Canadian Charter of rights and freedoms

This dissertation investigates the effects of amendments to Ontario’s Rules of Civil Procedure that came into effect on January 1, 2010 (the “2010 Amendments”) and were subject to interpretation by the Supreme Court of Canada in a 2014 decision (“Hryniak”). Hryniak concerned summary judgment. However, the dissertation largely concentrates on the effects of Hryniak and the 2010 Amendments outside the summary judgment context, inquiring into whether Hryniak’s call for a “culture shift” and the 2010 Amendments’ enshrinement of the principle of proportionality have had noticeable effects. It does this by analyzing three aspects of Canadian procedural law that were not amended in 2010 but were amended (or enacted) shortly thereafter and can facilitate or hinder access to justice depending on how they are used: 1) jurisdiction motions; 2) dismissals without an oral hearing, potentially sua sponte; and 3) interlocutory appeals. This more quantitative analysis of case law was complemented by results of qualitative surveys of lawyers about their experiences with Hryniak and the 2010 Amendments. With regard to the three procedural rules analyzed, the dissertation makes suggestions for their re-interpretation to minimize unnecessary interlocutory wrangling. At a broader level, the dissertation concludes that there have been positive effects of Hryniak and the 2010 Amendments, but they have been limited, and tend to have been greatest in areas where tailored amendments in procedural law have occurred rather than in response to broader statements that a “culture shift” is required in the conduct of litigation. In any event, more work is required outside the realm of civil procedure reform to effectively improve access to civil justice in Canada.

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Hryniak, the 2010 Amendments, and the First Stages of a Culture Shift?: The Evolution of Ontario Civil Procedure in the 2010s

Although we tend to agree that innovation makes us smarter, happier and more skilful, securing the process of developing and exploiting technology remains an essential issue. The authors analyse somewhat controversial developments through the viewpoint of legal theorists to find out how to balance the rule of law with the rapidly growing world of tech. What are the guiding principles that have to be followed in the context of unpredictable and socially untested advancements? What are the constitutional dogmas and doctrines that cannot be damaged when adopting the new inventions? Kerikmäe and Rull are convinced that creating a legal principle cannot be rooted in a specific technological advancement and the new technology is not assumed to change the common values. Customer’s rights and “dehumanisation” perspectives are discussed in the light of “surveillance state” and “service state” policies. The chapter gives conceptual overview of the contributions in the book and concludes with the statement that “user-centricity” and the common values should be prioritised as once when space law suddenly emerged. 1 Who Determines the Principles of eRegulation? New technologies are making us all smarter—thus, should we worry about combining the existing values to all-embracing dominance of tech? Despite of the prediction of one of the leading priests of technological singularity, Kurzweil, namely that “by 2045, we will multiply our intelligence a billion fold by linking wirelessly from our neocortex to a synthetic neocortex in the T. Kerikmäe (*) • A. Rull Tallinn Law School, Tallinn University of Technology, Akadeemia tee 3, 12618 Tallinn, Estonia e-mail: tanel.kerikmae@ttu.ee; addi.rull@ttu.ee Myrphy/anonymous author at: http://www.murphys-laws.com/murphy/murphy-technology.html. © Springer International Publishing Switzerland 2016 T. Kerikmäe, A. Rull (eds.), The Future of Law and eTechnologies, DOI 10.1007/978-3-319-26896-5_1 1

https://dspace.nlu.edu.ua/bitstream/123456789/12987/1/Tanel_Kerikmae_Future_Law_eTechnologies_2016.pdf

The Future of Law and eTechnologies

......................................................................................................................................... ii Preface ........................................................................................................................................... iv Table of

The archival trustworthiness of digital photographs in social media platforms.

Collection of digital evidence is relevant in the majority legal proceedings in some way. In criminal proceedings, the public authorities have powerful legal measures at their disposal that allow collection of evidence, but often these measures are not specifically designed to deal with digital evidence. Besides the problem of suitability of traditional evidence rules, law enforcement also has to deal with higher legal standards and often work together with the private sector. Moreover, the practical use of existing special powers addressing digital evidence (like the ones set forth in the CoE Cybercrime Convention) still needs a lot of encouragement. On the other hand, collection of digital evidence in a civil law suit follows different principles; parties have less control over the process but have more flexibility, and following the “meet and confer” principle can establish better tailored rules for their case. However, failure to properly manage preservation and collection of digital evidence may lead to unfavourable outcomes in legal proceedings and end up in getting fines or disruption of business functions and processes. This article discusses issues relating to collection of digital evidence in criminal proceedings, civil cases, arbitration and other legal purposes in order to identify areas where private sector actions can inform law enforcement efforts and vice versa while outlining a model for legal requirements of digital forensic readiness.

Challenges in Collecting Digital Evidence: A Legal Perspective

This article provides a solution to the unaffordable legal services problem in Canada (“the problem”), so as to: (1) maintain law society management structures as they are; (2) fulfilling their duties in law to make legal services adequately available; (3) avoid law societies being abolished; and, (4) enable that solution to pay for itself. What is needed is to convert the way the work is done to provide legal services from a handcraftman’s method to a support services method. There are parts of the work done for all legal services that can be more cost-efficiently done, and equally competently done by a highly specialized support service, particularly so legal research.No doctor’s office provides all treatments and remedies for all patients the way a lawyer’s office does for all clients. The whole of the medical services infrastructure is made up of highly specialized, high volume, mutually interdependent support services. There are no “generalists.” Even the family doctor is a type of specialist. The innovation to bring about the highest degree of competence and the greatest economies of scale never stops. In the legal profession it never started because the pressure necessary for such innovation has never started.In law firms, the degree of specialization of all factors of production and volume of legal services produced are insufficient to make legal services affordable to middle income and poorer people — particularly so legal advice services. They are the source of the problem; not routine legal services. Such people are the majority of the population that cannot afford legal services. They pay for the justice system where lawyers earn, on average, a much better income than they do.People want “their own lawyer” and not the “alternative legal services” that are the law societies’ answer to the problem. Such services do not provide a lawyer in a fiduciary relationship to do all the work arising from a client’s legal problems and do it at reasonable cost. They are based upon a strategy of “cutting costs by cutting competence” — the competence of the person who provides the service. But the successful strategy is the opposite — increase competence by higher degrees of specialization, and volume of production, so as maximize the economies of scale that maintain a product or service as affordable. This faulty choice of strategy means that Canada’s law societies have no answer to these accusations of the angry taxpayer and self-represented litigant:Why can’t I have an affordable lawyer of my own? I pay for the justice system where you lawyers earn a very good living compared to me. But I must use the second best “alternative legal services” such as, clinics providing advice from students, paralegals and other non-lawyers, targeted-unbundled legal services, and various forms of self-help and public legal education. You say you take this ‘access to justice’ problem very seriously. I don’t believe that. If you were sincere and honest, you would be trying to solve the problem. You can’t show me anything that you have done about trying to solve the problem. I can’t have an affordable lawyer of my own because you use your monopoly over legal services to serve yourselves, but not the needs of the public for legal services. Would you send your close relatives to “alternative legal services”? Of course not; that’s not good enough for them, but it’s good enough for us — yes us, the majority of the population who cannot afford legal services. Why should I give my respect and tax money to your justice system?Why indeed! The unaffordable legal services problem is not a legal problem. Law society benchers — the elected lawyer-managers of Canada’s law societies — do not have the expertise necessary to solve the problem. Needed is a permanent civil service-type institute of continuously developing expertise with which to advise all law societies as to the many ways that costs can be cut so as to make legal services affordable while competence is maintained. Elected governments, like law society benchers, are amateurs too in regard to the management problems of their government departments. But they have a civil service to advise them; benchers don’t. Without such an advisory institute, dedicated to constant surveillance of, and response to public need, problems such as unaffordable legal services will never be solved. And they will continue to inflict major damage and misery upon society until law societies are replaced with agencies that are more responsive to public need and the democratic process.In addition to legal research, there are many other specialized support services that can be provided with such expert advice, including the automation of routine legal services at a lower cost than can the investor-owners of law firms (the ABS alternative), and advice as to marketing strategies and methods of maximizing income and client services and satisfaction. That is what law societies lack — the expertise to deal with problems as serious as unaffordable legal services. They are not legal problems. That is one of the reasons why law societies and access to justice committees fail. They are made up entirely of lawyers.Without an advisory institute to advise and carry out benchers’ choices, it is not possible to be both a good bencher and a good lawyer. Because of that conflict, benchers do the easy things such as promoting alternative legal services, but not the hard things such as carrying out the difficult trial-and-error work necessary to solving the problem but will leave them short of time to serve their clients and employers. They don’t try to solve the problem, but merely promote those programs and services that will help the population learn to live with the problem — like providing palliative care instead of trying to cure the disease.Because of a lack of law society leadership, lawyers have priced themselves beyond the majority of the population. The resulting vacuum is being filled in ways that work against lawyers. Innovation is happening. But it is the innovation of: (1) alternative legal services that cut costs by cutting the competence of the people who deliver the legal services; (2) the commercialization and industrial production of legal services (such as, LegalX, LegalZoom, LegalZoom (Canada), Axiom, and, Neota Logic); and, (3) of ownership of law firms by investors referred to as, “alternative business structures.” It is innovation that will speed the reduction of the per capita number of lawyers in the private practice of law.Law society efforts and access to justice committees have been in effect for several years now, but the victims of unaffordable legal services continue to grow in size and number. The coming problems, like the present problem, will require types of expertise that lawyers’ committees and law society convocations do not have. That is why they fail.The consequences of not learning how to solve the problem are very destructive consequences to: (1) the population; (2) the courts and the justice system; and, (3) the legal profession. The continuing growth of that destruction, combined with the great power of communication provided by the social media, the news media, the pressure groups, and opposition political parties, will not allow matters to remain as they are. Governments will have to intervene. But law societies have no answer — no program whose purpose is to solve the problem.Because of the increasing volume and complexity of laws, people cannot deal with their legal problems by themselves. If legal services were affordable, no law firm would be short of clients. Instead, providing nothing more than alternative legal services is to ignore that volume and complexity by responding with methods of comparative incompetence and simplicity. The law and the population’s need for help to use it effectively are moving in one direction, but those who manage our law societies are moving in the opposite direction. If law societies won’t accept the principle that their duty in law to make legal services adequately available, includes making them affordable and provided by a client’s “own lawyer,” the abolition of law societies best follows.

https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID2819067_code1398484.pdf?abstractid=2811627&mirid=1&type=2

Access to Justice -- Unaffordable Legal Services' Concepts and Solutions

Because electronic records management systems (ERMS’s) technology has made electronic records a much more complicated technology than was pre-electronic paper records technology, a legal opinion as to compliance with the national or international standards of electronic records management, and with the major “legal” records requirements is now necessary. Experts in ERMS technology have long provided certifications of compliance with authoritative standards of electronic records management, but they should not be giving legal advice as to the “legal” requirements of such standards. And, legal advice is now required for ERMS’s because inter alia, records management by “good business practice” is no longer enough. Good records management is based upon “records system concepts,” and not merely upon “records concepts,” as was the previous paper records management technology. “The system integrity concept” i.e., proof of record’s integrity requires proof of records system integrity. Because a paper record in a file drawer has a system existence, it is not dependent upon its records system for anything. But because an electronic record has no physical existence, it is dependent upon its ERMS for everything, in particular, for its existence, its accessibility, and its integrity. An electronic record is like a drop of water in a pool of water — its “pool” is its ERMS. Therefore the efficacy of electronic discovery and admissibility of evidence proceedings based upon records, are dependent upon the quality of the parties’ electronic records management. Appendix A provides a list of the very common serious defects frequently found in ERMS’s — common because: (1) there is no law of general application requiring ERMS’s be kept in compliance with any authoritative standards of records management; and, (2) many organizations believe that “they can get along just fine” using only their most recently made and received records. Therefore when “compliance with standards” issues are raised, they will say, “but we’ve had no trouble before.” The necessary answer is, “that is only because you have never been challenged before.” Quite often in litigation, it is the older records that are the most important evidence in settling issues and disputes. Appendix B provides a summary of Canada’s major ERMS standard, which is heavily dependent upon international ERMS standards. “Records management law” will have to become a major area of the practice of law because: (1) records are the most frequently used kind of evidence; (2) an increasing number of major laws have records requirements; and, (3) we are now as dependent upon ERMS technology as we are upon motor vehicles technology.

https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID2487362_code1398484.pdf?abstractid=2475460&mirid=1

A Legal Opinion is Necessary for Electronic Records Management Systems

Alternative Business Structures (ABS investors owning law firms), could hasten the end of the general practitioner throughout Canada. Investors, not being lawyers, would have to be granted an exception to law society bylaws in regard to the offence of “unauthorized practice of law,” (UPL). If so, so should the commercial producers of legal services — producers such as, LegalZoom, RocketLawyer, and LegalX. In the U.S., they have shown that they can rapidly eat into the market of the general practitioner. And they have begun to have a presence in Canada; see: LegalZoom.ca; and, MaRS launches LegalX. 
But because law societies in Canada have done nothing to try to solve the unaffordable legal services problem (“the problem”), they have undercut their ability to prosecute them for the UPL offence. And, ABSs cannot solve or lessen the problem because any improvement they might finance cannot produce affordable legal services for middle and lower income people because the method of producing legal services is very obsolete. Law societies’ refusal to try to solve the problem, will remain as an obstacle to UPL prosecutions of the commercial producers who can serve middle and lower income people with their legal services, particularly so when they have a large clientele of many thousands of customers. 
In September 2017, the law society in the province of Ontario (the Law Society of Ontario (LSO)), approved in principle the “charity ABSs,” i.e., to allow lawyers and paralegals to deliver legal services through various non-profit civil society organizations (CSOs), to clients of such organizations, allegedly to facilitate access to justice. 
It has reactivated a long existing debate between those lawyers whose clients can be ABS investors, and those whose clients are “of the people and small business and institutions,” i.e., the clients of the general practitioner, the solo practitioner, and the small unspecialized law office. It is feared that allowing such ABSs will definitely lead to all other forms of ABSs being allowed. The purpose of such investors is to “corner the market” for routine legal services — services readily automated or that can be substantially assisted by automation. That is a large threat to general practitioners and to “personal injury” lawyers. However, the experience had in England and Australia has shown that ABSs cannot have significant impact upon the problem of unaffordable legal services. 
Law firms who have such investor-clients, particularly so the large corporate-commercial law firms, can potentially earn millions of dollars in legal fees representing such investors in hundreds of negotiations with individual law firms. Because the unaffordable legal services problem has left middle and lower income people able to afford only routine legal services at most, and as a result, the majority of law firms very short of clients, this is a particularly opportune time to be ready to represent such investors who offer to finance automation facilities for such financially-stressed law firms. Therefore benchers (the elected law society lawyer-managers) whose law firms can represent such investors wish to secure the necessary changes to law society bylaws for the full approval (legalization) of all types of ABSs, thus exempting them from UPL prosecution. 
LegalZoom, etc., will fill a legal services economic vacuum — a vacuum that the law societies refuse to try to fill themselves by solving the problem, at a time when, because of the volume and complexity of laws, people have never needed lawyers more. It contradicts and defeats what the Canadian Charter of Rights and Freedoms and Canada’s law societies are supposed to guarantee, i.e., rights, freedoms, the rule of law, and adequate access to justice by way of affordable lawyers. If law societies won’t try, other sources should not be barred by such law society prosecutions. Although ABSs can finance the automation of routine legal services for individual law offices, they cannot tailor the development and use of such automation, and progress along with its development from the simple to complex legal services, the way that the large, well financed organizations that provide commercially-produced legal services can. 
The legal profession needs its own management structure that will enable it to escape being owned by ABS investors, and not be at the mercy of the commercial producers—a law society structure that can bring the benefits of automation and the progress of electronic technology to the population as effectively as any other management structure. That requires a civil service to serve all of Canada’s law societies. The necessary components for such a management structure already exist, which include the precedent set for such a “law societies’ civil service” by Ryerson University in Toronto and the University of Ottawa by establishing LSUC’s bilingual, LPP (Law Practice Program), an alternative to articling to be qualified to be called to the bar. (Because of the problem, articling jobs for graduate law students to gain experience by working in law firms have disappeared.) Whether to make legal, ABS investors’ buying-into law firms in whole or in part ownership, whether as charities or commercial investors, has to be decided within this wider context, including, it is said, ”lawyers and law professors are particularly ill-suited to address a post-LegalZoom world.” 
This article devotes considerable space to the solution to the unaffordable legal service problem, because: (1) it is a problem that law societies can solve, which would render ownership of law firms by ABSs unnecessary, and irrelevant to the delivery of legal services; and, (2) electronic technology will create many more such problems. Therefore, law societies should first solve the unaffordable legal services problem. That should be accepted as an ethical imperative before law societies sponsor: (1) ABSs; and, (2) “alternative legal services” such as clinics providing legal information; and, (3) hoping without proof or any analysis, that “apps” (the application of electronic technology to the provision of legal services), can somehow adequately deal with the problem. They are very inadequate substitutes for a person’s “own lawyer” providing affordable legal services and dedicated to each client within the solicitor/attorney-client relationship — a law society disciplined relationship with advantages beyond those of the buyer-seller relationships with the providers of “apps.” And which dedication and duty may often conflict with the profit-duty imposed by investment contracts with ABS investors.

Alternative Business Structures’ 'Charity Step' to Ending the General Practitioner

This short blog paper (5 pages) summarizes: (1) the conceptual foundation for the use of electronic records as evidence; (2) the "system integrity concept" and "the discovery triangle" of concepts; and, (3) the necessary legal infrastructure for electronic discovery and admissibility. The concepts and arguments set out have been facilitated by what the author (a Canadian lawyer/attorney) has learned from working with experts in electronic records management.

The Dependence of Electronic Discovery and Admissibility Upon Electronic Records Management

The solution to the “access to justice” problem that the majority of the population cannot obtain legal services at reasonable cost, is to enable the Canadian Legal Information Institute (CanLII) to provide the support services to all lawyers in Canada, that the LAO LAW division of Legal Aid Ontario (LAO) provides to lawyers in Ontario who do legal aid cases In contrast, all of the literature and conferences that this most serious of access to justice problems has generated, suggest solutions that involve treating the symptoms of the problem but not the cause For example, the solutions put forward by the Federation of Law Societies of Canada involve cutting the cost of legal services by using: (1) self-help solutions; (2) people of lesser competence than lawyers; (3) pro bono or “low bono” services This article discusses the inadequacy of those solutions The long history of law society failure to solve this problem is due to a lack of understanding of its cause As a result, the solutions that have been recommended are meant to improve the existing system of providing legal services That is the cause of the problem, the preservation of the existing system — the "handcraftsman’s" method of delivering legal services Instead, LAO LAW enables the use of a “support services” method of delivering legal services If the legal profession in Canada does not make that transition, the problem will never be solved It has to be solved, otherwise the small and middle-sized law office will not be preserved, and government intervention will be necessary — either by: (a) a program of socialized law by way of government-funded legal services; or, (b) enabling the free enterprise competitive marketing of legal services LAO LAW has a 35-year history of success in supplying fact-specific legal research services, and several other support services developed from that initial research service It has solved a smaller version of the very same problem It has saved LAO millions of dollars that would otherwise have been paid out on lawyers’ accounts for legal research The Federation of Law Societies of Canada is the sponsor of CanLII, which is “funded by Canada’s lawyers and notaries for the benefit of all” At present, CanLII provides free online access to court and tribunal decisions and to statutes from all jurisdictions in Canada It is a national service available in both English and French, with an impressive record of accomplishment But its present service cannot provide a solution to the problem All legal services are based on legal research Therefore CanLII could substantially reduce the cost of legal services provided by lawyers if it could provide the support services at cost that LAO LAW provides Therefore the solution lies in the hands of the law societies But such innovation will not happen if there is not sufficient fear of the interaction among: (1) the consequences of not solving the problem; (2) the power of the internet, the social media, along with the news media to quickly turn those consequences into a major public issue — particularly so by the publication of the sad stories of the high percentage of unrepresented litigants caused by unaffordable legal services; (3) the well established progress of the loss of self-regulation by law societies in other countries; (4) the fact that the consequences of the unavailability of legal services at reasonable cost will motivate the many non-lawyer legal services providers to offer to people desperate for a lawyer’s services, which they cannot afford, legal services that should be provided by lawyers; and, (5) the attention brought to these factors by publicized reports and discussions as to: (a) whether there should be an official regulator of non-lawyer providers of legal services; and, (b) if so, should that regulator be the law society in each jurisdiction If a law society cannot regulate the provision of legal services in its own profession, how can it be expected to adequately regulate the provision of legal services by other professions?

Ken Chasse

Papers

Access to Justice -- Unaffordable Legal Services' Concepts and Solutions

A Legal Opinion is Necessary for Electronic Records Management Systems

Alternative Business Structures’ 'Charity Step' to Ending the General Practitioner

The Dependence of Electronic Discovery and Admissibility Upon Electronic Records Management

Access to Justice – Canada's Unaffordable Legal Services – CanLII as the Necessary Support Service