Legal Feeds Blog
Are law firms really innovating or is it all talk? That is a common debate in the profession these days and Blake Cassels & Graydon LLP has just launched a new challenge to move beyond the noise to what they hope will be real measurable innovation.
|Carla Swansburg’s team at Blakes is working with Law Made to develop a new product that they hope can be used by Blakes, clients and possibly other law firms.|
“There is a lot of … talk about how law firms aren’t really doing anything,” says Carla Swansburg, who is the director of practice innovation, pricing & knowledge at Blakes. “I think this is a really good example [of how] some law firms are actually … taking the steps to do stuff that is a little bit different, and a little innovative, but haven’t necessarily historically talked about it a lot.”
Swansburg’s team at Blakes is working with Law Made, a legal incubator in Toronto, to develop a new product that they hope can be used by Blakes, clients, and possibly licensed to other law firms.
Blakes went through an extensive internal discussion about what kind of end product they wanted to see with the challenge, to avoid the endless brainstorming with no tangible results that can occur in “hackathons” and other initiatives meant to spur innovation.
“We are kind of bypassing that route and saying we are going to go out there, we are going to frame the problem, invite solutions and then actually, hands on, roll up our sleeves, and work with the people who are building the tool, to create something that is not necessarily marketable but really gives us a tangible solution that we have helped design,” says Swansburg.
Blakes provides applicants with business requirements to ensure they know what is expected. Swansburg says the solution needs to be “…taking a pre-defined set of legislative provisions, so on a topic for example like consumer credit, and finding a way to automate the creation of reports around changes.”
The reports would need to track relationships between regulations and keep up to date by using a technology solution like machine learning, artificial intelligence or natural language processing to collect this information and provide clear, structured and actionable reporting on regulatory changes.
Blakes and Law Made will provide the winning entry with free legal advice from Blakes, mentoring from Law Made and a paid internship that includes work space and a stipend for up to six months.
Swansburg says she expects entries to come from the startup community, and that some initial applications have already come from Canada and the U.K., with some expressions of interest from the U.S., including a law school centre for law and technology.
There will be a two-step process, with the first round of applicants whittled down to around two to five finalists by a jury from Blakes, Law Made and client and industry participants.
Once the finalists are selected, they will make their pitch to a different jury and this will likely involve a beta test of the interface and an evaluation of the user experience.
They expect the winner to be notified in the late fall of 2017.
While Blakes will not necessarily have equity in the final product, Swansburg says that will depend on “what others come up with.”
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B.C.’s Civil Resolution Tribunal, which handles strata disputes online, is poised to launch a second online system for settling disputes between small claims litigants.
|Civil Resolution Tribunal chair Shannon Salter sees a growing trend towards providing Internet-based delivery of dispute resolution systems and legal advice.|
“We will likely start with a smaller amount and gradually increase in time,” she says, which will also permit the tribunal to ramp up staff as the case volumes increase. Small claims courts in B.C. handle up to 11,000 cases annually.
Salter said the ability to resolve small claims disputes online extends the mediation efforts B.C. initiated for small claims and family disputes as an alternative to costly and time-consuming court litigation. “We have the opportunity to build upon the Court Mediation Program,” she says, as an online initiative will reach throughout B.C. Currently, the small claims mediation program only has five registries (Vancouver, North Vancouver, Surrey, Nanaimo and Victoria) and handles only claims of up to $10,000 except for Vancouver.
Salter said that only two mediation program registries are outside the Lower Mainland, making it difficult for rural residents to access the program’s mediation. The online tool can be accessed from any B.C. point that has Internet and is especially useful for individuals living in remote or rural areas, as individuals do not have to commute long distances, miss work, and arrange child care.
The online tool provides other benefits such as providing self-represented litigants, who cannot afford a lawyer, with legal information lessening confusion over the issues and process. Also, in many outlying areas of B.C. a lawyer shortage exists and finding legal advice can be challenging.
The small claims dispute tool is riding on the success of the CRT’s strata dispute system launched in July 2016 on its website becoming Canada’s first such online site. The strata tool has had 4,000 hits since its launch with users running the gambit from the curious to individuals seeking legal information to solve their own disputes to the 230 cases that have moved forward to mediation or adjudication.
“The model is about bringing the justice system to where people are and to make it simple to understand,” says Salter, who used three language experts to design a style guide that ensures all legal information is rendered to a grade six reading level. As well, the government forms have also been stylized to be easy to understand and fill out.
Salter said the strata software tool has been designed as a “a guided pathway” that takes individuals with a complaint through bite-sized pieces of legal information that can help determine whether their issue is a legal complaint, what are their rights and provides some help in how to settle the dispute (pamphlets and letters are available online). The process is geared towards self-resolution of disputes. If the individual is not able to resolve the issue, CRT can provide the mediation and adjudication.
The payback of a tool that is user-friendly and informative, says Slater, has been office staff spend less time answering questions or searching for more information and can spend more time dealing with individuals who may be illiterate or have language issues.
She said the Internet delivery model is geared to be user-friendly for both strata and small claims users. “We know that 92 per cent of people are on-line every day in B.C.,” she said. “People email, text and Google and so we are not asking them to do anything that is more difficult.”
The CRT’s first six months of operation has shown only two requests for non-email communications, fewrequests for hard-copy forms and individuals using the strata tool after work. “We found that 45 per cent were filling out their applications outside of work, typically on weekends or in the evenings,” she says, adding it is reflective of how the on-line tool is adaptable to user needs.
Salter said the small claims tool will be more complex than that which serves strata users as only a few statutes pertain to strata disputes. Small claims can affect a breadth of statutes and as case volumes increase, more information will be detailed on the website as legal expert opinions and information is added.
The CRT staff form an interdisciplinary team, with several lawyers. The CRT’s executive director and registrar is lawyer Richard Rogers. There are seven resolution support clerks who assist individuals attempting to resolve their own disputes. Five facilitators or case managers mediate disputes and are led by lawyer Kandis McCall, director of case management.
“In addition, there are 16 part-time tribunal members who are also lawyers from throughout the province,” she says, adding that these members, writing adjudication decision have gone through sessions to ensure decisions are written in “plain language — which can be a challenge for lawyers.” As well, facilitators have been briefed on how to collect information in disputes that have to go forward to adjudication. “Administrative law principals kick in,” she says as parties have the opportunity to exchange information and cross examine via conference calls.
Salter believes that the model of online tribunals and the Internet to provide access to justice and legal information will be a deepening trend. “MyLawBC offers solutions for separation agreements (using a Dialogue Tool) and help with a will,” she says. While not a tribunal, the Legal Services Society website does offer legal help for those unable to afford or access a lawyer. The B.C. Residential Tenancies Branch, she said, is also using the Solution Explorer software to field and resolve landlord and tenant disputes.
“We have to find creative new ways to connect people to the services they need and one way is to provide access justice on line,” she says.
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|Alastair Clarke says ‘refugees are an economic positive’ for Canada.|
A U.S. federal judge suspended the order last week, and now, the government has a chance to submit legal briefs in support of Trump’s intended policy changes. The battle may end up before the U.S. Supreme Court.
Manitoba has garnered attention since CBC reported that more than 400 people were intercepted near the U.S.-Canada border at Emerson between April to December 2016.
“I think there’s just a general impression that Canada is a safer country than the United States, and they will have more support here, and that [they] will have a better life,” says Alastair Clarke, founder of Clarke Immigration Law in Winnipeg.
Due to Trump’s changes, the Canadian Association of Refugee Lawyers last week was “calling on Canada to immediately suspend the Safe Third Country Agreement.”
"Under the STCA, those who try to enter Canada through the U.S. to make a refugee claim at the border are returned to the U.S. regardless of whether they will or already have had access to asylum in the U.S. The U.S. and Canada have considered one another “safe” for asylum-seekers,” said a CARL news release.
“The STCA creates a North American approach to refugee approvals. With President Trump’s Executive Orders, the U.S. is unilaterally changing the terms of that approach, with potentially disastrous consequences for vulnerable asylum-seekers.”
In Winnipeg, Clarke works with groups that have housing set up and are working “as hard as they can to bring as many people” as they can support.
“The government can’t keep up with the demand,” says Clarke, adding that the biggest legal hurdle he’s grappling with is the STCA.
“Unless the refugee claimant is able to fall under one of the exemptions listed in the agreement, then they are denied at the border,” says Clarke, who says most people who are successful are able to do it due to exemptions related to having family in Canada.
Clarke has handled about 30 to 35 files involving refugee claimants since January 2015, from countries such as Haiti, Burundi, Ethiopia, Eritrea, Somalia, and Nigeria.
“I think more people are coming based on the rhetoric coming from the United States. It’s partially Trump, but I mean Trump was elected, because in general, there is an anti-refugee sentiment in the United States,” he says. “It’s not just him, but I think — generally speaking — there is less of an appetite for refugees in many parts of the United States.”
Ghezae Hagos of the Manitoba Interfaith Immigration Council said that since October 2016, the non-profit organization has come into contact with 117 people who have asked for protection. That includes 39 people in January 2017. Hagos said that number was “certainly much bigger than what we had in the last few years.”
Paul Hesse, immigration lawyer and partner at Pitblado LLP in Winnipeg, helps clients with immigration matters such as work permits and study permits, and obtaining permanent residency. He estimated he’s had double the amount of inquiries he normally receives since Trump was elected.
“It’s a mix in terms of why they’re doing it, in terms of their profiles,” he says.
“Some would be people who, I believe, are vulnerable to removal from the United States who are looking for alternatives, others are IT workers who are looking for a more friendly long-term solution, concerned about permit rules changing in the United States, and looking at other options.”
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Donald Affleck, a founding partner of Affleck Greene McMurtry LLP, has died.
|Donald Affleck has died at the age of 77.|
After growing up in the Ottawa Valley, Affleck graduated from the University of Toronto’s Law School in 1964 and started his law career at Fasken Calvin MacKenzie Williston & Swackhamer.
He later went on to co-found Kelly Affleck Greene with other partners that left Fasken together in 1992, and later formed Affleck Greene McMurtry in 2003.
Peter Greene, a fellow founding partner and friend of Affleck, described him as a deliberate and thorough lawyer who would dive into the details of a case even in his later years as a senior partner. He would sift through boxes of documents and make notes when others might have left such tasks to paralegals or more junior lawyers.
Greene says this made Affleck a great mentor for younger lawyers.
“Don would dig into the documents, get the facts and he’d know them. He was a teacher from that perspective for our younger people,” he says.
Greene says he would warn younger lawyers who worked with Affleck on cases to know their facts.
Greene met Affleck at Fasken in the late 1970s and says the firm taught them to make sure to know the facts of a case above all else.
“It was ingrained in us that facts win cases. Law doesn’t,” he says.
While clients might demand an opinion on their case immediately, Greene says Affleck was extremely analytical and would often take a few days to give his opinion on a case if it was going to lead to litigation.
Affleck appeared before trial and appellate courts and was an arbitrator on the softwood lumber anti-dumping case under the North American Free Trade Agreement.
He also was counsel to the standing committee of the House of Commons on Finance, Trade and Economic Affairs when the federal government was considering amendments to competition and banking legislation in the 1970s, and later served as chief counsel to the Royal Commission on Newspapers from 1980 to 1982.
He co-wrote Canadian Competition Law — a widely referred to resource in the area — with Wayne McCracken.
Greene says Affleck was a “class act” that would rarely use profanity.
“I don’t think anybody could dislike him. He just got along with people,” he says. “He was just a likeable guy.”
The Church of the Redeemer will hold a memorial service for Affleck at 162 Bloor Street West in Toronto on Saturday from 3 p.m. to 5 p.m.
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|Renu Mandhane, chief commissioner, Ontario Human Rights Commission.|
On Feb. 1, the Ontario Human Rights Commission released a policy statement on medical documentation that is needed when disability-related accommodation requests are made. The policy statement refers to the OHRC’s updated policy on the duty to accommodate disabilities and protect the disabled against discrimination that was released last year, noting the role of medical professionals in the accommodation process and the type and scope of medical information needed to give employers.
“One of the obvious big issues for employers especially is what can they ask employees to provide when they’re seeking accommodation?” says Renu Mandhane, chief commissioner of the Ontario Human Rights Commission. “The new policy statement is meant to strike a balance between privacy and dignity [of the person seeking accommodation] and the need for the employer to understand functional limitations, and what they must accommodate.
“I think that a lot of respondents — service providers and employers — they don’t know what they’re allowed to ask for,” says Mandhane. “Our policy [since 2016] says there’s a duty to inquire. So, if an employer believes there may be a disability, the employer may ask about the disability-related issue.”
A duty to inquire about accommodation needs was created under the OHRC’s revised policy of 2016. “Accommodation providers must attempt to help a person who is clearly unwell or perceived to have a disability by inquiring further to see if the person has needs related to a disability and offering assistance and accommodation,” according to the OHRC’s Policy on ableism and discrimination based on disability.
The type of medical information that accommodation seekers may generally be expected to provide to support an accommodation request includes:
• that the person has a disability
• the limitations or needs associated with the disability
• whether the person can perform the essential duties or requirements of the job, of being a tenant, or of being a service user, with or without accommodation
• the type of accommodation(s) that may be needed to allow the person to fulfil the essential duties or requirements of the job, of being a tenant, or of being a service user, etc.
• in employment, regular updates about when the person expects to come back to work, if they are on leave.
Although an employer is entitled to receive this type of medical documentation from a doctor, it is not entitled to “ask for more confidential medical information than necessary because it doubts the person’s disclosure of their disability,” the policy states.
“Where more information about a person’s disability is needed, the information requested must be the least intrusive of the person’s privacy while still giving the organization enough information to make an informed decision about the accommodation. . . .
“Generally, the accommodation provider does not have the right to know a person’s confidential medical information, such as the cause of the disability, diagnosis, symptoms or treatment, unless these clearly relate to the accommodation being sought, or the person’s needs are complex, challenging or unclear and more information is needed. . . . ”
However, “If the person does not agree to provide additional medical information, and the accommodation provider can show that this information is needed, it may be the case that the person seeking accommodation could be found to not have taken part in the accommodation process and the accommodation provider would likely be relieved of further responsibility.”
The OHRC’s Policy on ableism and discrimination based on disability policy on ableism and discrimination based on disability, released in September 2016, updated the policy and guidelines on disability and the duty to accommodate of 2001; at 99 pages, it is two and a half times as long as the version released 15 years earlier. While the 2001 policy concerned itself with disability accommodations in employment, the updated policy also looks at case law relating to disability discrimination and accommodation in housing and schools, including universities, says Mandhane.
“We’re trying to acknowledge that in the last 15 years . . . we have seen peoples’ request for accommodation extend beyond the employment sector,” she says. “We want to make sure people are being accommodated consistent with the [Ontario] Human Rights Code. Obviously, what we consider a disability has changed a lot in the last 15 years.”
Today, there is increased recognition of mental health problems and chemical sensitivities including those that can prompt acute allergic reactions such as anaphylaxis, Mandhane notes. “These have been recognized as disabilities attracting attention under the Code. . . . We also bring an intersectional lens to unique disabilities” faced by elderly, trans and racialized people, she adds.
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