RSS FeedUofO Law Students File Against Facebook
We’ve talked about how litigious law students can be, but these four Canadians from the University of Ottawa recently filed a complaint against Facebook to the Federal Privacy Commissioner.
One of the students, Harley Finkelstein, is quoted as saying,
There’s definitely some significant shortcomings with Facebook’s privacy settings and with their ability to protect users.
What’s interesting is how the complaint was raised.
According to Philippa Lawson, Director of Canada’s only technology law clinic, the students were reviewing Facebook as part of their winter term when they identified 22 potential violations of Canadian law.
The complaint was filed on behalf of the Canadian Interest and Public Policy Clinic (CIPPC), and can be viewed online.
The points of interest include failures to:
- Identify all the purposes for which it collects Users’ personal information
- Obtain informed consent from Users and non-Users to all uses and disclosures of their
personal information - Allow Users to use its service without consenting to supply unnecessary personal
information - Obtain express consent to share Users’ sensitive information
- Allow Users who have deactivated their accounts to easily withdraw consent to share
information - Limit the collection of personal information to that which is necessary for its stated
purposes - Be upfront about its advertisers’ use of personal information and the level of Users’
control over their privacy settings - Destroy personal information of Users who terminate their use of Facebook services
- Safeguard Users’ personal information from unauthorized access
- Explain policies and procedures on the range of personal information that is disclosed to
third party advertisers and application developers
Updates
Harley Finkelstein writes in to Law is Cool, and shares this news release.
Mob Boss Plots to Kill His Judge, Now Worried Judge Can’t Be Impartial
The New York Sun (via AP) reports that the alleged mob boss known as Vinny “Gorgeous” Basciano asked an appellate court yesterday to order the judge in his upcoming trial to step aside.
The reason? Basciano apparently made credible death threats against the judge, and is now worried that the judge cannot be impartial.
Ironically, Basciano is on trial for making death threats against a prosecutor. A key piece of evidence in that case is purportedly a hit list which names not only the prosecutor in question, but two informants, and indeed, judge Nicholas Garaufis, who is hearing the case.
The U.S. Attorney is arguing that the mob boss put the judge on the hit list expressly for the purpose of having the judge removed. Basciano’s counsel countered by saying that there simply was never any such plot to kill the judge. It is not clear if she meant that the list was not legitimate or that the list was not intended seriously.
Basciano is already serving a life sentence for racketeering, murder, and attempted murder.
Will Obama, Hillary, or McCain ever be as funny as Bush?
Say what you will about George Dubya Bush. He certainly wasn’t America’s most popular President. He certainly wasn’t America’s smartest President. He definitely wasn’t America’s best President.
But as his 8 years in office draw to a close, I’m left with a bittersweet feeling.
There’s just no way that today’s candidates for office will ever match Bush on the hilarity scale. We’ll just have to accept that the glory days for late-night television like The Daily Show and The Colbert Report will soon be over. Whether you were laughing with him, or laughing at him, no President will ever provide as much fodder as Bush.
Here’s Bush congratulating graduates from the Air Force Academy today. Words do not describe.
(photo credit belongs to Charles Dharapak of AP)
Ridiculous Warning Signs Coming Soon to a Supermarket Near You
The Canadian Press reports today that a B.C. woman has filed suit after being bitten by a spider while perusing the goods at a grocery store.
The woman, one Jessica Rocha De Mori, claims that two years ago, she was picking through produce at the T & T Supermarket (great store, by the way) in Surrey B.C. when she was viciously attacked by an eight-legged monster. She is seeking damages for injury that she suffered (a severe allergic reaction) as well expenses and economic losses.
The plaintiff’s statement of claim alleges that T & T Supermarket was negligent in not preventing spiders from turning up in the produce, or in the alternative, for not posting a warning sign extolling the dangers of the fruit section.
If this thing isn’t statute-barred for being outside the limitation period, I hope it fails for remoteness. If not, expect to see warning signs cropping up at grocery stores to let us know that the fruit aisle might contain:
spiders, dead flies, fruit, asbestos, little green monsters, sharp pointy things, and any other of the infinite possible things that pose a threat to our health which the supermarket can scarcely do anything about.
How to Get a Law Job
How to Get a Law Job
Dear <Firm’s name>,
Thank you for your letter of . After careful consideration I regret to inform you that I am unable to accept your refusal to offer me employment with your firm. This year I have been particularly fortunate in receiving an unusually large number of rejection letters. With such a varied and promising field of candidates it is impossible for me to accept all refusals.
Despite ’s outstanding qualifications and previous experience in rejecting applicants, I find that your rejection does not meet with my needs at this time. Therefore, I will initiate employment with your firm immediately following graduation. I look forward to seeing you then. Best of luck in rejecting future candidates.
Sincerely,
<Your name here>
A Wise Man Once Said…
Last week I met with Toronto lawyer Garry Wise.
Garry is one of the few Canadian practitioners that has made a prominent impression in the legal blawgosphere. Garry’s blawg was one of the other recipients of the 2007 CLawBie Awards, for Best Practitioner Support Blog:
Garry Wise – Year-in and year-out, Garry is one committed law blogger. He offers his opinions on almost everything, and if you do a Google search for Toronto lawyer you’ll see how blogging benefits the online exposure of his practice. If you didn’t read his Starting a law firm post back in February, please do. Garry Wise consistently offers great vision to a lot of solos across the country.
He related how he created his first firm site back in 1999, and has seen enormous returns from his online interaction. His client intakes have skyrocketed, and he is well-known and respected in the legal community.
We had a wonderful discussion on various subjects, and found many areas of mutual interest and common ground. Garry was generous enough to state that I would be an asset to any firm, and that progressive firms interested in expanding their client base should be trying to recruit me. Garry, I will be using your name as a reference as promised.
But he also suggested that I consider going solo directly out of law school, because I already have background knowledge and an existing client base in my area of legal interest (health), and greater prominence and contacts than many practitioners in the field for several years.
I’m not sure that’s the route I want to take, but it’s no surprise that his post on Starting a Law Firm is one of his most widely read articles. Garry outlines the basic requirements and strategic planning to set up your own firm.
But the “cons” he states – longer hours and more stress than even Bay St., and cost consideration during the initial start up – are likely to dissuade some of the most charismatic and entrepreneurial young lawyers, who opt to lend their credibility to a larger firm instead. Burn-out and stress are other often cited complaints of sole practitioners.
Gary Lloyd Gottlieb, a sole practitioner in Toronto, says in To be or no to be a prisoner of Bay St.,
The best advice I can give to a new lawyer who wants to practice solo is not to do it right away. You will spend too much time reinventing the wheel and then needlessly spinning it. Specialize and learn the ropes from the best lawyer or firm you can get a job with. Develop the knowledge and the competence for private practice for which law school has not equipped you, and for which the newly revamped bar admission process will not adequately equip you either. Develop your sea legs before you set sail alone.
That being said, all is not grim for those who choose to become sole practitioners. There are resources now available that did not exist when I sallied forth on my own 35 years ago
This could explain why the average age of sole practitioners in Ontario is 51, with only 12% under 35, according to a Law Society of Upper Canada (LSUC) survey in 2005.
Yet as we’ve pointed out before, nearly half of Canadian lawyers are self-employed. Jordan Furlong recently provided further break-down of the types of legal practice in Canada, indicating that less that 10% of Canadian lawyers can be found in large firms.
Gottlieb provides tips for those who comprise the vast majority if Canadian lawyers,
You need an independent temperament, the ability to constantly adapt, and eternal optimism to survive as a sole practitioner. You should also not expect a pot of gold.
Above all, you must take to heart the wisdom expressed in the Ethics of the Fathers; in order to be happy, you must be satisfied with your lot.
Access to Justice and Diversity
Smaller firms play an essential role in providing greater access to justice to smaller communities, and often more reasonable billing to clients.
But a recent story in the Star related how rising student debt compells many new graduates to flock to large law firms to pay off student loans. As a result, many smaller communities are increasingly finding themselves without legal services. Some have responded by considering loan-forgiveness programs for new lawyers who move to small towns.
Other lawyers go solo as a result of the failings of big firms that fail create inclusive environments. A 2000 LSUC Equity and Aboriginal Issues Committee report stated,
A number of lawyers feel alienated by the size and types of practice of large firms, and choose to practice in small firms or as sole practitioners.
But the report continues, and indicates that small firms might actually be worse for diversity issues.
However, small firms and sole practitioners often do not have the resources and time to deal with equity and diversity issues, or to develop the appropriate expertise to do so effectively. There are also those who may believe that equity does not add value for law firms which already have strong reputations and clients. Further, members of communities may not be aware of the availability of legal services or may feel that their lawyer either does not understand them, treats them differently, harasses or discriminates against them or otherwise violates their rights.
It’s probably a misconception then that lawyers elect for small practice because they cannot find an inclusive environment in any large law firm.
But there are other reasons for going solo, including women who want greater flexibility in their practice to accommodate a family.
Availability of Mentoring
Gottlieb has elsewhere criticized other LSUC initiatives of a practice management review program as a “A War on Sole Practitioners.” But these accusations have been rebuffed by Gavin MacKenzie of Heenan Blaike, who says that such procedures would apply to number of years of practice, and not type of practice ,
Both law society discipline and LawPRO statistics show that the early years of private practice pose a risk for the development of practice difficulties. Beginning the practice management review program with a focus on members who have been called to the bar for the formative one to eight years and who are in private practice is a risk-based approach that is justified both by data and common sense.
MacKenzie claims that LSUC instead provides support to the independant practitioner,
One of the most important initiatives of this Convocation has been to help sole practitioners and small firm lawyers to survive and thrive. We struck a task force to recommend ways in which as a profession we can preserve and strengthen the practices of the 94 per cent of Ontario law firms that consist of five lawyers or fewer. These sole practitioners and small firms provide the vast majority of legal services to individuals in search of access to justice.
The LSUC report on sole practitioners highlights mentoring as one of the major areas of need. And this probably remains the best asset that large law firms have for young lawyers, beyond issues of compensation or diversity. Many of the more progressive firms increasingly have formalized mentoring programs.
Size versus Presence
Valerie Mutton covered the LSUC report in the Lawyers Weekly, and interviewed Diana Miles, the LSUC’s director of professional development and competence. She suggests that planning is the essential key to a small practice.
But Jordan Furlong says,
Really, in 20 years time, the whole notion of law firm sizes may very well seem quaint. It won’t be all that relevant how big your law firm is with the exception of the global giants, size really won’t matter, because the heavily niched, increasingly mobile and wired lawyers of the future won’t find enough advantages to a common office space and letterhead. It may not even take that long, if the changes we can already see rippling through the profession start multiplying faster than expected.
According to Mutton,
Getting your name known in the community and within the profession is essential to the development of a successful practice…
Miles also suggests that new lawyers should take a course in personal marketing, since new lawyers often feel awkward about basic self-promotion such as handing out business cards or introducing themselves to potential clients.
The basic denominator to all these practices, whether small or the 10% in large firms, is presence.
And arguably, it is early adopters such as Garry Wise that have led the way for Canadian lawyers.
Mystery feet raise a stink in BC
For the past several months, severed human feet have been washing up on the shores of islands in British Columbia’s Georgia Straits.
Reuters reports that a fourth such severed foot has been found. A passer-by was walking along the shore on Kirkland Island, near the mouth of the Fraser River, when he made the gruesome discovery. The foot was still wearing a shoe.
Police aren’t drawing any conclusions about whether the owners of the feet are alive or dead, or whether this is the result of a grisly accident or something more sinister. DNA testing has failed to link the feet to any known missing persons.
For now, the feet remain a mystery.
LSUC Provides Measures to Retain Female Talent
Tracy Tyler has a story in today’s Star which notes that although women are the majority of graduates today in law schools, on average they are quitting the profession within seven years.
The Law Society of Upper Canada presented its final report yesterday by their Working Group on the Retention of Women in Private Practice.
The recommendations include the establishment of a parental leave program for sole and small firm practitioners, as well as a practice locum service, which are two of the most forward-looking proposals in the report. A recommendation to create the Justicia Think Tank, a project in which the Law Society would work with a group of large and medium sized firms across the province committed to implementing programs aimed at improving the retention of women was also adopted.
The Final Consultation Findings can be found here.
Tyler adds,
…the “next step” for the law society is to change law firm billing procedures that require women – and men – to work long hours in order to advance their careers.
Welcome the New Recruits
If you’re seeing some new names and new perspectives around here at Law is Cool, it’s because as always we are ever expanding our list of contributors.
Here are some of the new additions:
Lawrence Gridin is currently a second-year law student at the University of Western Ontario, graduating in the class of 2010. He completed his Bachelor of Science at the University of Toronto, majoring in Psychology and History. Lawrence volunteers at Western’s Community Legal Services and has participated in the clinic’s outreach program. His diverse interests include social justice, 20th century history, photography, boxing, and politics. Lawrence has a strong blogging, computer and technical background that we will be using to revamp the site.
Tom Slade is a second-year law student at the University of Ottawa. He has previously been blogging on his own site, and has joined our team recently.
Torwoli S. Dzuali has a Bachelor of Social Sciences degree (B.Soc.Sc.) from the University of Otttawa; with honours in Criminology and a concentration in Psychology. She is currently pursuing her LL.B at the University of Ottawa common law faculty and is a member of the Ottawa Law Review.
The incoming first-years:
Adam Campbell was recently been accepted into his 1st year of the law program at UNB. He is currently the site curator for two sites: Daily Triathalon and Muddy Socks. He is a mature student with a fairly unconventional background as a former national triathlon team member, who later worked for Triathlon Canada as the national team manager. He will be competing on the school’s cross-country running team.
Dylan Hayward studied film production at York University and is anxiously awaiting responses from several Canadian law schools.
We are still interested in taking on more contributors, especially incoming first-years, so please contact us at admin[at]lawiscool[dot]com for more info.
Follow-up: SCC tosses “dead fly” appeal
Yesterday I explained the background to the Mustapha v. Culligan of Canada cases. As expected, the Supreme Court issued its decision today. The full text of the lovely (read: short) decision can be be found here: Mustapha v. Culligan of Canada Ltd., 2008 SCC 27.
In a unanimous decision written by McLachlin CJC, the court threw out the appeal against Culligan. The reasons for judgment differed from those of the Ontario Court of Appeal (2006 CanLII 41807), with the Supreme Court finding that the negligence action failed at the remoteness of damages stage.
Here’s a summary:
Duty of care (para 6): As a manufacturer, Culligan owed a duty of care to the consumers of its products as per Donoghue v. Stevenson, [1932] A.C. 562 (HL).
Standard of care (para 7): The court was a little light on its reasons here, because the issue was not seriously argued after the trial level. The trial judge heard evidence that apparently flies were present in the bottling room and (obviously) could get into the bottles in spite of safeguards implemented by the company. Gross.
The Supreme Court concluded simply that Culligan breached the standard of care expected of it by not ensuring that water intended for consumption would be free of contaminants.
Damages (paras 8-10): The SCC reiterated that minor upset, anxiety, disgust, etc. are not recoverable in tort. However, Mr. Mustapha suffered recognizable and serious psychiatric trauma (namely a major depressive disorder coupled with anxiety and phobia). As such, Mr. Mustapha’s psychological injuries were very serious and sufficiently interfered with his quality of life to be recoverable.
Causation (paras 11-18): This was the crux of the SCC’s judgment:
“in order to show that the damage suffered is not too remote to be viewed as legally caused by Culligan’s negligence, Mr. Mustapha must show that it was foreseeable that a person of ordinary fortitude would suffer serious injury from seeing the flies in the bottle of water he was about to install. This he failed to do.” (para 18, my emphasis)
The trial judge was mistaken in applying a subjective standard which took into account Mr. Mustapha’s past history, circumstances, and cultural factors.
The chief justice did make one important qualification to the objective standard. At para 17, she writes:
“In those cases where it is proved that the defendant had actual knowledge of the plaintiff’s particular sensibilities, the ordinary fortitude requirement need not be applied strictly. If the evidence demonstrates that the defendant knew that the plaintiff was of less than ordinary fortitude, the plaintiff’s injury may have been reasonably foreseeable to the defendant.”
Conclusion (para 20): Mr. Mustapha’s appeal was dismissed with costs.
So there we have it.
“Dead fly in water bottle” case to be decided by Supreme Court tomorrow
One of the more interesting cases from first year Contracts/Torts class concerned a man, Mustapha, who sued Culligan Water after discovering a dead fly in one of its 5-gallon bottles. The facts of the case are sort of like Canada’s version of Donaghue v. Stevenson, [1932] A.C. 562 (HL).
According to the trial decision, (Mustapha v. Culligan of Canada Ltd., 2005 CanLII 11990 (ON S.C.)), Mr. Mustapha kept what can only be described as a meticulously sanitized house. Both he and his wife were obsessive about cleanliness. He purchased water from Culligan relying on the promise that it was cleaner and healthier than regular water.
When Mr. Mustapha’s wife was opening a new bottle and placing it in the dispenser, she noticed something dark floating in it. Upon closer inspection, she discovered to her horror that it was a dead fly. She immediately vomited. Mr. Mustapha also vomited. This went on for some time.
Mustapha developed a psychiatric illness in response to seeing the fly, and he suffered for months. He would have nightmares involving dead flies. He could not sleep for more than four hours per night. He could not drink water, and he needed therapy before he could take a proper shower. He even lost interest in sex.
Finally, Mr. Mustapha sued.
Despite the trial court’s characterization of Mr. Mustapha’s reaction as “objectively bizarre” (at para 180), he was awarded $342,000 in damages.
Culligan appealed (2006 CanLII 41807), and the Court of Appeal for Ontario reversed the trial decision.
As Blair J.A. explained, the extent of Mr. Mustapha’s psychological trauma was completely out of proportion and therefore could not have been reasonably foreseen by the defendant company (at para. 20):
“The issue of tort law raised on this appeal is whether a defendant may be liable for damages for psychiatric harm where the harm, by any objective measurement, consists of an exaggerated reaction by an obsessive person of particular sensibilities to what, in reality, is a relatively minor or trivial incident – the sight of a dead fly in a bottle of consumer water. In my view, the answer to this question is no.”
The test for tort liability set out in Mustapha was summarized at para. 49:
“Reasonable foreseeability of harm is the hallmark of tort liability. In my opinion, the test for the existence of a duty of care – and, therefore, for liability – in cases of psychiatric harm is whether it is reasonably foreseeable that a person of normal fortitude or sensibility is likely to suffer some type of psychiatric harm as a consequence of the defendant�s careless conduct. That is what reasonable foreseeability means.”
The Court of Appeal overturned Mr. Mustapha’s damage award and ordered him to pay $30,000 in costs to Culligan.
Mustapha then appealed up the chain.
The Supreme Court granted leave in June of last year. It is expected to deliver its judgment tomorrow. This should be interesting.
Israel and Syria Engaged in Fresh Peace Talks
Israel and Syria are publicly engaged in a new round of peace talks aimed at ending the bitter conflict between the nations that has been going on for half a century.
Israel, Syria, and Turkey have all publicly confirmed that peace negotiations have been taking place. Turkey is acting as a mediator between the two countries.
Herb Keinon of the Jerusalem Post writes that the significance of today’s announcement is not that talks are taking place (he points out that both countries had been hinting at negotiations at least since March), but that they are taking place publicly.
Keinon writes:
“Israel, at least until Wednesday, did not want to give Syria a photo opportunity to help it out of its isolation.
The question that needs to be asked now is what changed? One explanation preferred in Jerusalem is that the preliminary talks that have been taking place have convinced Israel that Damascus is indeed interested in substance, and not just form.”
Many Mideast commentators remain skeptical, and with good reason.
Ehud Olmert, the impugned Prime Minister of Israel, is currently embroiled in a corruption probe; it is the fifth such probe since he took office just two years ago. Opposition critics have charged that today’s announcement is aimed at diverting attention away from the government’s political problems.
The Associated Press quotes Yuval Steinitz, a member of the Knesset representing the Likud Party as saying:
“Evidently the prime minister is so corrupt that he is not only taking cash money in envelopes but he is ready to trade … our most vital interests in an attempt to save himself from criminal investigation.”
Furthermore, this is not the first time that the two countries have attempted to reach a peace settlement. Talks broke down in 2000 over the contentious piece of land known as the Golan Heights. The area sticks out like a finger from North-Eastern Israel.
This elevated region is of great strategic significance, in that it overlooks Lebanon, Syria, and to a lesser extent, Jordan.
In the 2000 talks, Israel was apparently willing to relinquish partial control of the Golan Heights, which is home to roughly equal numbers of Israelis and Druge Arabs that consider themselves Syrian. However, the talks came to a head over control of a small strip of the Golan which borders the Sea of Galilee.
The Sea of Galilee is Israel’s largest freshwater lake. Control of water resources is of increasing strategic significance all around the world, and the Middle East is certainly no exception. Not surprisingly, this will be a difficult bargaining point in this round of talks.
Nevertheless, it’s fair to say that both sides want peace, and the fact that talks are being conducted publicly is a very positive development. I remain optimistic.
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