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Nanny wins landmark suit after Star investigation
A foreign caregiver brought to Canada with a job offer from a “ghost employer” has been awarded $10,000 in damages in what is believed to be the first court victory against a nanny recruiter.
Labour Dispute May Still Affect Olympics
Even though B.C. passed back-to-work legislation for paramedics and dispatches in Nov., the ongoing dispute with the labour could still affect the Vancouver Olympics.
The Canadian Press reports:
Ambulance Paramedics of B.C. president John Strohmaier said the union is encouraging colleagues across North America not to volunteer at the Games until the dispute is over.
He said the issue could have been resolved if the province had appointed an independent, third-party commissioner to review the union’s concerns.
Instead, the provincial government has appointed an industrial inquiry commissioner who is a former deputy finance minister.
Don’t Smile when Depressed and Dancing with Strippers
Nathalie Blanchard of Bromont, Quebec, has been on sick leave for a year and a half for long-term chronic depression.
The 29-year-old woman had her benefits cut by IBM after she posted pictures on Facebook at a male stripper show, her own birthday party and on holidays. Her Manulife representative told her that,
I’m available to work, because of Facebook.
Ironically, most of these events were recommended by her physician as part of her treatment.
Depression is not like other disabilities where Facebook has been used to demonstrate lack of impairment. The complex parameters of a psychosocial condition like depression is entirely distinct from factors such as range-of-motion, flexibility, and strength that are more commonly assessed in physical disabilities.
Thomas Lavin, Blanchard’s counsel, expressed similar reservations,
I don’t think for judging a mental state that Facebook is a very good tool. It’s not as if somebody had a broken back and there was a picture of them carrying …a load of bricks. My client was diagnosed with a major depression. And there were pictures of her on Facebook, in a party or having a good time. It could be that she was just trying to escape.
We don’t know if Blanchard was bipolar, or has a chronic pain condition that may affect the presentation of her depression disorder. Although the inability to smile can lead to depression, those that do smile and possibly appear happy are not necessarily without depression.
And if we think about it for a second, Blanchard is not likely to select the photos of her sulking in the corner onto her profile. Facebook photos go through a screening process, essentially attempting to put the “best face forward.” What each person considers best, whether it’s attractiveness, professionalism, interesting, provocative, or wacky, does vary from person to person. In Blanchard’s case, where family and friends likely know about her prolonged bout with the blues, it is not unreasonable to expect her to at least try to look happy.
Here are some more established methods of evaluating depression, that long precede the use of Facebook photos:
- Hamilton Rating Scale for Depression (HRSD or HAM-D)
- Montgomery-Åsberg Depression Rating Scale (MADRS)
- Beck Depression Inventory (BDI or BDI-II)
- Zung Self-Rating Depression Scale
- And more.
As persuasive as Facebook photos might be to a jury, it lacks scientific reliability and validity. Insurance adjusters know this, and without corresponding clinical data to confirm any impressions, they should be reluctant to reject or terminate claims on the basis of photos alone without any context.
Strikers To Target Students…
Yesterday at 00:01, the London Transit Commission went on strike for the first time in almost 30 years. The local 741 Amalgamated Transit Union and the City of London are, depending on who you talk to, either close or far from a deal.
As I am fortunate enough to own a vehicle and I have offered my spare seats to pick up other law students. As I was driving in to pick up a friend, I was listening to the radio and I was glad to hear that UWO had decided to assist students by renting upward of 50 vans to drive students who live more than a 30 minute walk from campus to and from school.
The conversation quickly changed when in the hosts next breath he reported that Pat Hunniford, president of the local transit union, had declared that if UWO goes ahead with trying to provide transportation to its students, that his union would setup a picket line at UWO!
But, he warned, if the University of Western Ontario goes ahead with volunteer drivers using vans to move students, the union will put up picket lines at the campus.
Western’s unions have agreed not to cross those lines, he said.
“The students may get to classes, but they may not have anybody teaching them.”
The longer the strike goes on, the longer it will take for service to resume once a deal is signed, Hunniford added.
Although I understand the importance of unions, I feel that the potential of UWO’s unions holding a sympathy strike would do nothing more than hurt the students. However, I digress.
Back to the LTC picketing UWO’s attempt to provide an reasonable alternative for its students. I immediately thought of the legality of this. In my two months of law school, we have covered cases like this, where the court held that it was illegal to strike on private property (see: Harrison v. Carswell (1975), [1976] 2 S.C.R. 200).
The next thing I thought, is whether the property flowing through UWO’s “boundaries” is actually considered private. For this we can refer back to Harrison v. Carswell where in that case the picketing was occurring on a shopping mall’s property. UWO much like a shopping mall has a direct invitation for people to come on its property to enjoy its use. The dissent in Harrison v. Carswell argued the mall was a public place and as such could be used as such “revocable only upon misbehaviour (and I need not spell out here what this embraces) or by reason of unlawful activity”
However, public and private property in Ontario are also included in Trespass to Property Act, R.S.O. 1990, c. T.21 defines what property (aka premises) is:
“premises” means land and structures, or either of them, and includes,
(a) water,
(b) ships and vessels,
(c) trailers and portable structures designed or used for residence, business or shelter,
(d) trains, railway cars, vehicles and aircraft, except while in operation. (“lieux”) R.S.O. 1990, c. T.21, s. 1 (1).
As with this definition, it would be fully within the power of the UWO administration to prevent LTC picketers from setting up and preventing the transit of students to and from class. Although I am probably missing something under various Ontario labour laws, I am not really prepared to undertake a full research project into the legality of roaming strikes. Should my simple research turn out to be the law regarding this and should the LTC setup picket lines surrounding UWO, I would encourage the administration to take all necessary steps to ensure that students are not only able to have rides to school, but that classes will still occur.
Should the LTC begin to picket UWO and prevent students from obtaining a ride by UWO, any support held by students toward the union will quickly fall.
I applaud the university’s effort in assisting the students, and I, like many Londoners, hope the strike ends soon without holding the students or rest of London hostage in the time being.
If there is more by way of legality that you can add, please do so in the comments section… Thanks.
Belief in global warming protected from discrimination in UK labour law
Image From National Post via WattUpWithThat?
In the public policy debates over climate change, critics of strong action to mitigate global warming have often described proponents as “religious zealots”, and vice-versa. Moreover, since the concern over global warming has entered the mainstream consciousness, religious groups have been increasingly drawn to the discussion. Now, in the UK, a recent decision by an employment tribunal has actually equivocated belief in global warming with religious belief, for the purposes of workplace discrimination.
The case centers around Tim Nicholson, whose position as Head of Sustainability at Grainger, plc was terminated over what he claims was “contempt” for his beliefs about anthropogenic global warming. Nicholson alleged that his termination was due to his beliefs – which he argued should be protected from discrimination by the UK’s Employment Equality (Religion or Belief) Regulations of 2003.
In its decision this week, the employment tribunal ruled Nicholson would be allowed to bring his discrimination claim because Nicholson’s beliefs in global warming passed the tests formulated for “philosophical belief” for the purposes of the regulations:
From the tribunal’s ruling:
Grainger Plc & Ors v. Nicholson [2009] UKEAT 0219_09_0311 (3 November 2009)
In no way could this ever be taken out of context by anybody on either side of the larger debate…
Reputation Management Law is the Next Big Thing
Tony Wilson, of Boughton in Vancouver, wrote in this week’s issue of Lawyer’s Weekly,
Reputation matters… But it’s not just companies and trade-mark owners who have reputations to protect. We all do, and these days, much of our personal reputation is on the web for all the world to see.
Like many professionals, physicians in Canada operate by word-of-mouth referrals, largely based on the personal experiences of patients or other referring physicians. RateMDs has become an increasingly popular site for patients to share experiences about their physician.
It’s become enough of a concern to physicians that Sam Solomon provides some advice to MDs in this month’s edition of Parkhurst Exchange:
- Ask for the review to be taken down
- The Medical Justice approach of providing patients a contract allowing them to only post reviews on sites that confirm poster identity
- Sue
- Encourage patients to post positive reviews
- Use the criticism as an opportunity to improve practice
It’s unclear whether option 2) would hold up in court, and 1) is rarely effective, either due to confidentiality issues, site administrative policies, or simple refusal.
RateMDs was founded by the same people who made RateMyProfessors.com, RateMyTeachers.com, and the Ratingz.net network of rating sites that includes LawyerRatingz.com. It seems quite a few of my law professors are up there. A quick survey reveals that many Canadian attorneys have been rated, and most not favourably.
Assuming that the only people to ever review professionals are clients who have utilized their services is far too presumptuous. Competitors, business rivals, people with personal vendettas, and even opposing parties in lawsuits can pose as a client in an attempt to portray the person in a negative light.
It can and has happened. Solomon points to the case of Dr. Mohamed Foda of Leduc, Alberta, who forced RateMDs to provide information about a negative poster through the California Northern District Court in Foda et al v. RateMDs, Inc. On April 28, 2008, the Edmunton Sun covered the story,
An Edmonton urologist has launched a $12-million defamation lawsuit against two unidentified people for allegedly posting bogus poor ratings about him on the California Internet site RateMDs.com. In a March 31 statement of claim, Dr. Mohamed Foda alleges the postings were not made by actual patients of his, but by someone who has a “malicious” motive to harm his medical business, and states he will seek to identify the unknown defendants by searching for their computer identifying information. Foda claims the defamatory comments have caused irreparable harm to his reputation and medical practice and caused him emotional distress and anxiety.
The posts in question stated:
“This doctor prescribed me an antibiotic that causes birth defects after I clearly told him I was 4 months pregnant!! Apparently he made a ‘mistake.’” — Posted on RateMDs.com on October 1, 2007
“I found Dr Foda to ignore problems until drastic measures were required. Had to call numerous times to get an appointment. Felt that Dr Foda did not do required follow up in a timely manner. Did not inform patients of what he did in the OR [such as] remove tumours. Would have died if not for another [doctor].” — Posted on RateMDs.com on May 26, 2007
Administrator of RateMDs, John Swapceinski, says that the site gets letters from lawyers once a month. Not surprisingly, they do not comply with the requests. The site does serve an important public function for consumers of healthcare. But Swapceinski also said that Dr. Foda’s suit is the first time a lawyer has actually followed through and sued the site, and he indicated he would cooperate with a subpoena to release the information if one was provided.
In light of the Cohen v. Google and York University v. Bell Canada Enterprises cases I’ve covered previously, it’s probably no great surprise that the court did reveal the identity of the poster.
What is also unique about this case is that the person identified as the RateMDs poster was involved in different lawsuit on the other side of Dr. Foda in Foda v. Capital Health Region, [2007] A.J. No. 22; 2007 ABQB 19, where he was making a claim for breach of contract, conspiracy, harassment, defamation, and direct interference with economic relations.
The Court of Appeal ([2007] A.J. No. 668;2007 ABCA 207) upheld a motion to add a party to his statement of claim, but the defamation claim agains this party was struck for lack of evidence using the test in Botiuk v. Toronto Free Press Publications Ltd.,
62 …it is sufficient to observe that a publication which tends to lower a person in the estimation of right‑thinking members of society, or to expose a person to hatred, contempt or ridicule, is defamatory and will attract liability. See Cherneskey v. Armadale Publishers Ltd., [1979] 1 S.C.R. 1067, at p. 1079. What is defamatory may be determined from the ordinary meaning of the published words themselves or from the surrounding circumstances. In The Law of Defamation in Canada (2nd ed. 1994), R. E. Brown stated the following at p. 1‑15:
[A publication] may be defamatory in its plain and ordinary meaning or by virtue of extrinsic facts or circumstances, known to the listener or reader, which give it a defamatory meaning by way of innuendo different from that in which it ordinarily would be understood. In determining its meaning, the court may take into consideration all the circumstances of the case, including any reasonable implications the words may bear, the context in which the words are used, the audience to whom they were published and the manner in which they were presented.
But if the party Dr. Foda was seeking to add in the Alberta case – a Donna Canart, Surgical Clinic Coordinator at Leduc Community Hospital – is the same person identified in the California proceedings, this evidence may now be available. Canart allegedly filed a report against Dr. Foda according to the Capital Health Corporate Workplace Respect Policy, raising issues in the Alberta case of malicious prosecution. However, similar defamation claims in Alberta were made against co-defendant Linda Scott. The California case has only had two hearings to date, and Dr. Foda only spoke in general terms to Sam Solmon, so it is difficult to ascertain which specific party was behind the RateMDs posting.
Even when a claim is substantiated, it is possible for either party to turn malicious. The Foda case highlights that litigants in lawsuits can and will attempt to affect the reputation of the opposing party online, something I’ve predicted repeatedly. All types of litigation will invariably cross over into this specialized area of law.
Some of these rating sites allow the professors to respond to their students, even with video. Or, as they put it,
Your professors have been reading your comments on RateMyProfessors.com. Now it’s their turn…
I don’t see other professions going the same way, given the nature of client solicitation. So where do people turn for help?
Wilson concludes,
Just like there was no such thing as Internet law before the Internet or franchise law before there were franchises, a new and growing niche area is “reputation management law.” It straddles libel, slander and defamation law, freedom of speech, privacy law, copyright and trade-mark law, employment law and the rules governing Youtube, Facebook, Twitter and other social media. And like environmental law 25 years ago, it has nowhere to go but up…
Either way, it’s clear that online reputation management is the next big thing that everyone will have to deal with.
Everyone reading this is now searching their name on LawyerRatingz.com, or other sites like CanLaw. They’re probably wondering what they would do if they were deliberately maligned, and trying to figure out who is the best”reputation management lawyer” they know, if any.
And that’s assuming that you waited until the end of the article to do so.
Withler We Go From Here: The Future of Pension Reform
Western Law hosted a forum on pension reform this past Thursday, featuring community leaders, legal academics, and practitioners.
Pension Plan Basics
Prof. Robert Brown of the University of Waterloo explained some of the basics behind pensions.
There are two kinds of pension plans, defined benefit and defined contribution plans. A defined benefit plan provides flat benefits at a specified amount per year of work. They can present a pretty good idea of what to expect in terms of benefits, but if investments are hit hard it can decrease amount of funds, and they are often open to the vagaries of the market. A defined contribution plan allows you to determine how much goes into the plan, but you don’t know what you will get when you retire.
A multiple employer pension plan allows you to work for many different people, all of whom contributing to funds in your pension, and are common in the building trades. Single employer pension plans are far more common, and are usually what people think about when they refer to pensions.
A further refinement of types of plans are jointly sponsored pension plans, quite common in the public sector, where there is a shared risk with the government, who matches contributions to the plan. The largest of these Ontario Teachers’ Pension Plan, which is considered one of the better plans available, with a 12% matching.
There have been four major panels on pension reform across Canada in five different provinces. The Province of Quebec came up with a member funded pension plans which are defined benefit, but the benefit is not a guarantee but a target benefit. The plan sponsor just has to make a defined contribution, with very little risk to them, in a large co-mingled asset pool providing risk-sharing. Indexation of benefits, both before and after retirement is contingent on funding health of plan. They can be multi-employer or single employer, and is intended to stay funded at all times.
The Nova Scotia Pension Review Panel pointed out in their report early this year that existing rules inhibit innovation, and they liked the idea of some multi-employer and jointly sponsored plans in the province that a jointly-governed with share decision-making, but with some contingent benefits. They suggested joint governance and transparency would create a lot less regulation. They also suggested a province-wide plan by an independent agency that would be voluntary but open to everyone, and could take over some orphaned pension plans or fully managed ones, as a target-benefit plan.
Alberta and B.C. had a joint commission, the ABC Report, which also criticized the inflexibility in pension plans, and said there was a need for someone to champion pension reform. Plans should state how they will be governed and their funding policies. Both are starting their own defined contribution provincial plans that will be available to everyone, with co-mingled assets and pooling of risk, and expenses of less than 0.4% basis points. Defined target benefits and indexation would not be available unless the funding was healthy. You have to act to opt-out, but it is not mandatory. An independent board would do the investing, similar to the Canada Pension Plan.
Prof. Brown worked for the Ontario Expert Commission on Pensions and made similar recommendations, stating that the rules under the Pension Benefit Act and Income Tax Act stifle innovation. He said it was a good idea to co-mingle assets because you get lower administration costs, lower investment expenses, can hire in-house expertise, and invest in some new types of plans, and pool some of the risks. The size they are considering are in the magnitude of $10 billion. If there was shared responsibility for the plan, they could have a lot less regulation. He suggested they should have consultation with retirees, which are not normally considered part of the plan, and provide more information more often. It could be used by single employers, but there would be co-mingling of assets, through an Ontario pension agency or one of the large existing plans like Ontario Teachers Pension Plan (OTPP), OMERS, or Hospitals of Ontario Pension (HOOP). Management fees would be kept down.
If none of this works, they would consider expanding the Canada Pension Plan. The similarity in findings between all of these panels suggests that there might be some merit behind the recommendations.
Looking for an Alternative
Mitch Frazer, a Partner at Torys LLP and adjunct faculty at UofT specializing in pensions, continued the discussion, focusing on the creation of a supplemental pension plan. He joked that pension law was a bit like the Maytag repair-person – people sit around and ask you questions without understanding what he does. Then suddenly because of the economy pensions are a big topic with considerable media attention.
He saw two major portions for reform – trying to fix the system in the way described by Prof. Brown, but also looking at alternative solutions. A lot of politicians are interested in this as well, and he noted that Glen Pearson and Doug Ferguson were in attendance.
Frazer provided some background behind pension alternatives. Canada’s aging population is foremost among this. By 2031, over 25% of the population will be older than 65, and only 13% of the population was over this age in 2005, almost a doubling of the aging population. There is also less participation in occupational pension plans, anything not a CPP, by private sector employees. Pension plan participation is just over 20% in Alberta and B.C., 25% in Ontario. As people are getting older and need some form of pension plan, there are less people contributing to them.
A lot of employers are terminating plans, or not offering it at all. His clients do not approach him these days about creating a new pension plan. The decline in the stock market has resulted in diminished retirement funds, so there is a decrease in personal savings rate coupled with record-high debt.
There have been some initiatives to address the problems, including the provincial reviews of legislation mentioned above. The Federal government has also initiated consultations on the federal regulatory framework, and there is increased commentary by professionals and academia. But only Quebec has been successful in considerably revising their pension plan, and they continue to revise it on an annual basis to keep abreast of changes, leaving all the other provinces behind. The one positive thing out of the economic crisis is that everyone is now focusing on pension plans, similar to the mid-90s and the focus on CPP reform.
The objectives of reform would be improving retirement income security and enhancing pension coverage. Pensions are going down, and we need to address that halt and figure out a way to prevent it from going further down. We can take advantage of economies of scale by pooling assets, and benefit from the management and expertise in larger plans top reduce administrative burdens and costs. We need to improve benefit portability and reduce risk and uncertainty.
The details of a supplemental plan are difficult to list, because there is no ideal plan, it is to be custom tailed for everyone. But a lot of the discussion around a supplemental plan is going to be what the features are about. There are some ideas of what it could consist of. There could be automatic enrollment of employers and employees, with an opt-out option. If the employer opts out, an employee could still participate by contributing. There could be an option for self-employed individuals to opt-in, or not. A minimum earnings threshold for eligibility, so the plain does not catch people with no discretionary income. All these features provide flexibility for the type of coverage offered.
Some of the possible features for contribution and participation include allowing employees to transfer the value of their current pension plan to a new plan, to provide some portability. You could allow an employee to continue to contribute to a plan even if the employer discontinues or terminates the pension plan. There could be a minimum contribution rate, with an option for additional voluntary contribution beyond that.
Governance and administration could also take different forms. It could be governed by an expert board with full transparency, so that participants would have confidence in the management of money. Confidence in the plan is essential. The reason why CPP works is transparency and their ability to provide confidence that their managed properly. Alternatively, some cost savings might be realized by a fully governmental body controlled plan with no options for contributions, even though it would compromise flexibility. Reducing administrative burdens by direct payroll contributions might work, but how do you deal with self-employed individuals? Efficiency comes with trade-offs.
The role of government in an alternative plan is also debated. They could the legislative and regulatory framework for operation of the plan, and probably should. They could provide investment at the initial stage to ensure a successful launch, or put out a tender for private bidders so that it doesn’t cost the government anything. But government involvement might also be needed to create confidence in the public.
Some of the criticisms of the alternatives are that since participation would not be mandatory, people would out and choose not to participate at all. Most people don’t have extra money. Even worse, employers could participate and then drop out of it when there is a recession. They could use it as a recruiting tool during good times, and lost it during bad ones. The plan may not require employers to match employee contributions, which reduces one of the key benefits for employees and encourages they to save.
If based on a defined contribution model, there is a big risk during a downturn of not getting the returns would would want. Although RRSPs can be held out as an alternative benefit to those without pension plans, there are enormous benefits that those excluded from pensions are missing out on as well. Some argue that creating a pension is the responsibility of each individual, and people should be able to make their own decisions about retirement.
Perspectives from the Community
The panel also included some comments from community members, to provide some perspectives from people who would be affected by pension reforms.
Janis Mark, a local teacher in London and President of the local chapter of the Congress of Black Women pointed out that with all the living expenses, it’s difficult for the average person to put away money. Many people get older and then realize they haven’t saved as much as they would have liked, and they wonder, “Is it too late for me?”
She also noted that most of what is being considered by the other panelists wouldn’t even affect our generation, it would be for our grand-kids. But this is also why for many citizens this is too much of a headache to figure out, and they don’t want to even worry about it.
Robert Sexsmith, a local retiree, added that workers everywhere feeling pressure. Governments have advocated responsibility in name of economic realism or competitiveness, but the reality is that the “war against pensions” has received less attention than it should.
People complain about taxes, and they complain when it rises. They understand wages. But pensions baffle us, and the implications of pensions is not something we understand.
Even before the recession it was clear that pensions were under the gun. Retirement benefits interfere with the labour market’s flexibility, and the willingness of people to take low-wage jobs. There is even serious discussion about raising retirement age to 75, and many of these people do not want to work.
Tax reforms not enough, and tax concessions don’t work because retirees are not paying taxes. The labour movement has argued for immediate improvements to old age security for this increasingly vulnerable population. He believes that nationalizing all private pensions would be a first step, because they are almost always underfunded, unlike public sector.
A Human Rights Perspective of Pension Reform
Michael Lynk, currently Associate Dean (Academic) at UWO, addressed the human rights and equality issues and dimensions of pension issues, which are very much becoming in the forefront in Canada and the world.
The Organisation for Economic Co-operation and Development (OECD) has produced reports and documents relating to the pension issue. So has the World Economic Forum (WEF), with a report looking at scenarios to 2030.
All Western societies are facing the same types of demographic and financial challenges, with a greying and shrinking workforce, with less resources. In Canada 2/3 of our workforce will not have a pension plan.
There are three major reasons why pensions are becoming topical in Canada:
- Charter issues and human rights legislation does apply to pension plans
- Age discrimination is becoming more prevalent in litigation
- Pension issues already play a discreet role in advancing human rights, especially in the area of sexual orientation
We already have an extraordinary human rights Canada. According to Lynk, we probably have the most advanced human rights system anywhere in the world, with major breakthroughs in gender issues, race, family status, and sexuality. This is something to revel in. Even Europe laws on human rights is still about 5-15 years behind us.
However, one of our major deficits has been in age discrimination. Most of the case law has focused on mandatory retirement. Virtually every case at the Supreme Court of Canada through the 90′s were unsuccessful, based on the “lump of coal” trade-off. Retirement allows others to progress in society by making room for others, and was an exception in respect to other human rights cases. Most of the cases also assume a declining ability with older age.
Unions did have the resources to fund further litigation, but just weren’t interested in it. They often had seniority clauses that they felt provided adequate protection. Same-sex benefits cases at the tribunal level started to side-step the stance taken by the Supreme Court, and by the late 90′s the Court started to agree with them. This was one example of how litigation was able to advance interests for these types of benefits.
But the court was unwilling to apply these broader tests developed in this period for disabilities to age discrimination cases, despite the 1999 B.C. v. BCGSEU ["Meiorin"] case that said we have to make human rights standards higher. The test in Law v. Canada imposed a higher and more difficult threshold in respect to Charter litigation.
A more recent case in N.B. v. Saskatchewan Potash dealt with the term “bona fide pension plan,” and whether the appropriate test was Meiorin or Law. The decided with the more modest standard, and said the differential standard used in N.B. did not offend the Charter.
Although Lynk was discouraged that the Court has left age discrimination behind, there are a range of questions that need to be asked on how we structure our pension plans. He was pessimistic in the way age discrimination has been treated in the past, but he was optimistic that the Court or legislatures were going to catch up and enforce a more broader, enlightened, and liberal view towards age discrimination. It would be impossible to keep building a higher silo of other human rights, and keep out other forms such as age discrimination out of it.
He reached this conclusion because:
- Average age in Canada is steadily increasing. This cohort of aging population is the most educated in our history, but also most healthy, and some will want to continue to work.
- Pension benefits are rising to the forefront. There is a huge amount of money involved in this, and it will continue to be an important policy and litigation issue. The sheer volume of cases will eventually force the issue.
Lynk pointed to one upcoming case before the SCC, Withler v. Canada, dealing with supplementary death benefits, but with the potential to provide a wider interpretation for pension benefits. Survivors of spouses receiving benefits would decrease by 10%, and the question was whether it is discrimination if the benefits are decreasing as people get old. The trial judge ruled against claimants, and the B.C.C.A. decision upheld the decision. The dissent held that it was a s. 15 violation on equality, and not justified by s. 1, because an improper distinction was made.
The decision is expected some time in March 2010, and will likely be published about a year from now. Even though the case is a small and discreet issue, it could determine the direction of age discrimination for future cases to come.
A Different Kind of Employment Discrimination
Sometimes they can kill you softly with that love.
Blawg Review #228
If you’re just starting law school, law blawgs can be your best friend. In addition to this site, here are 99 other blog posts that you should read to help prepare for your adventure. It won’t help you though if you’re a judge about to be tested.
Most law students want to be in the top 10-15% of their class, and there are career opportunities that depend on that. Ken DeLeon of Top-law-schools.com provides some tips for success in law school, including a handy flowchart on how to prepare for your law school exams. But keep in mind that the end of the billable hour might result in some changes to your legal education, and law students have different learning styles than the rest of the population.
Still applying to law school? An undergraduate degree in physics or math might be your best option to get a solid LSAT score. Remember that these days a law career is considered a risky option, and there are lawyers in Jersey actually working for free. Where else is success defined by more work (even for less pay), and not more recreational or family time? Larry Ribstein still thinks law school is the cool choice. But is it really worth it?
On the other hand you could elect to skip your classes, get intoxicated regularly, sleep with all the members of the opposite sex, gain a reputation as being a total douche bag, and then score a book and movie deal.
Introducing Tucker Max – asshole extraordinaire – a graduate of Duke Law that claims assholes finish first.
An inspiring personality, certainly, and an approach that John Infante of Fearfully Optimistic would definitely disagree with. It does make you wonder how many Dukes are faking the Daisy to hazard “celebrity bias.” The Bitter Lawyer has an exclusive interview with Tucker that is, at the very least, amusing.
Then again, “skipping classes, playing basketball, doing cocaine and getting drunk” might help you become President of the United States – but eventually someone might start asking for your law school transcripts. None of this is likely to come up during the President’s special advice to students tomorrow (Sept. 8). An open and transparent government, perhaps, but not that open. Reality check: the last refuge of the persecuted crack smoker may not be in law school.
Hey, “Some people snort cocaine, others snort religion,” and the latter is not necessarily better. The Exit at My Legal Fiction suggests wearing lipstick as a law school study aid, for some very compelling reasons. If you’re a missionary in Kenya, please don’t vow to go to law school out of religious convictions, unless you’re going to a low-ranking religious-affiliated law school. Happy Belated Todd, but I won’t be paying $25,000 for dinner any time soon.
Still, your biggest youthful indiscretion might be going to law school itself (and graduating at the bottom of your class hardly precludes success). If your indiscretions precede law school and include a criminal record, there are some disclosure issues you should consider. Using stolen Social Security Numbers to steal student loans for partying, with Tucker, Todd, or otherwise, probably isn’t a great idea. Assistant Deans at law schools? Not a good idea either.
Robert J. Ambrogi also tells us about Branigan Robertson of Chapman University School of Law, who won $10,000 for this video in the My Inspiration video contest:
These law students are doing better than a lot of lawyers these days. When life gives you lemons (or a recession), you should just make lemonade. Dan Markel is asking, what kind of juice are you making?
On the other hand, if you’re looking to avoid personalities like Tucker Max at all costs, you might be interested in Above the Law’s Douchiest Law School Contest.
No surprise that Harvard and Duke are currently heading the pack as finalists. Also check out Paul Caron’s review of U.S. News Law School Rankings for Judicial Clerkships, which includes data from Brian Leiter’s rankings. If douchiness turns you off of Yale and clerkships are really important to you, the University of North Dakota might be a good alternative. However, great credentials don’t always make more satisfied lawyers, because these guys tend to be plagued by that green-eyed monster.
Charon QC’s musings might be useful in determining if a “douchy law school” is worse than a “McDonalds of law schools,” while Dan Slater of the NYTimes suggests just locking the doors to all law schools because there are too few hiring positions. Still having a hard time picking a law school? The iPhone app Law School 100 is free until midnight tonight (Sept. 7). Study aids are becoming more interactive, with West’s new Interactive Case Series now linking to directly to law review articles cited in the case series.
Keep in mind that law school is different than undergrad, and you should probably clean up those social networks you’re on. After all, you wouldn’t want your mom witnessing you pulling a Tucker Max, and some employers might require you to submit your social media for a background check. Social media is also being increasingly being used in the courtroom, and no, the judge doesn’t really want to be your “friend.” Don’t get rid of that social media entirely though, because “People don’t find lawyers in the phone book… They find them through TV ads or friends or by searching the Internet, including blogs and social networking tools.”
Apparently what clients really want from their lawyer is to “feel the love,” so if someone comes to your office complaining they hurt their “tushy bone,” try not to laugh too hard. Be forewarned though – that volenti non fit injuria doctrine you learn in Torts class also applies to contracting Herpes Simplex I from wrestling, also known as Herpes Gladiatorium.
That’s probably not what Lauren in Law School had in mind when she suggested gladiator games as an alternative to On Campus Interviews (OCIs). You can get a list of the guys in your university with herpes from the new Campus Gossip site just to be on the safe side.
Although the number of followers you have on Twitter is no sign of of expertise or influence, it might land you a job (or lose it) with a firm or get you published, even if Perz Hilton decides to sue you for defamation. No “love” (or wrestling) for him, sorry. Some people do take Twitter seriously, perhaps too seriously.
Eric Goldman’s interview with David Lat highlights the importance of students networking during a crisis. Dennis Jansen also thinks that networking with your peers might be useful, but consists of more than “beaming your peers with business cards or mass-adding people on Facebook and LinkedIn.” As popular as WordPress may be for blogs, it just might not be for your law firm, and you even might be held liable for content on your site to a tune of $32.4 million.
The Law Society or State Bar is probably not going to like it if you steal other people’s Twitter content and pass it off as your own, like Melina Beninghoff did . Stealing content doesn’t take brilliance, and it barely takes effort. What is clever is coming up with this CraigsList listing from Los Angeles. But is stolen content any worse than fake content?
Today is also Labour (sic) Day in Canada and the U.S. That’s the Canadian spelling, because Labour Day did originate in Canada in 1872 with the Trade Unions Act, which legalized unions. The United States followed in 1882 with informal observance in New York City, and by 1894 it was observed by 23 states through legislation. Still, it was the American President Lincoln, not a Canadian, who said in December 1881,
It is assumed that labor is available only in connection with capital; that nobody labors unless somebody else, owning capital, somehow by the use of it induces him to labor…
Labor is prior to and independent of capital. Capital is only the fruit of labor, and could never have existed if labor had not existed.
Although most Canadian law schools start the day after Labour Day, many Americans start a week or two earlier. According to Blawg Review 122 it seems that in Dublin they start as late as October, but it might just be that everyone (students and profs) are recovering from prolonged hang-overs.
Labour relations are highly relevant for this edition of Blawg Review, since law professors at the University of California are considering a walk-out despite having the “best public education in the world.” Perhaps they could use this list of 24 alternative mediation dispute resolution sites to read.
Maybe they should just settle this all over a beer. Then again, those Canadian brewers are at it again with their trade-mark litigation! Next time someone tells you “I Am Canadian,” you might want to do your due diligence.
The big thing up here in Canada right now is Copyright Consultation Reform. Although over-reaching legislation is great for the lawyers, it does little for end-users of copyright material. If you’re one of those folks with a keen attention for cyberspace cases, this new blog following the 10 most important U.S. cases will probably be of interest.
But the big thing about Canada in the U.S. right now seems to be our healthcare system, which we’re rather partial to, despite what they mights say (Ignore those pesky suits). Send us your gladiators with herpes, and your perdurable impetus. All that talk over at Volokh about a “lottery system” can only be described as nonsense.
(At 1:53 Glenn Beck repeats lottery libel, and at 3:21 yells at a caller to get off his phone, “you little pinhead,” for not listening to the “facts.” The remix is even funnier.)
Although she acknowledges that healthcare reform is needed, Althouse has 10 things she hates about it. Change is always hard due to “status quo bias.” Madeleine Begun Kane has a limerick she wrote just for the spats over healthcare in the U.S. (watch your pinkies!):
“Majority rule is just great,”
Said Gregg in the drilling debate.
“You’ve got 51 votes,
Then you win.” Check his quotes.
Yet 51 Dem votes don’t rate.
Seeking medical treatment is probably the first thing you should do after a car accident, irrespective of whether it occurs in Canada or the U.S. Passen Law provides 9 other things you should do, including, of course, getting an experienced personal injury lawyer.
Another thing we have in Canada absent in the U.S. is a prohibition against the death penalty. Perhaps the fact that 45% of wrongful convictions in capital cases are based on jailhouse snitches has something to do with it. Mark Bennett of Defending People points out the interesting observation that a Texan executioner appears to be committing murder by that state’s law,
…would you participate in a death penalty trial, knowing that, for the rest of your life, with the turn of a tide of public opinion you could be prosecuted for making what you believed to be the right decision? You may be betting your life.
Do you think that employment contract with the State would protect you? Don’t count on it, as Jeffery I. Gordon mentions that most contracts are too brittle to withstand scrutiny, even if those FirstDrafter clauses look like they can do the job.
On the other hand, if your employment contract follows an affirmative action plan that is not remedial and narrowly tailored for past discrimination, it may constitute unlawful discrimination. We’re still not sure if a stripper constitutes an employee or an independent contractor in Employment Law class.
More guys in that class would probably express their anticipation for seeing Jessica Alba as the stripper-law student Nancy Callahan in the upcoming Sin City 2 if they weren’t concerned about objectifying women.
Don’t lose any sleep over it, unless you’ve sexually assaulted employees and are settling for $1.72 million. Be careful though – the risk of contracting gladiator herpes (and sins) rises exponentially when wrestling with strippers. You could also get robbed or raped.
Personally, I would be okay with any affirmative action that sought to get everyone but Tucker Max and any potential douches into my law school. Nancy Callahan might get a pass, as long as she doesn’t hook up with Tucker while she’s there.
Special thanks to David Shulman for editing on this piece.
That’s it for this week’s edition! Remember: Blawg Review has information about next week’s host, and instructions how to get your blawg posts reviewed in upcoming issues.
Facebook Issues in the Workplace
Courtesy of Solicitr and passiveaggressivenotes:
Issues: Workplace productivity, sexual harrasment in the workplace
Remedy: Admonition
Issues: Disgruntled employee, poor performance, disrputive in the workplace
Remedy: Termination
North American Leaders’ Summit Kicks Off in Mexico
Over the next couple days Prime Minister Harper, President Obama, and President Calderon are meeting in Guadalajara [From Arabic, وادي الحجارة , "rocky riverbed"], Mexico for the North American Leaders’ Summit.
The meeting is part of the Security and Prosperity Partnership of North America, which seeks to address trade and security issues among the NAFTA partners.
From my vantage point in Guadalajara, the not-so-secret service with earpieces are overshadowed by the armed soldiers in camouflage (literally) hiding in the bushes outside my door. President Calderon is staying in my hotel (“No, yo no trabajo aquí. Soy una estadía aquí.”), just a few dozen meters from me.
There’s good reason for the security, with anti-NAFTA protesters greeting their arrival. Some organizations are even hosting parallel sessions highlighting the failures of NAFTA. The major grievances include corn and bean imports that have hurt Mexican farmers, and the ongoing trade-war over Mexican truck drivers.
Controversy Continues, Even after Strike Resolution
Toronto City Council voted 21-17 this week to endorse a new contract with the 30,000 city workers who have been on strike for 39 days.
And although the garbage is being picked up, a political stink is being raised about how the situation was handled. The strikers themselves suggested throughout the strike that the public should be blaming the political leadership, with some claiming he has alienated his key supporters in the labour movement.
But the biggest emerging controversy out of the new agreement is that workers on strike actually gained sick days while on the picket line.
Although Councillor Denzil Minnan-Wong said it was a “a slap in the face to Torontonians,” deputy mayor Joe Pantalone suggested in was a slightly more complicated picture, with City spokesman Kevin Sack saying these type of agreements were standard.
The backlash potential in any public worker strike has some questioning the roles of unions in our society today.
Fortunately this summer was not as hot (and messy) as the 2002 strike. But many are hailing the residents of Toronto as the real heroes of this latest local labour dispute for the way they demonstrated patience while both sides finally came to an agreement.
