union dues, assessments and other fees payable by employees to the union.

Bill 32 also prohibits picketing at secondary locations unless permitted by a Board order after an application has been filed.

Bill 32 facilitates the enforcement of Board orders in respect to illegal strikes or lockouts and illegal picketing. Such orders (interim or final) will now, if determined by the board or upon request, be immediately filed with the Court of Queen’s Bench as an order of the Court. Therefore, violations of these orders would immediately be subject to more severe consequences for failure to comply.

VII. Raids by trade unions in the construction sector

Bill 32 will not allow the early termination of construction collective agreements in cases of union raids. Currently, when a trade union raids another trade union’s bargaining rights, the LRC allows the new union to terminate the existing collective agreement upon two-months notice. In construction, the termination can be automatic and costly for construction employers. This will no longer happen in the construction sector.

VIII. Collective agreement renewals

Bill 32 will allow early renewals and changes to the duration of the collective agreement under certain conditions including that:

• employee must have been informed by their bargaining agent that no applications for certification or revocation will be permitted if the employees vote to enter into the new collective agreement, and,
• employees than vote to enter the new collective agreement.

The Board hs the power to resolve any disputes over these new provisions, with time limits on when such applications can be filed.

IX. Financial reporting and disclosure

Bill 32 adds new requirements upon unions to provide members with an annual financial statement free of charge and within a reasonable time. Details of what must be included in the financial statement and the different classes of a trade union to which this obligation will apply will be outlined in Regulations.

If the union fails to comply with these requirements, a union member has a right to complain to the board so that the union complies.

X. Arbitrators powers and awards

The power of an arbitrator to relieve against grievance time limits will be removed from the LRC. Also removed is the provision requiring arbitrators to make decisions in accordance with the principles of Canadian labour arbitration, allowing for the application of the principle and the application of concepts unique to Alberta.

Bill 32 repeals the legislated standard for board review of grievance arbitration decisions. As a result, the Board will need to determine what standard is to apply in the future. The Board will also have the ability to award costs in cases of grievance arbitration review.

Bill 32 also repeals interest arbitration provisions in a collective agreement between the post-secondary institution and an academic staff association and terminates any interest arbitration processes.

XI. Labour Relations Board changes

Bill 32 makes several changes to the Labour Relations Board powers, process and hearings.

The board may hear cases with the Chair or a Vice-Chair sitting alone rather than a full panel of three when:

• it reviews grievance arbitration awards
• it reviews certain determination applications under the LRC (e.g., whether someone is an employee, whether an organization is a trade union, the membership status of a person in a trade union, whether a bargaining unit is appropriate and whether someone is including in a bargaining unit);
• compelling witness attendance and production of documents;
• questioning circumstances relating to a strike or lockout votes; and
• if the Chair is of the opinion it is necessary due to an emergency.

The power of the Board to summarily reject applications is expanded for cases where an application is filed with improper motives or is otherwise an abuse of process.

The power of the board to summarily dismiss duty of fair representation complaints against unions is extended to where the worker complainant has refused to accept a settlement that is fair and reasonable.

Coming into force

Most of the changes to the LRC come into force on Royal Assent. Others will come into force upon proclamation, meaning at a later date when Regulations are filed.

Unions response to Bill 32

Unifor, Canada’s largest private-sector union, said the bill, along with already passed legislation that clamps down on demonstrations interfering with critical infrastructure, is an attempt to silence legitimate dissent.

“When unions use free speech rights to speak out against injustice, we’re standing up for all workers,” said Unifor national president Jerry Dias.

“Combined with criminalizing protest under the new Critical Infrastructure Defence Act, the [Premier] Jason Kenney is using the power of big government to silence the voices of working people.”

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Alberta Tables Significant Proposed Employment Law Changes

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The Inviolability of the Body

The central premise behind civil laws is a private wrong done to another.

According to Graham McBain in International Law Research, the earliest example of what would become the common law probably can be attributed to the Anglo-Saxon concept of “wounding,” which constituted a tariff system of fines from the 6th c. CE, based on the nature of the injury.

This personal wrong evolved into a form of trespass to the person, which we now know today as a civil tort of battery. Justice Cartwright drew on an 1891 Queen’s Bench decision in an early Canadian case in Cook v. Lewis to describe the wrong in 1951 as,

…where a plaintiff is injured by force applied directly to him by the defendant his case is made by proving this fact and the onus falls upon the defendant to prove “that such trespass was utterly without his fault.”

The facts in this case were complicated, in that the plaintiff was shot by one of two hunters but neither knew which one was responsible, so the decision was decided under the principles of negligence instead, finding both hunters liable. Expressly pleading negligence in the claim was therefore essential to its success.

After reviewing the decision in Cook, Justice MacDonald affirmed the following definition of battery in Larin v. Goshen in 1974,

The law in Canada at present (sic) is this: In an action for damages in trespass where the plaintiff proves that he has been injured by the direct act of the defendant, the onus falls upon the defendant to prove that his act was both unintentional and without negligence on his part, in order for him to be entitled to a dismissal of the action.
[emphasis in the original]

The tort of battery continues to develop and evolve, for example, contemporary calls to expand it to include non-consensual exposure to toxic substances, which would violate bodily integrity and compromise individual autonomy.

As recently as two decades ago, it was still relatively unusual to have battery claims for sexual assault. The Supreme Court of Canada decision Non-Marine Underwriters, Lloyd’s of London v Scalera examined a civil action against five bus drivers for various alleged sexual assaults between 1988-1992.

Justice McLauchlin, as she then was, stated for the majority,

2 As Goff L.J. (as he then was) stated in Collins v. Wilcock, [1984] 3 All E.R. 374 (Q.B.), at p. 378, “[t]he fundamental principle, plain and incontestable, is that every person’s body is inviolate”.  The law of battery protects this inviolability, and it is for those who violate the physical integrity of others to justify their actions.  Accordingly, in my respectful view, the plaintiff who alleges sexual battery makes her case by tendering evidence of force applied directly to her. “Force”, in the context of an allegation of sexual battery, simply refers to physical contact of a sexual nature, and is neutral in the sense of not necessarily connoting a lack of consent. If the defendant does not dispute that the contact took place, he bears the burden of proving that the plaintiff consented or that a reasonable person in his position would have thought that she consented…

…

10 …In my view the law of battery is based on protecting individuals’ right to personal autonomy. To base the law of battery purely on the principle of fault is to subordinate the plaintiff’s right to protection from invasions of her physical integrity to the defendant’s freedom to act… Although liability in battery is based not on the defendant’s fault, but on the violation of the plaintiff’s right, the traditional approach will not impose liability without fault because the violation of another person’s right can be considered a form of fault. Basing the law of battery on protecting the plaintiff’s physical autonomy helps explain why the plaintiff in an action for battery need prove only a direct interference, at which point the onus shifts to the person who is alleged to have violated the right to justify the intrusion, excuse it or raise some other defence.

…

15 These arguments persuade me that we should not lightly set aside the traditional rights-based approach to the law of battery that is now the law of Canada. The tort of battery is aimed at protecting the personal autonomy of the individual. Its purpose is to recognize the right of each person to control his or her body and who touches it, and to permit damages where this right is violated. The compensation stems from violation of the right to autonomy, not fault. When a person interferes with the body of another, a prima facie case of violation of the plaintiff’s autonomy is made out. The law may then fairly call upon the person thus implicated to explain, if he can. If he can show that he acted with consent, the prima facie violation is negated and the plaintiff’s claim will fail. But it is not up to the plaintiff to prove that, in addition to directly interfering with her body, the defendant was also at fault.

16 Having stated that we should not set aside the traditional approach to battery, I do not wish to foreclose the possibility of future growth in this area of the law. References in definitions of the tort of battery to “injury”, or to contact being “unlawful” or “harmful or offensive” are different ways of expressing the idea that not every physical contact constitutes a battery. In other words, the tort requires contact “plus” something else. One view, as I discuss in the next section, is that the “plus” refers merely to non-trivial contact. The caselaw to date tends to support this view, and generally does not require actual physical or psychological injury. In a future case, it may be necessary to consider whether the “plus” required in addition to contact should be extended beyond the minimum of non-trivial acts...
[emphasis added, citations omitted]

The case came before the Court not necessarily about the definition of battery or that the lack of an intention to harm constituting a defence, but whether a homeowner’s insurance policy by one of the defendants would provide coverage.

Specific exclusion clauses for sexual assault would be scarce in such policies generally, which led to the court to examine the pleadings. They found the plaintiff to have properly plead allegations of both intentional and non-intentional tort, and at para 86 the dissent stated, “…one must always remember that insurance is presumed to cover only negligence, not intentional injuries.”

While cautioning that a plaintiff may draft a claim in a way that seeks to turn intention into negligence, specifically for the purpose of accessing an insurer’s deep pockets, the dissent relied on the comments around the interpretation of insurance polices found in Consolidated-Bathurst Export Ltd. v. Mutual Boiler and Machinery Insurance Co. to conclude a literal meaning should not be applied to an insurance contract where it would bring an unrealistic result or one that was not contemplated at the time of agreement.

Thomas O’Leary explains this in the Alberta Law Review Society,

Most policies have a number of mechanisms… to safeguard the principle of risk and preclude cover for intentionally caused losses. These mechanisms include requirements coverage as well as exclusion clauses for intentional acts. Usually, plaintiffs in sexual tort cases allege “negligence“ in an attempt to circumvent these types of provisions and gain access to some insurance money. The decision in Scalera seemed largely directed toward limiting this practice and any effectiveness it might have enjoyed.

Given the convoluted nature of the pleadings, the dissent sought to interject a reasonable person element to the analysis as it related to consent. In part, this was because the plaintiff plead a breach of fiduciary duty, likely due to the previous case of Reibl v. Hughes in 1980, dealing with medical battery. Unlike in that case, there was no physician-patient relationship that would give rise to such duty.

The majority rejected what they considered a reformulation of sexual battery, affirming that personal interference with the body is prima facie violation of autonomy, without requiring a plaintiff to prove that they did not consent or that the defendant knew or ought to have known that they did not consent.

The advantage of relying on battery instead of negligence in pleadings is also apparent from an evidentiary basis, independent of any insurance concerns. Chief Justice Laskin stated for the Court in Reibl,

The tort [of battery] is an intentional one, consisting of an unprivileged and unconsented to invasion of one’s bodily security. True enough, it has some advantages for a plaintiff over an action of negligence since it does not require proof of causation and it casts upon the defendant the burden of proving consent to what was done.

For sexual assault cases, the evidentiary concern can be a significant one, as these proceedings can often be brought years after the alleged battery, due to an exception to limitations under s. 16 of the Limitations Act, which were introduced in 2016. The court in Jane Doe v. Weinstein confirmed that these exceptions apply retroactively.

More recently, the Ontario Superior Court of Justice released a decision in Barker v. Barker, alleging battery, assault, and intentional infliction of emotional distress.

The action involves patients at a maximum security health centre between 1966-1983, by patients in the Social Therapy Unit (STU) involving controversial treatment that included mind-altering drugs, isolation cells, hallucinogenic drugs, and a strict disciplinary regime, Tactics included verbally aggressive communication and patient-on-patient physical enforcement, all under the guise of therapy.

One of the defendants described it as the “greatest experiments in psychiatry.” Notably, all of the plaintiffs were committed involuntarily, and did not consent to this treatment or the tactics employed. The entire program was subject to an Ombudsmen report, and they in turn reported to the Ontario Legislature stating in 1978,

1. That the program is applied humanely and intensively
2. that the patients understand the nature
of the therapy…

4. that the patients are well informed about
the treatment and its possible benefits…

The court in this action found otherwise. The medical expert for the plaintiffs, a medical ethicist, went as far as saying they violated the Nuremberg Code of 1947 and the Declaration of Helsinki of 1964. Perhaps this was only possible because at least one of the physicians acknowledged also taking hallucinogenic drugs.

There were 28 named plaintiffs in the action, after a class action was denied certification. The Court of Appeal then reversed a partial summary judgement, which included issues around limitations, and varied the ruling around procedural fairness, noting the claims included “very serious allegations of torture and degradation of human dignity.”

The court intended to expedite the matter given that the events were nearly half a century old, and it then proceeded as a hybrid summary and full trial. By that time, 4 of the 28 plaintiffs had already died, with two more dying during the course of the trial, and another 2 plaintiffs dying while the judgement was under reserve.

The court concluded that it was obvious that the practices at the centre were experimental, and not “innovative,” as described by the defendants, stating,

[1178] McLachlin J. (as she then was) stated in Norberg, supra, at para 78, that these duties are even more stringently applied to psychiatrists than to other practitioners:

“The Task Force of the Ontario College of Physicians and Surgeons has in its report also recognized the greater danger of breach of trust inherent in psychotherapeutic relationships, and has as a consequence recommended even more stringent guidelines for appropriate psychotherapist behaviour than it has for physicians practicing in other areas.” Accordingly, “[t]he physician is pledged by the nature of his calling to use the power the patient cedes to him exclusively for her benefit. If he breaks that pledge, he is liable”: Ibid., at para 98.

In other words, a breach of professional ethics can in and of itself qualify as a legally cognizable breach of fiduciary duty.

Although some of the plaintiffs may have signed forms of consent or appeared to provide verbal consent, the court noted that “even where there was a semblance of consent, truly voluntary and informed consent was not possible in the coercive environment,”

[1193] All 3 of the impugned STU programs amounted to a non-consensual, non-trivial invasion of the Plaintiffs’ bodily integrity. The physical regiment of MAPP, whether or not accompanied by restraints, was self-evidently an infringement of bodily inviolability, as was the stripping and placing of patients in the Capsule with unhygienic conditions and sleep deprivation, again with or without restraints. Finally, the administering of DDT drugs without properly informed consent, whether by injection or orally, constituted a physical invasion that is legally a battery. For Joseph Bonner, being placed in confinement for extended periods of time – 6 of the 9 months that he was at Oak Ridge – likewise amounted to a physically invasive battery.

The limitations issue became the matter of an unusual mid-trial motion to amend the pleadings. The 2016 amendments to the Limitations Act occurred after the action began, and therefore could have been plead at that time. These amendments define the exception to limitations as including an assault, where ““assault” includes a battery; (“voies de fait”)”, and includes claims where a person was ” financially, emotionally, physically or otherwise dependent” on the defendant.

The court addressed the limitations issue as follows,

[1298] In Oak Ridge, the Plaintiffs were physically and psychologically dependent on the Defendants by virtue of the physician-patient relationship, a relationship of trust and an inherently fiduciary one even where the patient is a voluntary one. Where the patients are involuntarily admitted to a maximum-security psychiatric hospital, their dependence on the physicians and administration of the institution is complete.

…

[1301] In the context of this claim, no limitation periods, including the specially short ones invoked by Defendants’ counsel for involuntarily admitted patients, are applicable. In the first place, where there is any ambiguity or question, limitation provisions are to be construed in favour of the person whose right of action is being truncated: Berardinelli v. Ontario Housing Corp., 1978 CanLII 42 (SCC), [1979] 1 SCR 275, 280. Moreover, it has long been the position of this court that conduct that is an abuse of power, rather than an exercise of power, would “not be deserving of the special protection afforded by the short limitation period”: Cascone v Rodney; Prochnicki, Third Party (1981) 34 OR (3d) 618 (HCJ). That characterization readily applies to the acts of the Defendants in breaching fiduciary duties and perpetrating intentional torts on the Plaintiffs.
[emphasis added]

The magnitude of this case may transform the understanding of the harm that flows from certain forms of battery, including a broader recognition of psychological damages. The Court pointed to the Court of Appeal’s decision in CCLA v Canada (Attorney General), where confinement can constitute cruel and unusual punishment, and earlier, that such physical confinement can also result in psychological harm.

Wounding of this type, which goes beyond the scale of battery claims as typically defined, may allow us to better understand how the inviolability of the body without excuse or defence, can have further reaching impacts than we ever imagined. Perhaps even more than a psychiatrist on hallucinogenic drugs.

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The Inviolability of the Body

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