Most Recent Issue of the Canadian Law Library Review

The most recent issue of the Canadian Law Library Review (CLLR) is available online.

The CLLR is the official journal of the Canadian Association of Law Libraries (CALL). It is an open access publication.

Check out the features articles:

• Legal Writing Tick List for Beginners and Upward by  C.J. Shaw (starts on p. 10): "A tick list is a type of checklist. My published legal writing aims to inspire others to create publishable legal writing. I want this piece to be a valued teaching and learning experience. It ends with a reflection activity for readers to assess this article. Doing a legal writing project is a worthwhile activity, and it is doable without taking oneself too seriously. This article is an example of informal legal writing when compared to formal legal writing (i.e., legal drafting of documents and legislation). It includes quirky (unexpected) literary content. Various entries contain a reminiscence by American author and sportswriter Roger Kahn, an excerpt from the script for the classic film The Thomas Crown Affair (1968), advice from a parent of A.A. Milne, and a bit of modern common sense about knowledge and ideas attributable to 17thcentury philosopher John Locke. I also give feedback on two general legal writing rules."
• Legal Writing and Communication: A Bibliography by Susan Barker (starts on p, 17): "The purpose of this bibliography is to provide a selective, annotated list of practical and theoretical resources on legal writing and other forms of legal communication. The bibliography includes resources on legal writing generally, as well as on specific subjects of interest: academic writing, advice for law students, artificial intelligence, cognitive science, factums and memoranda, inclusive language, judicial writing, plain language, style guides, visual legal communication, writing about Indigenous peoples, and social media. Most of the items listed are Canadian resources published since 2000, although non-Canadian materials in subject areas where there is little Canadian research have also been included."

Geek in Review Podcast Interview on the Artificial Intelligence Hype Cycle

The most recent episode of the Geek in Review Podcast co-hosted by Greg Lambert and Marlene Gebauer is available.

Lambert is a former president of the American Association of Law Libraries.

The episode features a talk with Tony Thai and Ashley Carlisle of HyperDraft:

"It has been 6 months since their last appearance, when the AI Hype Cycle was on the rise. We wanted to get them back on the show to see where we are on that hype cycle at the moment."

"While hype around tools like ChatGPT has started to level off, Tony and Ashley note there is still a lot of misinformation and unrealistic expectations about what this technology can currently achieve. Over the past few months, HyperDraft has received an influx of requests from law firms and legal departments for education and consulting on how to practically apply AI like large language models. Many organizations feel pressure from management to 'do something' with AI, but lack a clear understanding of the concrete problems they aim to solve. This results in a solution in search of a problem situation."

"Tony and Ashley provide several key lessons learned regarding limitations of generative AI. It is not a magic bullet or panacea – you still have to put in the work to standardize processes before automating them. The technology excels at research, data extraction and summarization, but struggles to create final, high-quality legal work product. If the issue being addressed is about standardizing processes or topics, then having the ability to create 50 different ways to answer the issue doesn’t create standards, it creates chaos."

Canadian Federation of Library Associations Summer 2023 Update

The Canadian Federation of Library Associations (CFLA) has published an update about its recent activities.

The Canadian Association of Law Libraries is a member of the Federation.

The update includes news about work on the CFLA's first strategic plan; the work of committees on cataloguing and on copyright issues (including position papers on AI and data mining); advocacy regarding book removal requests (false allegations of child pornography in public libraries); and Indigenous issues.

Law Bytes Podcast on Benefits and Risks of AI to the Legal Profession

In his most recent LawBytes podcast, University of Ottawa law professor Michael Geist talks with his law faculty colleague Amy Salyzyn about the Benefits and Risks of AI to the Legal Profession:

"ChatGPT has taken the world by storm in recent months with the potential of generative AI – both positive and negative – top of mind in just about every sector. That is certainly true for the legal profession, where AI tools are becoming increasingly common and courts and regulators try to grapple with the implications. Amy Salyzyn is a colleague at the University of Ottawa who has written extensively in the area of legal ethics, lawyer regulation, the use of technology in the delivery of legal services and access to justice. In the coming academic year she’ll be teaching a course on AI and the legal profession and she joins me on the Law Bytes podcast to talk about the latest on AI technology for law and the legal, regulatory and ethical challenges it brings."

Recent Justice-Related Documents from the Government of Canada

The Government of Canada's Weekly Acquisitions List can be a great way to discover new research reports published by various public bodies and agencies of the federal government. It is a record of all publications catalogued in the previous week.

Here are a few recent additions of justice-related documents:

• Financial industry forum on artificial intelligence : a Canadian perspective on responsible AI: "The rapid advancement, proliferation, and transformative nature of the artificial intelligence (AI) technology has accentuated the need to consider ethical, legal, financial and social implications of its development and deployment. This is where well-designed risk management practices come in, comprised of robust testing and evaluation frameworks, implementation of clear and transparent decision-making processes, and creation of mechanisms for accountability and redress in the event of harm (...) It was with this mindset of imagination and exploration in which the Financial Industry Forum on Artificial Intelligence (FIFAI) had operated — a gathering of Canada’s finest financial services experts in the application of AI, mixed with representatives from government bodies, and academia. We listened to leading AI experts and influential regulators from several countries, and then debated those learnings with the objective of safely harnessing AI potential to contribute significantly to Canada’s economy."
• Honouring the children who never came home : truth, education and reconciliation : interim report of the Standing Senate Committee on Indigenous Peoples: "This report begins with an overview of the history of residential schools in Canada and the work of the Truth and Reconciliation Commission of Canada (TRC). The report then discusses issues identified by witnesses which hinder Indigenous families from locating and bringing their children home, including access to records, measures to access and examine burial grounds, legal protections for burial grounds and unmarked graves and supporting the educational work of the NCTR. Based on this evidence, the report makes six recommendations that are focused on supporting Survivors, families and communities to find their missing children and finally bring them home. "
• Victims of Hate Crime, 2015-2021: "This fact sheet focuses on police-reported hate crime and, primarily, violent hate crime.2 A hate crime is defined in the UCR [Uniform Crime Reporting Survey] as a criminal violation  motivated by hate, based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation or gender identity or expression, or any other similar factor."
• Sentencing in Adult Criminal Courts in Canada in 2020–2021: "This fact sheet is based on publicly available data from Statistics Canada. It examines data from 2020–2021 ─ the first year following the onset of the COVID-19 pandemic. At that time, public health measures were put into place, which temporarily closed, postponed and/or restricted Canadian court proceedings. As a result, there was an unprecedented decline in the number of adult court cases, particularly in the first few months of 2020. It is important to keep this context in mind when interpreting the data in this fact sheet. "

Slides from July Open House of the Canadian Shared Print Network

North: the Canadian Shared Print Network is a national initiative to coordinate the evaluation and identification of uniquely held print materials, and the securing of long-term retention commitments to protect against the risk of loss of those unique titles.

It has 3 major project streams: monographs published by Canadian University Presses; Indigenous works; and scarce government documents.

It held an open house earlier in July. A video and the presentation slides are available.

Earlier Library Boy posts on the topic include:

• @Risk North Summary Report on Shared Print Preservation Programs (February 13, 2018): "As libraries witness increasing demand for online resources and dwindling circulation of print holdings, while simultaneously confronting budget and space pressures, it can be challenging to remain committed to sustaining academic libraries’ print collections. Cooperative approaches to acquiring, storing, preserving, and managing the reduction of print collections are gaining traction, employing a variety of models that seek to distribute the expense and responsibility while creating value for all parties." 
• Final Report on Creation of National Shared Print Network in Canada (September 16, 2020): "A joint working group of the Canadian Association of Research Libraries (CARL) and Library and Archives Canada (LAC) has released its final report with recommendations on the creation of a collective shared print program across Canadian libraries. The Canadian Collective Print Strategy Working Group made up of representatives from key academic, public, and government libraries, and from regional consortia makes thirteen recommendations for the successful establishment of a national shared print network in Canada..."

Law Library of Congress Comparative Report on Restrictions on Land Ownership by Foreigners

The Law Library of Congress in Washington, D.C. recently published a report on Restrictions on Land Ownership by Foreigners in Selected Jurisdictions.

The report includes individual surveys of 39 jurisdictions. The level of restrictions varies among these jurisdictions. Many countries restrict foreign ownership of land for national security or other reasons:

"(...) some have restrictions that apply to different types of land, including agricultural,  residential, and commercial land. Other types of restriction are based on the location of the land, such as near the border or military establishments. Some jurisdictions restrict  particular categories of foreigners from land ownership. Some require special permission or approval for foreigners before they can acquire land."

 According to the document, 10 of the countries surveyed do not restrict land ownership by foreigners. 

Advocates Society Report on Alarming Civil and Family Court Delays Across Canada

In late June, the Advocates Society published its report Delay No Longer. The Time to Act Is Now calling on the federal, provincial, and territorial governments to dedicate resources to the civil and family justice courts to tackle delays that are undermining faith in the justice system.

The report describes the severe impacts that delays are already having on real people and businesses who need help resolving their disputes.

The document gives a few examples:

• In Quebec, it was estimated that in 2021-2022, litigants would wait an average of 593 days between the filing of their claim in the Small Claims Division (for claims of less than $15,000) and trial.
• In British Columbia in 2022, the Supreme Court “bumped” (i.e. delayed hearings because of the lack of judicial resources) 10.9% of all long chambers applications, 24.6% of civil trials (102 bumped compared to 312 heard) and 14.4% of family trials (26 bumped compared to 154 heard).
• In Alberta, it routinely takes more than 9 months for an application longer than 20 minutes to be heard by a judge in Edmonton or Calgary; and 2 to 3 years for a trial longer than 5 days to be scheduled from the date the parties certify readiness. 
• In Ontario, it currently takes almost 1.5 years for a motion longer than 2 hours to be heard by a judge in Toronto; more than 1.5 years after the trial management conference (or more than 4 to 5 years from the issuance of the original application) for a 3-week family law trial to be heard by a judge in Brampton; and more than 4 to 5 years for a civil action to proceed from commencement to trial. 

The Society proposes more than a piecemeal approach to resolve the problem. It calls for a coordinated plan of action, including:

• measuring delay and setting targets;
• increasing resources for the justice system and deploying those resources flexibly with the use of technology;
• improving the use of technology, especially to schedule court hearings; and
• reviewing procedural rules that pose roadblocks to speedy justice.

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."

 

List of 2023 vLex Fastcase 50 Honorees

Legal information company vLex Fastcase recently published its most recent list of the top 50 people who have made significant contributions to the field.

"Created in 2011, each year the Fastcase 50 award honors a diverse group of lawyers, legal technologists, policymakers, judges, law librarians, bar association executives, and people from all walks of life. In many cases, honorees are well known, but in many others, the award recognizes people who have made important, but unheralded contributions."

" 'When we look back at the pandemic era, we will see it as a great reset in our attitudes and assumptions about legal services,' said Fastcase CEO Ed Walters. 'Even if they have had to spend more time on Zoom this year than they had planned, the 2022 class of honorees is making profound changes for the next generation of law. We celebrate these impactful advocates and inspiring innovators who are shaping the future under incredibly challenging circumstances'."

 

July 2023 Issue of In Session E-Bulletin of Canadian Association of Law Libraries

The July 2023 issue of In Session has been published. 

It is the monthly e-newsletter of the Canadian Association of Law Libraries (CALL) and contains news from CALL committees and special interest groups, member updates and events. 

Statistics Canada Article on Over-Representation of Indigenous Persons in Adult Provincial Custody

The Statistics Canada publication Juristat has published an article on Over-Representation of Indigenous Persons in Adult Provincial Custody, 2019/2020 and 2020/2021.

It found that the Indigenous incarceration rate was 8.9 times higher than the non-Indigenous incarceration rate in 2020/2021 in the five provinces covered (Nova Scotia, Ontario, Saskatchewan, Alberta and British Columbia).

Among the highlights:

• Indigenous men were most likely to experience incarceration, with almost one-in-ten Indigenous men aged 25-34 years experiencing incarceration over this period.
• In 2020/2021, the Over-Representation Index for Indigenous people was highest in Saskatchewan at 17.7 times higher than the non-Indigenous population, followed by Alberta (10.8), British Columbia (7.9), Ontario (6.3), and Nova Scotia (1.9).
• Over-representation increased in 2020/2021 by 14% from the previous year, when the over-representation index was 7.8.  Although, over-representation increased, the Incarceration rates for both Indigenous (down 18%) and non-Indigenous people (down 27%).
• The over-representation of Indigenous women in provincial correctional facilities (15.4 times higher than non-Indigenous women) was greater than for Indigenous men (8.4 times higher), in 2020/2021.
• In the three correctional services programs for which data are available, bail was used more frequently than remand for non-Indigenous persons. The ratio between average counts for bail and remand was 4.9 (that is for everyone one person in remand, almost 5 people were on bail), compared to 2.6 for the Indigenous population.

July/August 2023 Issue of AALL Spectrum

The July/August 2023 issue of AALL Spectrum is now available online.

It is a publication of the American Association of Law Libraries.

This issue has a series of feature articles on foreign, comparative and international law.

Justice Canada Report on Legal Aid

Justice Canada has published a new report on Legal Aid in Canada 2021-2022.

The report looks at sources of funding for legal aid across Canada, the number of applications, the types of clients who benefitted, the types of cases financed by the program, personnel, and the role of specialized courts in legal aid (e.g. Mental Health/Wellness/Community Courts, Drug Treatment Courts, Family/Domestic Violence Courts, etc.)

Overview of Law Reform Commission Work in Australia, New Zealand, England and Scotland

The Victorian Law Reform Commission down under has published a useful summary of recent work by similar bodies in Australia, New Zealand, England and Scotland.

It covers the last few months and shows the breadth of issues that law commissions research.

There is news about:

• efforts to reduce complexity in corporations and financial services legislation
• challenges to mining leases
• "serious road crime" 
• the sex industry
• mental health laws
• evidence in sex offences 
• privacy
• the rights of for transgender and non-binary people 
• the management of digital assets
• care for children with disabilities
• division of marital assets upon divorce
• surrogacy laws

In Canada, the Federation of Law Reform Agencies of Canada provides a similar roundup of Canadian law reform activities on a regular basis.

Canadian Association of Law Libraries Upcoming Webinar on Negotiating Tips and Tricks

The Vendor Liaison Committee of the Canadian Association of Law Libraries is hosting a webinar on July 26, 2023 from 1:00 to 2:30PM Eastern on Negotiating Tips and Tricks:

"Contract negotiations have evolved and are now more complex than ever. Listen to experienced colleagues discuss today's negotiation landscape with practical takeaways."

(...)

"In this session, you will learn:

• general approaches and strategies in negotiating contracts
• general contract language to watch out for and strategies for responding
• how to get support"

Law Society of Ontario Interview With Supreme Court of Canada Justice Michelle O’Bonsawin

The Law Society of Ontario Gazette has published a recent interview with Supreme Court of Canada Justice Michelle O’Bonsawin.

Justice O’Bonsawin is the first Indigenous justice to sit on Canada's highest court.

She discusses her background and upbringing as someone who is a French-speaking Indigenous woman from Northern Ontario, explains what being a good judge means, and offers advice to new lawyers.

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.

Law Commission of Ontario Consultation Paper on Consumer Protection in the Digital Marketplace

The Law Commission of Ontario (LCO) recently published a consultation paper on Consumer Protection in the Digital Marketplace.

The LCO is interested in looking at updates to Ontario’s Consumer Protection Act to better protect consumers when it comes to digital products and services:

"Hardly a day goes by that consumers in Ontario are not asked to click, tap, scan, or otherwise confirm 'I ACCEPT' when presented with a contract for an online product or service."

"Yet consumers, businesses, and government alike express increasing concern that this framework no longer meets contemporary needs.

• For consumers, these contracts are nearly impossible to read, frequently change without notice, have a huge cumulative footprint, and may trigger big consequences from comparatively minor transactions.
• For businesses, there is a risk of regulatory compliance, a risk to reputation, and uncertainty over terms and practices that may be deemed deceptive or unfair.
• For governments, there is an interest in maintaining consumer confidence in a robust digital marketplace, ensuring a fair playing field for businesses, and fostering laws which are in tune with the times."

(...)

"Broadly speaking, the Consultation Paper asks two sets of questions."

"First, the LCO considers if or how Ontario’s Consumer Protection Act should be updated to better protect consumers considering the new, complex, and expansive range of consumer risks in the digital economy. As such, the Consultation paper addresses what might be considered classic or traditional consumer protection issues and contracts principles, including:

• Notice and disclosure
• Deception and unconscionability (unfair practices)
• Unilateral changes to contracts
• Contracting with youth and vulnerable groups
• Access to justice, dispute resolution, and systemic oversight."

"Second, the Consultation Paper considers the effect and impact of important new technological and business practices that may be unfamiliar to many consumers. This includes deceptive 'dark pattern' software and contract practices, network effects, platform lock-in, monetization practices, and algorithmic content shaping. These developments challenge many traditional principles of consumer protection law, often with inconsistent and unpredictable results."

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."

Searching for Dockets and Court Documents by Country

The law library at the University of California in Los Angeles (UCLA) has published a research guide to help people seek court dockets and documents from around the world. As the authors state, it is a "work in progress".

There is an article in the July/August 2023 issue of AALL Spectrum describing the guide.