Monthly Archives: July 2009

Ontario Apology Act Now in Force

Posted in: "All, Administrative Law, Legalese Dictionary by Admin | No Comments Friday, July 17, 2009

Sorry may no longer be the hardest word, at least in Ontario.

A while ago I posted the story “Sorry Seems to Be the Hardest Word,” on the (then) proposed Apology Act.* I’m glad to report that the Act has been passed and has been in force since April 23, 2009.

In a nutshell, the act “provides that an apology made by or on behalf of a person in relation to any civil matter does not constitute an admission of fault or liability by the person or an acknowledgment of liability in respect of a claim in relation to the matter, does not affect the insurance coverage available to the person making the apology and is not admissible in any judicial or quasi-judicial civil proceeding.”^

The Act stipulates that in civil proceedings, administrative proceedings or arbitrations, evidence of apology is inadmissible as evidence of fault or liability in connection with that matter.

However, there are exemptions – situations in which the Act is not applicable:

  • If the apology is given during testimony at a civil proceeding, then the apology is admissible as part of the testimony.
  • The Act does not apply to criminal proceedings.

In fact, section 3of the Act provides that “Nothing in this Act affects the admissibility of any evidence in a criminal proceeding, including a prosecution for perjury, or a proceeding under the Provincial Offences Act, or the use that may be made in the proceedings referred to in subsection 2 (3) [civil proceedings, administrative proceedings or arbitrations] of a conviction for a criminal or provincial offence.”

  • The Act does not affect the calculation of the limitation period under the section 13 of the Limitations Act.#

The legal community in Ontario largely welcomes the enactment of the legislation.

Says Mary Jane Smitt, a litigation partner with Blakes, Cassels & Graydon LLP in Toronto: “Although there will be lawyers who will be cautious about advising clients to apologize, … one of the big culture shifts in the law over the last decade has been the consideration of other means to resolve disputes. Apologies protected by the legislation is one more tool in this arsenal.”+

Perhaps the spirit of the Act is best captured by the spokesperson for the Ontario Ministry of the Attorney General, Brendan Crawley, who said “Saying sorry for an accident or wrongdoing is the right thing to do.“**

I couldn’t agree more.

^Explanatory note, extracted from the Bill as introduced.

*S.O. 2009 c. 3

#S.O. 2002, c. 24, sch B

+Donalee Moulton, “Legal profession not sorry to see apology legislation” The Lawyers Weekly (17 July 2009) 1

**Ibid.

Note: This article does not constitute legal advice. It is not offered as a  substitute for the legislation. The legislation may have been amended since the publication of the article.

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Pet Travelling Made Easy – Pet Airways Take Off!

Posted in: "All, Animal Welfare, Business Development by Admin | No Comments Friday, July 17, 2009

Generally I only blog about law related stuff. However, a story about Pet Airways piqued my attention, and I’d like to share with my readers.

Billed as the first pet-friendly commercial airline, Pet Airways is a flight operator that flies pets in the main cabin, rather than in the cargo area.

  • How it works:

You drop off your pet at the airport “pet lounge” and then check-in for your pet. Your pet gets to hangout at the lounge and takes a potty break before the flight. Your pet then gets boarded into one of the secured pet carriers (provided free of charge) in the main cabin. a pet attendant checks on your pet every 15 minutes or so. The plane is well-lit and well-ventilated. Upon arrival your pet can be picked up at the destination airport’s pet lounge.

  • What if the flight is delayed or canceled?

Like human air travel, delays and cancellations happen. If the flight is delayed shortly, your pet gets to hangout on the plane or in the lounge. If there’s a long delay, your pet is board at the nearest affiliated pet resort at the company’s expense. Just like human travel.

  • Meal and entertainment

The “pawssengers” all face the aisle, so they get to watch their neighbours for entertainment.(Dogs, cats and others are put in separate areasqueasy from motion sickness. In fact, the company vet suggests that you don’t feed your pet four hours prior to flight.

However, if the pet attendant sees that pawsengers badly need some water or something to chew on, he or she will give them a little to make them feel better.

  • Can I fly with my pet?

No. This is a pet-only airline.

  • What animals are restricted?

Humans.

For more information, visit the website at www.petairways.com.

***

Although the operator is currently U.S. based with few restrictions (other than human passengers), I remind readers that the Province of Ontario restricts or prohibits the importation of certain animals and endangered species, including pit bulls.

Would be passengers (or rather, “pawssengers”) should have their human guardians comply with local animal importation restrictions.

Note: This is not an endorsement. (Although it sounds almost like one.)

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A Brief Note on Personal Information and the Internet

Posted in: "All, "Brief Note" Series, Business Development by Admin | 1 Comment Wednesday, July 15, 2009

If you’re into social networking websites, you’ve probably seen a widely circulated list of questions, resembling this one I recently received.

  1. What time did you get up this morning?
  2. How do you like your steak?
  3. What was the last film you saw at the cinema?
  4. What is your favourite TV shows?
  5. If you could live anywhere in the world where would it be?
  6. Favourite place to eat?
  7. Favourite dressing?
  8. What kind of vehicle do you drive?
  9. What are your favorite clothes?
  10. Where would you want to retire?
  11. Favorite time of day?
  12. Where were you born?
  13. What is your favorite sport to watch?
  14. Are you a cat or a dog person?
  15. Are you married?
  16. Always wear your seat belt?
  17. Been in a car accident?
  18. Any pet peeves?
  19. Favourite ice cream?
  20. Favourite fast food restaurant?
  21. Do you own or rent?
  22. How many times did you fail your driver’s test?
  23. What’s your porn name?

As you can see, several sensitive questions regarding personal information were embedded in this questionnaire. While it seems harmless to share “whether you are a cat person or a dog person,” answers to some of the questions have the potential of being misused for ID theft.

The social networking sites invariably encourage users to build their network. Hence, a friend of a friend of a friend whom you’ve never met may end up with access to your profile and information. If personal information is obtained by rogue individuals, you have virtually no control over how it may be used.

For example, many institutions have security questions in place such as “What’s your favourite ice cream?” (question #19) or “What’s your favourite sport?” (question #13)

Interestingly, the most incriminating question, in my opinion, is #23, “What’s your porn name?” As the unwritten rule goes, your porn name consists of your first pet’s name as the given name, and the name of the street that you grew up on (or your mother’s maiden name) as the surname. The answer to this one question often holds two or more keys to security questions at major financial institutions.

Question #8 asks what kind of car do you drive. Question #12 asks your birthplace. Question #15 asks whether you are married. Question #17 asks whether you’ve been involved in a car accident. Question #21 asks whether you own properties.

By combining the answers to the questions above with other personal information that’s already available online, it’s indeed possible for someone to fraudulently fill out a seemingly legitimate line of credit application on your behalf.

The consequences may include the sale of your email or home address to commercial mailing list companies, or even ID theft.

So, are you a dog person or a cat person?

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PSWLaw Proudly Supports the 2009 Police Games

Posted in: "All by Admin | No Comments Tuesday, July 14, 2009

I’m pleased to announce that PSWLaw is a proud sponsor of the 2009 Police Games, hosted by the Toronto Police Amateur Athletic Association.

The event takes place on Saturday, October 17, 2009 at the Rogers Centre. The proceeds of the event go to the Toronto Police Widow and Orphan Fund.

PSWLaw gives back to the community.

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A Brief Note on Judicial Pragmatism and Public Policy

Posted in: "All, "Brief Note" Series, Family Law, Legalese Dictionary by Admin | No Comments Wednesday, July 8, 2009

In the post-911 era, courts in Canada and in the U.S. have shied away from utilizing public policy in their jurisprudence. For example, the current chief justice of the U.S. Supreme Court contends that if “a case can be decided on narrow grounds, it should be.”^

In Canada’s Reference re Same-Sex Marriage,* the federal government posted four questions to the Supreme Court on the legality of same-sex marriage.

As it was a contentious social issue at the time, the Court decided to answer the questions on narrow and technical grounds: Yes, the Parliament has jurisdiction to legislate same-sex marriage, and yes, the proposed same-sex marriage is consistent with the Charter.

However, when asked whether the opposite-sex requirement for a civil marriage would be consistent with the Constitution, the Court declined to answer as it was inappropriate.

When the reference was released, the Court’s answer was considered “solid,” as the questions were answered on narrow grounds without reference to “public policy.” Accordingly, the answers could not be criticized much, at least from a law professor’s point.

Some observers, both proponents and opponents of same-sex marriage, were disappointed that the Court did not approach the answer as they would have liked. The Court was decidedly pragmatic.

In the era of judicial pragmatism, it’s quite refreshing to see new cases where the courts make their decisions in part on public policy grounds.

Public policies that the courts rely on in recent years are typically well-established, for example, freedom from restraints of trade as discussed in my previous blog “Ambiguous and Uncertain Non-Competition Clauses.” Other examples may include the courts’ refusal to enforce contracts requiring chastity, contracts relating to illegal acts, and contracts that are penal in nature. However, many of these have long been legislated.

^”Fairness for Firefighters” The Economist 329:8638 (July 4, 2009) 26

*[2004] 3 S.C.R. 698, 2004 SCC 79

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Ambigious and Uncertain Non-Competition Clauses

Posted in: "All, Business Development, Legalese Dictionary by Admin | No Comments Wednesday, July 8, 2009

There are several things that may render a non-competition agreement unenforceable in law. For example, a non-competition agreement may be held unenforceable because it’s commercially unreasonable. Besides the (un)reasonableness of the terms, the agreement may also be held unenforceable if the terms are vague and uncertain.

Consider the recent ruling by the Supreme Court of Canada in Shafron v. KRG Insurance Brokers (Western) Inc.,* where the court was called upon to determine whether a non-competition agreement was enforceable wherein the former employee undertook not to compete with his employer in the Metropolitan City of Vancouver once he departed from the company.

It turned out, that no Metropolitan City of Vancouver has ever existed in British Columbia.

The trial judge in this case ruled that the wording “Metropolitan City of Vancouver” was neither clear nor certain and was unreasonable. Therefore he dismissed the action.

The B.C. Court of Appeal, interestingly, took a different approach. The Court of Appeal found while the term “Metropolitan City of Vancouver” was ambiguous, it was possible to construe it as applying to the City of Vancouver and the surrounding municipalities.

On appeal to the Supreme Court of Canada, it was held that the term in question was indeed ambiguous and uncertain. The non-competition agreement was thus unenforceable.

The Court was reluctant to “read into” the contract by guessing what the parties had in mind when the agreement was entered into as it would encourage employers to draft overly broad restrictive covenants. The Court accordingly condemned the Court of Appeal’s attempt to “rewrite the geographic scope in the restrictive covenant to what it thought was reasonable.”

*[2009] S.C.C. 6, rev’g [2007] B.C.C.A. 79 (CanLII), com’g [2005] B.C.S.C. 1611 (CanLII)

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Facebook Security Concerns

Posted in: "All, Business Development by Admin | No Comments Tuesday, July 7, 2009

Further to my post “Facebook No-Nos” yesterday, it seems like the popular social networking website has been in a lot of hot water lately. For example, if you Google the words “Facebook” and “Security,” you’ll likely get the following results:

  • Personal information and family photos of UK’s next head of MI6 foreign intelligence services were obtained via Facebook and published by a daily newspaper.
  • Social Security numbers can be easily guessed by cybercriminals for identity theft based on information users provide on Facebook, MySpace and other social networking sites, a study found.
  • Prospective university students are falling prey to a growing Facebook fraud as marketers set up fake academic groups to vacuum up their personal information and sell it.

As the social networking sites continue to grow, users must be vigilant on what information they share, and whom they share it with.

Many users have been realizing, once they’ve actually reviewed their privacy settings, that they’ve been sharing more information online than they thought they had been. For example, you may have added your boss (or your grandmother) at one point but forgotten about it when you posted your latest drunken bash online.

For professionals who depend largely on their public image, such as lawyers, accountants, or therapists, concerns about sensitive information shared online becomes even graver.

While social networking sites may be helpful in developing visibility and expanding your client base, they can also cause considerable harm if the wrong information gets into the wrong hands. Let the slip of the incoming head of MI6 be an example.

Remember, information wants to be free. Once it’s released into the wild (cyberspace), you have little or no control over where it goes next.

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Facebook No-Nos for Divorcing Couples

Posted in: "All, Family Law by Admin | No Comments Monday, July 6, 2009

Recently Time magazine posted an interesting story on “Five Facebook No-Nos for Divorcing Couples.” The points listed below are taken from the article; comments are my own.

  • Don’t Show Off

While there may be nothing inherently wrong with sharing your latest trophies with the world, pictures of your brand-new cruise boat or luxury vacation may reveal inconsistencies between your perceived lifestyle and your sworn financial statement.

  • Don’t Let It All Hang Out

Pictures revealing your poor judgment (no matter how justifiable your actions seem under the circumstances) won’t help you win custody battles.

  • Don’t Get Tagged

Even if you’ve carefully deleted all inappropriate information about you, your friends may decide that it’s funny to post a picture of you passed out in the bathtub, or somewhere even worse. Search your own name periodically. Or better yet, behave yourself.

  • Don’t Vent

“You think your kids never use a computer?” says the author. Venting, particularly when it involves personal attacks, casts a shadow on your character when it comes to parenting skills.

  • Don’t Cut Everyone Off at Once

Your relationship with mutual friends and in-laws, believe or not, may survive the nasty break-up. “People need time to adjust,” says the author. Cutting off all ties with your ex is like painting yourself into a corner: you have to wait a long time before you get to step out.

As a family law lawyer, I can’t say I disagree with any of the points above. Facebook and other social networking sites have become so popular that they are generating new kinds of privacy concerns. Once your personal information is released into cyberspace, you retain little or no control of it.

My advice: think twice before posting something that you wouldn’t say or do on a crowded bus.

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Blog Review: Wise Law Blog

Posted in: "All, Blog Review by Admin | 1 Comment Saturday, July 4, 2009

The Wise Law Blog, established in 2005, is an all-encompassing blog on all interesting matters legal. It’s hosted by Garry Wise Law Office, a Toronto-based litigation boutique.

The principal host, Garry Wise, is not only a passionate blogger, but also a pioneer of Web 2.0 within the legal community. Wise, a lawyer-cum-innovator, appears regularly in community forums advocating the use of technologies, be they websites, blogs, Twitter, or Facebook. I had the pleasure of attending one of his session at the recent Solo and Small Firm Expo, and I was duly impressed.

Unlike many practitioners’ blogs, which tend to have a narrow focus of a few specific topics, the Wise Law Blog focuses on interesting topics of the law. For example, the most recent posts include: “Catcher in the Rye” parody violates copyright law, aspiring lawyer denied licence because of unpaid student loan, ex-spouse must pay for mental abuse after break-up, and Montana town demands Facebook password for job applicants.

The blogs are concise and to-the-point, yet easy to read. The articles are generally less than 500 words in length and are suitable for pleasure-reading. Even for legal decision summaries, the hosts are able to get to the point without the legalese. (A point which my blog could certainly improve.)

For example, in his recent post “Ontario court nixes CIBC overtime class action,” Wise quoted from newspapers rather than the decision itself. By doing so, Wise open the forum to the general public, rather than just legal experts.

Accessible, topical, and interesting, the Wise Law Blog certainly is worth of returning visits.

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Photoblog: Court House Security – Understaffed, Underfunded, Unavailable

Posted in: "All by Admin | 1 Comment Thursday, July 2, 2009

A while ago I wrote about the nearly nonexistent security at the Ontario Superior Court (393 University Avenue, particularly on the eighth floor).

Today I was at the court house for an emergency hearing. Surprisingly once again there was no security available. This time I took photos as evidence.

Empty House, Empty Halls… taken at 8:50 am this morning.

Wanring! Zero Tolerance on Items that May Be Used As Weapons.

“Zero Tolerance on any item that may be used as a weapon.”

Is this our only protection against terrorists and/or angry litigants?

It will be VERY ironic if someone gets hurt and decides to sue as a result of the broken table.

“Any item deposited into this container cannot be returned and will be destroyed.” Is this where they store their confiscated goods?

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