University of Alberta Faculty of Law Blog

What Happens to Your Online Stuff When You Die?

An interesting article in the local Vue Weekly on this issue.

What Happens to Your Online

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There's no such thing as a free lunch

An article in yesterday's Victoria Times Colonist points out the unintended consequences of an antiquated  liquor law. 

 

Prior to Prohibition, a 'tied house' - a tavern that was contractually obligated to purchase alcohol from a specific manufacturer - would offer free lunches while encouraging the consumption of alcohol hence the phrase "there's no such thing as a free lunch."  After the well-documented failure of Prohibition, tied house legislation was enacted in B.C. (and other North American jurisdictions) to, among other reasons, "prevent big brewers and distillers from owning the bars and restaurants where their products are sold and to protect small operators." 

 

The article goes on to tell the story of a Victoria pub owner.  The owner Dave Thomas is not allowed to sell his own ale in his new pub due to the 'tied-house rule' that was originally designed to help protect small operators like Thomas.   

 

It's an interesting read on some regulatory folly.

 

(h/t WineLaw)

It took how long?

I know the wheels of justice can move slowly, but 24 years is a really long time for a judgment to be rendered. If the plaintiff had won, the pre-judgment interest alone could have bankrupted the defendant! (h/t Overlawyered)

Did Harper eat the wafer?

If you look at the video below, you will see what all the fuss is about:

The Paradox of El Paso

Apropos of Bruce's citing to Reason, Radley Balko has this fascinating piece that will drive the Lou Dobbs' of the world crazy. It turns out that El Paso, TX has very low crime despite having high gun rates, higher than average poverty, and a high proportion of immigrants. How can this be? Read the piece to see some interesting studies on crime and immigration.

Is floating the last, best hope for liberty?

Thanks, Moin! 

Freedom-loving individuals dream of escaping an ever-encroaching government and often these dreams consist of utopian schemes that are destined for failure.

 

In the July issue of Reason magazine, Brian Doherty pens a lengthy profile of the interesting Seasteading project, which is another attempt to create a free society - 20,000 Nations Above the Sea: Is floating the last, best hope for liberty?

At the fore of the Seasteading Institute is the grandson of Milton Friedman and son of David Friedman, Patri Friedman.  The Institute's mission is: To further the establishment and growth of permanent, autonomous ocean communities, enabling innovation with new political and social systems.

Doherty on Friedman and what makes this effort unique:

Patri Friedman, who has been sailing around some of the very reefs on which earlier utopias capsized, is well aware of these past failures and says he has learned from them. The Seasteading Institute’s website is as thorough and thoughtful a guide as you’ll find to the foibles and follies of previous attempts to create new and/or floating nations. And there are some important points of departure that Friedman says will make the difference this time around.

First, seasteading does not require anyone to take over existing terrain. That was hopeless; the land’s all claimed by some government or another, even the parts barely above water. And an open rebellion against an existing regime is unlikely to succeed. Seasteaders therefore will make their own “land.”

Second, seasteading is modular. Unlike various floating nations that never got off the drawing board—the “Freedom Ship,” the “Aquarius Project,” and other pipe dreams—the institute’s plan doesn’t require an upfront multimillion-dollar buy-in. Seasteading can start small, and in fact Friedman is sure it will start small, with tiny family-sized platforms called “coaststeads” near the mainland serving both as proof of concept and a laboratory for working out the kinks before community-sized seasteads are ready to sprout in international waters. Friedman figures the cost of such starter sea homes won’t be too out of line with housing costs on land, especially if people are buying in a communal or time-share fashion. In fact, most recent cost estimates for a particular hotel/resort seasteading design came out to roughly $258 per square foot (without factoring in some assembly and deployment costs), which is quite a bit cheaper than the current price of many single family homes in the San Francisco Bay area.

Third, seasteading isn’t just based in libertarian theorizing and hopes. Friedman knows that seasteads will need to have some business hook, and he’s busy working those angles. There’s SurgiCruise, a nascent floating medical tourism company that is seeking venture funding. If Americans will fly to Mexico, India, or Thailand for cheaper medical care free of U.S. regulatory costs, the idea goes, why wouldn’t they sail 12 miles for it? Among the other first-tier business ideas being bruited about with varying levels of intensity are vacation resorts, sin industries, aquaculture, deep-sea marina services, and universal data libraries free of national copyright laws.

Fourth, because the open ocean plus “dynamic geography” allows for experimentation with governance in any form, seasteading shouldn’t appeal only to libertarians. Sure, any seastead that Friedman would want to live in would get as close to anarchism as can be managed. But he thinks a variety of ideologues should be willing to leap on board, from sustainability-oriented environmentalists to members of various intentional communities, religious or philosophical or whatever, that want to shape their own lives in peace without government interference. Such communities might not be individualist in their internal policies, but they fit within the libertarian framework of seasteading itself, which allows for a wide variety of freely chosen social structures.

Below is the "Swimming City" that took the grand prize in a recent seasteading design contest of designers' visions for cities at sea.

 

Welcome new blogger

My former student Bruce Korol (LLB 2005) will be adding his two cents on our blog. Bruce, who currentlyu resides in Calgary, has been writing opinion pieces in the Vancouver Sun, Calgary Herald, Edmonton Journal, Montreal Gazette, and the National Post, Arts & Opinion. We look forward to a lively discussion on his views.

Oh Canada - why do we generate these embarassing politicos

This is pretty pathetic considering that these guys are paid gobs of cash to do this:

Alberta Metis Settlements and Indian Status

On Friday last week the Alberta Court of Appeals issued a very interesting ruling regarding Alberta's Metis Settlement Act: Cunningham v. Alberta (Aboriginal Affairs and Northern Development), 2009 ABCA 239. Under the statute as it stood, most people who were registered Indians or Inuk could not become members of a Metis settlement and those members who became registered Indians or Inuk would lose their settlement membership. The case arose out of local politics in the Peavine Settlement, but the implications seem much broader. The effect of the decision, should it stand, is to remove any statutory bar to Indians and Inuk to be members of a Metis settlement due to their Indian/Inuk status alone and the exception to that bar of specific council by-laws or General Council policy. In other words, the Province can no longer explicitly deny Metis settlement membership based on an individual's Indian/Inuk status, nor can an individual settlement council, on a whim, remove or instate members based on their Indian/Inuk status. The court rejected both a s. 25 Charter argument and a request to delay the effect of the act.

I may be over-, under- or mis- stating the implications of the judgment. I invite readers with more expertise in the area to debate the implications of the decision.

Well, isn't THIS an interesting development on the Dziekanski hearing!?

Beginning days after the Dziekanski tasering nearly two years ago (and well before the video became public), and in too many posts to link here, some of us began asking the obvious question of what specific behaviour on the part of Mr. Dziekanski could have prompted the tasering.  Initial RCMP reports were replete with adjectives and characterizations ("aggressive", "threatening", "uncooperative", etc.) but remarkably sparce as to the detail of what Mr. Dziekanski actually did to prompt the (repeated, as it turns out) deployment of 50,000 volts into his body.

Faithful readers may recall that these posts unleashed a barrage of blow-back from the law enforcement community (everyone from a self-described RCMP officer, "Mac", to one of U of A's own campus cowboys).  The objections were, in essence, that we didn't understand how tasers work; we weren't there so how can we criticize the police; tasers don't kill people with heart conditions - heart conditions kill people with heart conditions; people in agitated states become super-strong machines; if only you knew the suffering of my people; etc., etc., etc.

Now - and just as the Braidwood Inquiry was (supposedly) wrapping up - comes the revelation that the RCMP officers involved in tasering Mr. Dziekanski discussed tasering him before they actually observed him.  (This, despite evidence to the contrary from all the officers before Commissioner Braidwood).

I officially give up.  If anyone still wants to defend these guys, have it it:  I don't think there's any persuading you, and I'll leave it to you to fill the "comments" pages, uninhibited by unwelcome interjections (at least from me) pointing out how exhausting it must be for you to continue dancing around the obvious.

And just to give the YVR taser apologists some additional fuel, I'll add two discussion points for you:

1.  Perhaps instead of gushing over Wally Oppal's (brief and undistinguished) legacy as BC's Attorney General, some of BC's journalists might seriously call into question his judgment in deciding not to charge the RCMP officers in question.

2.  Does anyone now seriously believe that the RCMP officers in question were telling the truth when, at the Braidwood Inquiry, they denied discussing (post-tasering) how they might coordinate their (remarkably consistent and, as it turns out, incorrect) versions of events?

"Jewish Groups Urge those Displaying Palestine flags to be Deported to Saskatchewan"

Norman Finkelstein's blog (you can link to it from our blogroll below) has a post reproducing a brief story from the National Post covering the recent conflict surrounding pro and anti Israel sentiment at York U.  What has gone on there seems not unlike previous incidents at Concordia) - just more of the sort of silliness that makes me grateful to be at the U of A, where neither pro nor anti Israeli discourse have morphed into puerile slogans or shouting matches.

What caught my attention, though, was the ironic tagline at the top of Professor Finkelstein's post:  "Jewish groups urge those displaying Palestine flags to be deported to [wait for it] ... Saskatchewan".

My advice (totally unsolicited, of course) to Saskatchewaners is that if that proposal is ever made, they agree in exchange for their deporting people who operate boom-cars to Bathurst & Lawrence.

Judge McIntyre and Human Rights

As Prof. Borwn has noted, former Supreme Court Judge William McIntyre passed away on 14 June. Judge McIntyre served on the court for 10 years between 1979 and 1989. The linked obituary makes reference to his decisions in the labour trilogy of 1987 (here,  here, and here) and to his dissent in R. v. Morgentaler. These are or were important decisions, but when I think of Judge McIntyre, it is his decision for the whole court in Ont. Human Rights Comm. v. Simpsons-Sears ([1985] 2 S.C.R. 536) that first comes to mind.

The case involved Theresa Vincent, who, at the time it began, was Theresa O'Malley, hence the decision's common short title of O'Malley. Ms. Vincent began working for Simpsons-Sears (as it then was) in 1971 and continued to work there until July of 1979. By 1975 she was a full-time salesperson at the store in Kingston. Simpsons-Sears had a rule that required all full-time salespeople to work on certain Friday evenings and on two out of every three Saturdays. This was, remember, in an era before Sunday shopping and before evening hours most days. But, more and more women were entering the full time workforce. Until store hours changed to accomodate them, the two evening (Thursday and Friday) and the Saturday daytime opennings were the busiest time of the week in the store. It was important to have both more and the most experienced (i.e. full-time) staff on at these times.

In October of 1978 Ms. Vincent became a Seventh-Day Adventist. One of the key elements of the Seventh Day Adventist creed is a firm belief in keeping the Sabbath (Saturday) holy. Thus, Seventh Day Adventists cannot do paid labour from sundown on Friday evening until sundown on Saturday evening. This essentially meant that Ms. Vincent could not work any Friday night or Saturday shifts. Ms. Vincent raised the issue with her employer, Mr. Burleigh. Although he gave her the first Saturday following her conversion off, he informed her that she could not routinely not work on Saturdays as "it would be preferential treatment not offered to all our other sales staff." In light of her inability to work Saturdays, Mr. Burleigh fired Ms. Vincent. He then immediately offered her a part-time job at Simpsons that would provide roughly half the hours, with a commensurate cut in earnings and benefits.

Ms. Vincent challenged her termination before a board of inquiry under the Ontario Human Rights code. The Board divided the issue into two parts: first, was the rule that led to her firing discriminatory and second, did Simpsons-Sears offer sufficient accomodation. On the first question the Board found that even a rule that was not on its face discriminatory could be so. On the second, it found that Simpsons-Sears had reasonably accomodated Ms. Vincent in firing her and then offering her a new job at half the salary.

Ms. Vincent sought judicial review of the board's decision at the Divisional Court. Here the majority went back a step from the board, finding "that the Legislature intended the Code as now worded to mean that an employer acting for legitimate business reasons and with no thought of discriminating on a prohibited ground, as in the case at bar, is guilty of a contravention of [the Ontario Human Rights Code]." Likewise, the Ontario Court of Appeal found "there can be no offense unless the employer intended to discriminate on a prohibited ground."

The Ontario decisions were clearly in line with the general feeling in Canadian jurisprudence at the time: unless the Human Rights Codes explicitly considered broader definitions of discrimination, the codes would only apply to acts of direct discrimination. Thus, a rule "no Seventh Day Adventists will be hired full-time" would be discriminatory and would be struck down completely unless the employer could show that this was a bona fide requirement of the job. A rule "all full time employees must work two Saturdays of every three" would not be discriminatory and the employer would have no legal obligation to accommodate Seventh Day Adventists. The effect of the two different rules, however, would be the same vis a vis Seventh Day Adventists.

McIntyre's short (29 paragraph) Surpreme Court decision fundamentally changed Canadian Human Rights law. McIntyre rejected the lower courts' expectation that proof of intent to discriminate was required under the code. He identified the purpose of code clearly: "The Code aims at the removal of discrimination. This is to state the obvious. Its main approach, however, is not to punish the discriminator, but rather to provide relief for the victims of discrimination. It is the result or the effect of the action complained of which is significant. If it does, in fact, cause discrimination; if its effect is to impose on one person or group of persons obligations, penalties, or restrictive conditions not imposed on other members of the community, it is discriminatory" (para. 12).

To this he added: "To take the narrower view and hold that intent is a required element of discrimination under the Code would seem to me to place a virtually insuperable barrier in the way of a complainant seeking a remedy. It would be extremely difficult in most circumstances to prove motive, and motive would be easy to cloak in the formation of rules which, though imposing equal standards, could create, as in Griggs v. Duke Power Co., 401 U.S. 424 (1971), injustice and discrimination by the equal treatment of those who are unequal (Dennis v. United States, 339 U.S. 162 (1950), at p. 184)" (para. 14).

The solution was to import the idea of adverse effect discrimination from U.S. jurisprudence. Adverse effect discrimination described the effects of a rule designed, as he said, "for genuine business reasons... which is on its face neutral, and which will apply equally to all employees, but which has a discriminatory effect upon a prohibited ground on one employee or group of employees in that it imposes... obligations, penalties, or restrictive conditions not imposed on other members of the work force" (para. 18). He found that such rules could be considered discriminatory under the Ontario (and other) Human Rights Code(s).

He then turned to how to remedy the discrimination. He began, "The working rule or condition is not struck down, but its effect on the complainant must be considered, and if the purpose of the Ontario Human Rights Code is to be given effect some accommodation must be required from the employer for the benefit of the complainant" (para. 20). This duty amounted to taking "reasonable steps to accommodate the complainant, short of undue hardship" (para. 23).

At this point he came to address the Board's original decision. It failed too, he found, for the board chair expected the complainant, to provide evidence that the employer had failed to accommodate. This would not do. The complainant must prove a prima facie case of discrimination. Once that was done, it fell to the respondent, the employer, to either justify the rule (in the case of direct discrimination) or, and here is the key, in adverse effect discrimination cases to show it had "taken such reasonable steps toward accommodation of the employee's position as are open to [it] without undue hardship." The onus fell on the employer because "it is the employer who will be in possession of the necessary information to show undue hardship, and the employee will rarely, if ever, be in a position to show its absence" (para. 28).

This decision was revolutionary. Like the later Janzen v. Platy Enterprises Ltd., ([1989] 1 S.C.R. 1252),  which included (sexual) harassment in the definition of discrimination (see this for a discussion and critique of Janzen), O'Malley created a space for many people burdened by discrimination to find relief through the law. As the lower court judges in O'Malley demonstrate, it is far too easy for those who are not subject to discrimination to deny its existence or prevalence or to assert that there is no just way to remedy it. Ms. Vincent shows us that it is those who are subject to discrimination who are best able to articulate its presence and effects (see this for a recent parallel argument). Judge McIntyre's decision is a clear and well reasoned recognition that discrimination continues to exist in Canada and that complainants and the Human Rights Codes and Commissions have to be empowered to fight that discrimination.

(The distinctions McIntyre made between direct and adverse effect discrimination, and the differences in remedies he describes, were dissolved in British Columbia (Public Service Employee Relations Commission) v. BCGSEU, ([1999] 3 S.C.R. 3) (Meiorin) by his successor, Judge McLachlin, as she then was. The basic principles McIntyre relied upon in his decision remain.)

Ave Atque Vale: William McIntyre, 1918-2009

The former justice of the Supreme Court of British Columbia, the British Columbia Court of Appeal and the Supreme Court of Canada died earlier this week.

He was, in my opinion, an underappreciated jurist.  His majority decision in Dolphin Delivery (in fact, a unanimous decision, subject only to a few quibbles from Beetz and Wilson JJ) has attracted considerable attention from tort law scholars in recent years.  And few judges in his time ever tried to breathe life into Diefenbaker's Bill of Rights - as he did in his dissent at the Court of Appeal in R. v. Miller and Cockriell - for which he was later criticized (ironically, given the contrasting reputations of all the judges involved) by both Laskin CJ and Dickson J. (in R. v. Miller). 

BC's new Attorney General is ...

U of A alum Mike de Jong.  (He is also Government House Leader).

When is a Crisp just a Crisp?

The Supreme Court of Judicature in the U.K. has ruled on whether Pringles are potato crisps (i.e. chips) or some other sort of savory snack. Much of the decision turns on ingredients. The unnatural stackability of the snacks was irrelevant.

Absence

I have been and will be on the road, so May has been a write-off in terms of blogging. I promise to have more and consistent content in June and onwards. In the meantime, my thanks to Gareth and Marney for the execllent comemntary.

Patriots in the Rye (Movement #2)

Common fools in common places
have come and gone

And yet, the minstrels never relented
the chants were never strained
they sang praises to a full moon
till it became the sun
        conqueror of night

they crowned themselves the sell-outs
and standing at the fork in the road
they dared the patriots to follow…

New Blog on CSR

I would like to welcome a new blog on corporate social responsibility CSR Law (also blogrolled). It is hosted by my old friend Jason MacLean who is an associate at Osler Hoskin. The blog will augment the book Corporate Social Responsibility: A Legal Analysis.

Times are Tough for Lawyers

Things must be tough when lawyers have to work as escorts.