Podcast Series Five Tech Law Cases Everyone Should Know

Law firm McCarthy Tétrault LLP has created a podcast series called Five Tech Law Cases Everyone Should Know:

"Hosted by Connor Bildfell, Five Tech Law Cases Everyone Should Know takes a closer look at five groundbreaking court cases that have shaped Canadian tech law. From de-indexing websites, to internet defamation, to data breach class actions, these cases cover a wide range of tech law issues. Throughout the podcast, leading practitioners offer their insights and experience to help you understand how these cases have been applied on the ground level."

The cases are:

• Google v. Equustek: do Canadian courts have the power to make injunctive orders with worldwide effects across the internet?
• Jones v. Tsige: a case about the tort of intrusion upon seclusion in the digital era
• SOCAN v. CAIP: can internet intermediaries be held liable for copyright infringement by users?
• Crookes v. Newton: can sharing a hyperlink to defamatory third-party content triggers liability under Canadian defamation law?
• Setoguchi v. Uber:  can a data breach, without any actual loss, trigger liability via a privacy class action?

Law Reform Commission of Ireland Consultation Paper on Third-Party Litigation Funding

The Law Reform Commission of Ireland has published a consultation paper on the issue of Third-Party Litigation Funding. The concept refers to investment by non-parties in dispute resolution.

From the executive summary:

"In Persona Digital Telephony Ltd v Minister for Public Enterprise, the Supreme Court confirmed that the torts and offences of maintenance and champerty remain part of Irish law. These ancient legal concepts prohibit, in most cases, the funding of litigation by third parties. One of the effects of these torts and offences is to make third-party funding (investment by non-parties in dispute resolution), subject to certain recognised exceptions, illegal in this jurisdiction. In SPV Osus Ltd v HSBC Institutional Trust Services (Ireland) Ltd, the Supreme Court held that maintenance and champerty also prohibit the assignment of a “bare” cause of action, that is, the transfer of the right to litigate a claim to a party who has no direct interest in that claim."

"As part of its Fourth Programme of Law Reform, in 2016 the Commission published an Issues Paper on Contempt of Court and Other Offences and Torts Involving the Administration of Justice. This sought submissions on whether the torts and offences of maintenance and champerty should be abolished, whether third-party funding should be permitted and how, if legalised, third party funding should be regulated. Only two submissions were received on these issues."

"Since publication of the Issues Paper, the legal and policy context for thirdparty funding has shifted considerably. The Commission therefore concluded that it was appropriate to publish a detailed Consultation Paper, setting out the up-to-date position in respect of the legalisation and regulation of thirdparty funding in Ireland and seeking further views. In addition, the issue of assignment of actions should be taken into account. The Commission has generally refrained from expressing even preliminary or provisional views on the issues discussed in this Consultation Paper. Its purpose is to inform debate and stimulate discussion which, it is hoped, will generate responses from all interests and perspectives that will enable the Commission to move to a final report setting out its recommendations."

 

Manitoba Law Reform Commission Report on Non-Disclosure Agreements in Misconduct Settlements

The Manitoba Law Reform Commission has published a report on the use of Non-Disclosure Agreements in the Settlement of Misconduct Claims.

A non-disclosure agreement (NDA) is a contract which restrains parties from disclosing certain information. Several high profile situations in recent years have shone light on concerns with respect to NDAs used to settle misconduct claims. This includes the harm which can be perpetuated when NDAs are used to silence victims of misconduct, particularly sexual misconduct, in exchange for money.

Proponents of NDA legislation voiced concerns over their use to shut up complainants and potentially perpetuate wrongdoing. On the other hand, the Commission was cautioned about the potential negative impacts that proposed legislation could have on complainants, respondents, and the legal system in Manitoba at large. These negative impacts could include: an increase in lengthy, public and potentially contentious court hearings, potential contractual uncertainty, a decrease in the significant number of out-of-court settlements, and the exacerbation of access to justice issues.

The Commission recommends that any legislation should be drafted narrowly and cautiously, and address only the most pressing concerns.

• any legislation should govern NDAs which prohibit or restrict the disclosure of information concerning claims of harassment, discrimination and abuse.
• it should only require that a complainant have a reasonable opportunity to receive independent legal advice in order for an NDA to be valid and enforceable.
• it should indicate that pre-dispute NDAs (NDAs that are signed by parties before a claim of misconduct is ever made, in order to prevent disclosure following a hypothetical future dispute) are unenforceable.
• information can always be disclosed by a complainant: (1) as required under provincial or federal law, (2) to their lawyer, (3) to persons qualified to provide medical, psychological, mental health, spiritual, or other related support, (4) as required to financially account for, dispose of, or invest the settlement funds, or (5) as required for income tax reporting.

The report examines the state of the law on NDAs in many Canadian provinces, the United States, Ireland, Australia and the United Kingdom.

Updated GlobaLex Research Guides

The GlobaLex collection at the New York University Law School has updated a number of its research guides on international and comparative law:

• Comparative Civil Procedure: Finding Primary and Secondary Sources: "The comparison of legal systems has for a long time been an essential branch of legal research and jurisprudence. It has become even more important and relevant in our era of globalization, an era in which there is no field of law that can base its knowledge exclusively on national ideas and rules of procedure. Peter Gottwald sees the comparison of legal systems leading 'not only to a better knowledge of foreign law but also corresponding to the internationalization of law and jurisprudence, and the globalization of politics, of trade, commerce and private lifestyle.' (...) The first part of this article lists: general works of comparative civil procedure; basic books about the civil and common-law systems; and encyclopedias and treatises covering several jurisdictions. The remainder of the article is arranged by country. Depending upon the country, the sources listed may be in English or in the vernacular (or both in some cases). Under 'Primary Sources' are listed codes of civil procedure and civil procedure statutes and, for civil law jurisdictions, basic treatises, and commentaries. Under 'Secondary Sources' are listed monographs, treatises, and commentaries (for common law jurisdictions), which may also contain the text of civil procedure code sections and statutes. The section on 'Secondary Sources' also contains collected jurisprudence, as well as a few journals."
• The Council of Europe: "The Council of Europe is the continent’s leading human rights organization. It brings together 46 European states, including all the members of the European Union, representing 700 million citizens. Its mission is to promote democracy and protect human rights and the rule of law in Europe."
• Researching Global Health Law: "This 2023 update will again include a wide array of resources, ranging from primary international law instruments to databases that contain domestic health-related legislation. Also included are suggestions for researching the relationships between global health law and international human rights, trade, and intellectual property. In terms of format, the guide emphasizes electronic sources, but some print monographs are also mentioned. All of the listed resources are available in English, although several are multilingual. The aggregate purpose of the guide is to provide a comprehensive roadmap for researching the highly complex and dynamic field of global health law, which now includes the COVID-19 pandemic within its topical scope."
• Researching Nanotechnology and Selected Legal and Regulatory Issues: "The word ‘nano’ is derived from the Greek word ‘nanos’, meaning ‘dwarf’ or ‘very small man’. In the study of nanoscience and technology, this word is used to indicate a scale of measurement. Nanotechnology, according to the European Commission, is a branch of science and engineering that is devoted to designing, producing, and using structures, devices, and systems by manipulating atoms and molecules at the nanoscale, i.e., having one or more dimensions of the order of 100 nanometres (100 millionths of a millimeter) or less. In layman’s term, it is the study of nanoscale chemicals (...) At the beginning of this century, most of the developed countries started initiatives to exploit nanotechnologies treating these as ‘the wave of the future’. The policymakers and stakeholders involved in dealing with nanoparticles and nanomaterials have frequently endorsed nanotechnologies as important catalysts that promise to play a crucial role in harnessing the potentials of the so-called fourth industrial revolution. The legal and regulatory discussion on nanotechnology mostly rotates around the study of chemical substances, the environment, occupational health and safety, product liability, and consumer protection etc."

Analysis of the Anti-Vaccine Mandate Protests

Here are a few articles and podcasts to help understand the legal measures adopted to put a halt to the anti-vaccine mandate occupation of downtown Ottawa that ended last weekend.

• The Law Bytes Podcast, Episode 118: Leah West on the Canadian Government’s Invocation of the Emergencies Act: "After several weeks of protests, occupation, and border crossing blocking, the Canadian government took the unprecedented step last week of invoking the Emergencies Act. The situation is rapidly evolving and still being debated in the House of Commons. Dr. Leah West is an Assistant Professor of International Affairs at the Norman Paterson School of International Affairs at Carleton University and one of Canada’s leading experts on national security law. She joins the Law Bytes podcast to discuss rules surrounding the Emergencies Act and the implications of the government’s recent move to invoke it."
• 'Freedom convoy': The good, the bad, and the ugly constitutional aspects (Canadian Bar Association)
• Emergency! Can the Federal Government Freeze Assets in a “Public Order Emergency”? (Administrative Law Matters blog)
• New emergency measures: implications for financial services providers (Osler)
• Superior Court freezes millions in cash and crypto donations raised by freedom convoy organizers (Law Times) - article about the Mareva injunction obtained by lawyers acting on behalf of Ottawa downtown residents who launched the class action lawsuit against the convoy occupation

There is tons more out there. 

CanLII Adds More Law Books

CanLII, the Canadian Legal Information Institute, has recently added new textbooks to its commentary collection.

It has added entirely new or updated materials on:

• Civil Procedure and Practice in Ontario
• Domestic Violence and Access to Justice: A Mapping of Relevant Laws, Policies and Justice System Components Across Canada
• Tort Law: Cases and Commentaries

CanLII is a portal funded by Canada’s provincial and territorial law societies to make legal information content (court judgments, tribunal decisions, statutes and regulations, commentary) available to Canadians free of charge.

In recent years, it has been rapidly expanding its offerings of legal commentary, including law reviews, reports, newsletters and thousands of case commentaries.

Alberta Law Reform Institute Report for Discussion on Personal Property Security Act

Last month, the Alberta Law Reform Institute (ALRI) published a Report for Discussion on the Personal Property Security Act.

The report offers a number of suggestions for public discussion with the goal of updating the province's Personal Property Security Act in keeping with recommendations made by the Canadian Conference on Personal Property Security Law (CCPPSL):

"Every Canadian province and territory, except for Quebec, has enacted a Personal Property Security Act [PPSA]. Although there are minor variations across jurisdictions, these statutes are substantially uniform. Alberta’s current Personal Property Security Act came into force on October 1, 1990. The enactment of the PPSA transformed secured transactions law in Alberta by sweeping away many of the restrictions and limitations that impeded the use of secured credit. It replaced the piecemeal approach that formerly governed with a comprehensive and rational system that fostered certainty, transparency and flexibility (...)"

"Although the PPSA produced a significant improvement in the law, experience with the legislation over the course of the last three decades has revealed several instances where improvements or clarifications are desirable. In some cases, the need for reform is driven by technological advances. When the PPSA was first enacted, electronic banking and electronic commerce were in their infancy (...)"

"The CCPPSL is an organization of provincial and territorial government officials and academics. It has played a leading role in the design of the PPSA model that is used in Alberta. The CCPPSL Report of June 2017 made proposals for changes to the PPSA. These recommendations were fully implemented in Saskatchewan, which proclaimed the amendments into force on June 22, 2020. The proposals have been partially implemented in British Columbia and Ontario. We expect that other provinces will be similarly guided by the CCPPSL Report, and we propose that Alberta update its PPSA through the implementation of the CCPPSL recommendations."

The ALRI was established in 1967 by the Government of Alberta, the University of Alberta and the Law Society of Alberta for the purposes of conducting legal research and recommending reforms in the law. Funding for ALRI’s operations is provided by the Government of Alberta, the University of Alberta and the Alberta Law Foundation.

Law Commission of New Zealand Issues Paper on Class Actions and Litigation Funding

The New Zealand Law Commission has published an Issues Paper on Class Actions and Litigation Funding as part of a consultation on whether the country should adopt a statutory class actions regime and whether third party litigation funding would be desirable, and if so, how it should be regulated:

"Our review forms part of wider and ongoing efforts to improve the affordability and efficiency of litigation. As a mechanism for collective redress, class actions offer the prospect that claimants with a factual or legal issue in common can group their claims together into a single proceeding. Litigation funding provided by a commercial funder may facilitate access to civil justice by covering some or all of a claimant’s legal costs in exchange for an agreed percentage of any compensation awarded."

"At the same time, class actions and litigation funding have attracted some public notoriety in comparable jurisdictions overseas, where media attention has focussed on issues such as the wider impacts of class actions on the business environment and litigation funders’ commissions. The crucial question is whether the potential benefits of class actions and litigation funding in terms of promoting access to civil justice can be realised in a way that manages the risks and outweighs any disadvantages they may give rise to."

"This Issues Paper summarises the various issues that arise and explores some of the options for addressing them. We seek submissions and comment from interested parties. The Commission is committed to taking into account te ao Māori across all of its law reform work. The class action, as a mechanism for facilitating collective redress, may be particularly amenable to analysis from Māori perspectives and we welcome submissions and comment in that regard."

The paper looks at the situation in many other jurisdictions where a class actions regime does exist, including the US, Canada, Australia, and England and Wales.

Earlier Library Boy blog posts on the topic include:

• British Columbia Law Institute Blog Series on Financing Litigation (October 30, 2017)
• Victoria Law Reform Commission Report on Litigation Funding and Class Proceedings (June 20, 2018)
• Australian Law Reform Commission Report on Class Action Proceedings and Third-Party Litigation Funders (January 29, 2019)

Australian Law Reform Commission Report on Class Action Proceedings and Third-Party Litigation Funders

The Australian Law Reform Commission (ALRC) recently published its report Integrity, Fairness and Efficiency—An Inquiry into Class Action Proceedings and Third-Party Litigation Funders.

Among other things, the report examines to what extent class action proceedings and third-party litigation funders should be subject to national regulation, and whether there is adequate regulation of conflicts of interest between third-party litigation funders, lawyers and class members.

According to the Commission's media release of January 25, 2019:

"The ALRC conducted over 60 consultations with stakeholders and received over 75 submissions to advance Report 134 and its 24 recommendations for reform. The recommendations aim to promote fairness and efficiency in class action proceedings; protect litigants from disproportionate costs; and assure the integrity of the civil justice system, and include recommendations to:

• provide mechanisms in statute and legal frameworks for the Federal Court to deal effectively with competing class actions;
• provide mechanisms by which the Federal Court can appoint an independent costs referee to establish the reasonableness of legal costs in class action matters, and by which the Court can tender for settlement administration services;
• increase transparency and open justice for class action settlements;
• decrease the risk of ligation funders’ failing to meet their obligations or exercising improper influence through a statutory presumption in favour of securities for cost, and greater Court oversight of funding agreements which must indemnify the lead plaintiff against an adverse costs order;
• enhance access to justice and decrease costs to litigants through the introduction of a limited percentage-based fee model for solicitors; and
• introduce a voluntary accreditation scheme for solicitors acting in class action proceedings."

Related Library Boy posts include:

• British Columbia Law Institute Blog Series on Financing Litigation (October 30, 2017)
• Victoria Law Reform Commission Report on Litigation Funding and Class Proceedings (June 20, 2018)

Victoria Law Reform Commission Report on Litigation Funding and Class Proceedings

The Victoria Law Reform Commission in Australia has tabled a final report in the state parliament on Access to Justice - Litigation Funding and Group Proceedings:

"Each of the three components—litigation funding, contingency fees, and class actions (group proceedings)—does, or has the potential to, contribute to access to justice. Litigation funding reduces the risks to litigants of taking proceedings; removing the ban on contingency fees could introduce another means of doing so; and class actions take advantage of economies of scale."

"This report, informed by the overarching issue of access to justice and the aim that litigants are not exposed to unfair risks or disproportionate cost burdens, examines the specified issues in the terms of reference, and makes recommendations in respect of each of them."

"In relation to litigation funding, the Commission makes recommendations for national regulation of the industry and greater transparency when a litigation funder is involved in proceedings. The Commission does not recommend fixed caps or limits on funding costs; rather, it encourages appropriate court control."

"In relation to the prohibition on law firms charging contingency fees, the Commission recommends that, in principle and in appropriate areas of law, lawyers should be allowed to charge contingency fees. This is also a matter which should be developed nationally, in the interests of consistency."

"In relation to class actions, the Commission’s recommendations seek to strengthen the Court’s powers [note: the Court refers to the state's Supreme Court], particularly in ensuring that a successful outcome is not unduly eroded by legal and funding fees. The Commission also makes recommendations to improve efficiency and accountability, which should reduce delays and associated costs, but has concluded that the introduction of a pre-commencement certification requirement is neither desirable nor necessary."

The state of Victoria is in south-eastern Australia and its capital is Melbourne.

British Columbia Law Institute Financing Litigation Legal Research Project

This is a follow-up to the Library Boy post of October 30, 2017 entitled British Columbia Law Institute Blog Series on Financing Litigation.

The British Columbia Law Institute (BCLI) website recently published an article that looks at a number of models to improve access to the justice system:

"Throughout the consultation phase of the Financing Litigation Legal Research Project, several ideas were raised to consider other ways to improve access to justice that fell outside the scope of the project. Chapter 12 of the study paper outlines five alternative ideas to improve access to justice, namely:

1. Increased use of alternative dispute resolution processes;
2. Expansion of legal aid;
3. Promotion of cy-près orders;
4. Community Contribution Companies; and
5. New business models.

While the chapter does not include a full analysis of how each idea works, or could work, it does offer an an overview to give the reader some food-for-thought over what other opportunities may exist to continue examining how people pay for litigation."

The article also summarizes ideas on access to justice from other sources, including West Coast LEAF, BC’s Civil Resolution Tribunal, the Law Society of Alberta and the Michigan Law Revision Commission.

British Columbia Law Institute Blog Series on Financing Litigation

This is a follow up to the Library Boy post of February 8, 2016 entitled BC Law Institute Starts Project on Cost Effective Ways of Hiring Lawyers.

Earlier this month,  the British Columbia Law Institute published a Study Paper on Financing Litigation that looks at six financing models that have emerged both in Canada and internationally that litigants use to pay for litigation:

• Unbundled legal services
• Third-party litigation funding
• Alternative fee arrangements
• Crowdfunding
• Legal expense insurance
• Publicly funded litigation funds

The Institute has started a 6-part blog series on the topic. Each blog post will showcase one of the financing models. The first post is on Unbundled Legal Services.

Le Devoir Article on Vexatious Litigants

This is a follow up to the Library Boy post of January 18, 2016 entitled Le Devoir Feature Article on Growing Problem of Vexatious Litigants.

Vexatious liigants are aggressive litigants who take their grievances to an extreme, inundating courts and tribunals with numerous detailed complaints and multiplying procedures, and often abusing staff with threatening language.

In today's issue of the French-language Montreal daily Le Devoir,  there is another article about the phenomenon.

The problem has become so bad that Québec authorities have created a registry of abusive litigants who need to obtain the green light from a  judge before they can lodge a complaint in front of any court or tribunal. There are some 175 individuals on the list.

The article quotes Sylvette Guillemard, professor at the Law Faculty of Université Laval in Quebec City. She is supervising a PhD thesis by a student of psychoanalysis and psychopathology at Université Paris 7. The thesis is about people with "délires de revendication" (frenzies of demands or claims).

Guillemard explains that vexatious litigants tend to be men between the ages of 40 and 60, highly intelligent, self-represented and convinced of their superiority over everyone including judges and lawyers.

Series in Montreal Daily La Presse on Quebec's New Code of Civil Procedure

The Montreal French-language daily La Presse today published a series of articles on Quebec's new Code of Civil Procedure that came into force on January 1, 2016.

• Nouveau Code de procédure civile: qu'en disent les experts ?
• Les avocats de nouveau «maîtres en solutions»
• Régler les différends ailleurs qu'au tribunal
• Plus de pouvoirs pour les juges
• Ce qu'il faut savoir sur la réforme
• Code de procédure civile: question de vocabulaire
• La médiation déjà au coeur du système judiciaire 
• Le Code de procédure civile en chiffres

Earlier Library Boy posts about the new Code of Civil Procedure:

• Quebec's New Code of Civil Procedure in Force Since January 1st (January, 12 ,2016): "Quebec's new Code of Civil Procedure came into force at the beginning of the year. The Quebec Ministry of Justice website has posted material explaining the main highlights of the changes (...)"
• Quebec Legal Info Service CAIJ Adds New Annotated Code of Civil Procedure (January 21, 2016): "CAIJ, the Centre d'accès à l'information juridique (the network of courthouse law libraries associated with the Québec Bar Association), has recently added an annotated version of the province's new Code of Civil Procedure (...). It includes the text of the Code, a list of changes in legal terminology, a concordance between the new and old Codes, background commentaries for each section from the provincial Ministry of Justice, links to related regulations, links to related research questions answered by the CAIJ libraries, as well as links to debates in the Québec National Assembly and positions adopted by the Québec Bar Association."

Quebec's New Code of Civil Procedure in Force Since January 1st

Quebec's new Code of Civil Procedure came into force at the beginning of the year.

The Quebec Ministry of Justice website has posted material explaining the main highlights of the changes:

"The new Code of Civil Procedure is intended to make the civil justice system more accessible, while protecting the rights of all parties to state their claims before a court.
To reduce delays in the justice system, the new Code gives priority to amicable dispute resolution processes such as mediation, arbitration and conciliation, which are less confrontational, more accessible and more likely to ensure a quick outcome."

"Parties that opt for a traditional trial in court must ensure that all their applications, pleadings and evidence are proportionate to the nature and complexity of the case, in order to prevent abuses of procedure."

"Judges will have greater powers to manage cases, in particular to ensure compliance with the principles of proportionality and cooperation at the heart of the new Code of Civil Procedure. For example, they will be able to reduce the number of examinations and expert opinions required; both these elements have often been identified as causing significant costs or delays for citizens."

Lex Machina Wins American Association of Law Libraries New Product of the Year Award

The American Association of Law Libraries (AALL) announced today that Lex Machina’s Legal Analytics product is the winner of its 2015 New Product Award:

"Lex Machina’s Legal Analytics product, created by experts at Stanford’s Computer Science Department and Law School, assembles data sets from millions of pages of legal information that contain valuable information on districts, judges, law firms, lawyers, parties, and patents. The Software-as-a-Service product helps users predict the behaviors and outcomes that different legal strategies will produce, enabling them to win cases and close business."

The product can help litigators answer questions such as:

• How likely is a judge to grant or deny a specific motion?
• How long do cases take to terminate, get to trial, or get to the claim construction hearing before a judge?
• How likely is a judge to find patents, trademarks or copyrights infringed, invalid, or unenforceable?
• Opposing counsel’s experience before specific judges and courts,
• Opposing counsel’s client list
• Which law firms have the most experience against opposing counsel
•  A party’s experience before specific judges and courts, find the timing from filing to key events in cases involving them, and view damages awarded in patent cases
• Total number of times each patent has been asserted
• Total findings of infringement, invalidity, and unenforceability of patents, damages awarded, parties involved
•  etc.

According to the AALL:

"This award honors new commercial information products that enhance or improve existing law library services or procedures or innovative products which improve access to legal information, the legal research process, or procedures for technical processing of library materials. A 'new' product is one which has been in the library-related marketplace for two years or less."

New Zealand Law Commission Issues Paper on Legal Proceedings Against the Crown

The Law Commission of New Zealand released an Issues Paper last week entitled A New Crown Civil Procedure Act for New Zealand which proposes a new law governing the ability of citizens to bring civil legal proceedings against the Crown and its servant.

From the press release:

"The Crown Proceedings Act is the statute through which New Zealanders can sue the Crown. In the Commission’s view, and in the view of many who work with it, the current Act is convoluted and difficult to follow. The Act has not been updated since it was passed in 1950. It is in need of modernisation to reflect the realities of government in the twenty-first century."

"The proposed statute is not designed to increase the scope of Crown liability, but would better enable the Courts to focus on the allegations made against the Crown (...)"

"The President of the Commission, Sir Grant Hammond, describes the Crown Proceedings Act as 'a statute of considerable constitutional significance'."

" 'Although the Crown Proceedings Act sounds as if it is simply dry ‘lawyer’s law’, it has the important purpose of reflecting New Zealand’s commitment to ensuring that people are able to seek appropriate legal redress against their government. It forms an important pillar of the rule of law,' says Sir Grant."

"An important topic covered in the Issues Paper is the Crown’s ability to refuse to disclose certain information during litigation because of reasons of national security. The Commission is raising a number of options, including the possibility of court hearings in which material might be relied on by the Crown but not fully disclosed to the other side."

British Columbia Law Institute Report on Contribution after Settlement under the Negligence Act

The British Columbia Law Institute (BCLI) has released a new Report on Contribution after Settlement under the Negligence Act.

According to the press release:

" 'When a person suffers damages or a monetary loss at the hands of more than one wrongdoer, often the quickest and simplest way to deal with the dispute is to settle with some of the wrongdoers,' explained BCLI chair Tino Di Bella. 'But the way the law is being applied in BC creates disincentives to these partial settlements, by depriving the settling wrongdoers of the finality traditionally found in a settlement agreement.'  "

"The report, entitled Report on Contribution after Settlement under the Negligence Act, recommends that the legislature amend the Negligence Act to clarify that statutory rights to contribution and indemnity among wrongdoers do not take precedence over settlement agreements."

"Noted Mr. Di Bella: 'Enacting these reforms will improve the civil-justice system for litigants, by giving them an exit from protracted, complex litigation, and British Columbians generally, by freeing up scarce and valuable judicial resources'. "

In addition to the report, the website includes consultation documents and backgrounders.

Alberta Law Reform Institute Final Report on Arbitration Act: Stay and Appeal Issues

The Alberta Law Reform Institute (ALRI) recently published its Final Report 103 - Arbitration Act: Stay and Appeal Issues:

"A modern Arbitration Act became law in Alberta in 1991. In the two decades since, certain issues have arisen in Alberta case law which affect the ideal functioning of the arbitration system ... The Final Report contains ALRI’s recommendations for reform, which are outlined in this Summary."

"ALRI reaffirms the two fundamental principles underlying the Alberta Act: the principle of party control and the principle of restricted court intervention. ALRI relied on these principles when formulating final recommendations in order to maintain conceptual consistency within the Alberta Act."

"The first issue concerns partial stays of competing court proceedings under section 7(5). Partial stays work well when arbitrable and litigable issues are reasonably separable, which is a prerequisite to the operation of section 7(5). But what should a court do when they cannot be reasonably separated or the competing litigation involves additional parties who are not subject to the arbitration agreement or both? (...)"

"Alberta courts have produced some strikingly divergent lines of case law on issues which essentially concern how accessible arbitral appeals should be. The policy basis of appeals under section 44 of the Alberta Act seems to be unclear, ambiguous or even contradictory. The legislation provides appeal routes and yet undermines them at the same time. ALRI has therefore rethought the role of arbitral appeals in a more fundamental way and proposes a new balance between the competing policy considerations. ALRI recommends that arbitration parties should continue to be able, by agreement, to appeal an arbitral award to the Court of Queen’s Bench on whatever basis the parties decide. This promotes the principle of party control over the arbitral process. Consultation feedback also favoured retaining such consensual appeals. However, ALRI proposes that this should be the only appeal route. ALRI recommends repealing non-consensual appeals on a question of law by leave of the court. Nova Scotia and Quebec similarly do not provide such an appeal route. Strengthening the principle of restricted court intervention in the Alberta Act also enhances the principle of party control. Although consultation feedback was more mixed on this issue, a slight edge of respondents advocated repealing these appeals as well..."

US Court Dismisses Copyright Lawsuit Against Google Books Project

Judge Denny Chin of the United States Court of Appeals for the Second Circuit in New York today dismissed the copyright violation lawsuit that US author groups had launched against  Google.

The search giant has been digitizing millions of books to create a massive online library / bookstore but the project was opposed in a lawsuit by US publishers and author organizations dating back to 2005. The publishers' group split off and settled earlier.

The judge wrote that the project respects authors' rights and is a case of "fair use" (equivalent to fair dealing in Canadian copyright law):

"It preserves books, in particular out-of-print and old books that have been forgotten in the bowels of libraries, and it gives them new life. It facilitates access to books for print-disabled and remote or underserved populations. It generates new audiences and creates new sources of income for authors and publishers. Indeed, all society benefits."

The Infodocket website has full coverage and reaction from parties and observers. It also includes a full-text of the court decision.

Earlier Library Boy posts about the Google Book controversy include:

• Google Settles Lawsuit With U.S. Authors and Publishers (October 28, 2008)
• Google Book Scanning Project Settlement: More Reaction and Analysis (February 23, 2009)
• Association of American Publishers on Recent Google Book Project Settlement (February 24, 2009)
• Controversy Heats Up Over Google Book Search Settlement (August 24, 2009)
• American Library Associations Publish Summary of Google Books Litigation Court Filings (October 6, 2009)
• American Library Association Website on Google Book Settlement (October 26, 2009)
• Guide to the Amended Google Book Settlement(November 30, 2009)
• Canadian Authors Launch Petition Against Google Book Settlement (January 5, 2010)
• Coverage of Last Week's Google Books Settlement NYC Court Hearing (February 22, 2010)
• Roundup of Commentary on Rejected Google Book Settlement (March 26, 2011)
• Update to Google Books Bibliography (August 29, 2011)
• Three Years of the Google Book Settlement (July 23, 2012): "Walt Crawford devotes the entire August 2012 issue of his Cites & Insights publication to what happened to the proposed Google Book Settlement (...) Some of the topics Crawford covers include monopoly and antitrust; privacy and confidentiality; the public domain, open access, copyright; libraries and metadata; authors and publishers."