Suing Apple over FaceTime

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In December 2014, a young child died in a car accident. The culprit: allegedly a distracted driver. The driver was on FaceTime.

The parents of the child are suing Apple for the iPhone’s design. The parents allege that Apple was negligent for not warning users that FaceTime was dangerous “when used or misused in a reasonably foreseeable manner” and by not including technology in the cell phone to disable certain functions while driving.

Does Apple have an obligation to warn users? It is already legislated in most jurisdictions to not use your cellphone while driving. If people need to be warned by Apple about the dangers of FaceTiming and driving, perhaps those drivers shouldn’t be driving in the first place.

The more interesting argument is the technology argument. Is it careless for Apple to not institute features that disable cellphone functions while driving? What is the standard of care to be applied to Apple?

In the statement of claim, the plaintiffs state that the Apple should know or should have known that drivers would be distracted by the features on their iPhones. And that Apple breached its duty of care by failing to use reasonable care in the design and manufacture of the phone by not using the lock-out technology.

This is a novel argument. I predict that Apple will move to strike the claim before filing a defence.

But if Apple is unsuccessful, would this open the floodgates? When Apple / Google / Samsung etc. makes products, what duty of care do they have to their users? Do they have a duty of care to lock-out users while driving? Do they have an obligation to build products that ensure privacy by design? Particularly so that Apps don’t steal data? Is failing to prevent Apps from stealing your data negligent?

Diamond & Diamond: More Questions than Answers

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Last week Diamond & Diamond was unmasked by the Toronto Star Reporter, Michele Henry. She unveiled lewd text messages between lawyer Jeremy Diamond and a staff member and revealed that the firm operated mostly as a referral service. Meaning that the firm advertised to the public and then referred the cases to other law firms for a fee.

Her articles raised more questions than answers to me.

  1. Michele Henry is a food reporter with the Toronto Star. Why did she feel compelled to write about law firms all of the sudden?
  2. Why write about this now? Was she tipped off? Who tipped her off? What were their motivations? Or has she been investigating this independently for months?
  3. Will Michele Henry investigate other law firms? Diamond & Diamond is not the only firm that feeds off referral fees. Will she take on the other law firms that advertise on TV?
  4. Diamond & Diamond has been feeding off referral fees for years. Other lawyers have known about this for years. Did lawyers have an obligation to blow the whistle? Are personal injury/ insurance defence lawyers complicit in Diamond & Diamond’s scheme?
  5. Assuming advertising needs to be controlled, with the ubiquity of the internet, how do we control lawyers’ advertising?
  6. And lastly, will reporters look into law firms’ connections with hospitals? (Some law firms get client referrals directly from hospital employees. And is that source of referrals ethical?)

 

 

Canada’s Most Important Challenge to Healthcare

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“There was no difference between men, in intelligence or race, so profound as the difference between the sick and the well.” – The Great Gatsby 

What is the best way to run our health care system? Is it privatized? Hybrid? Or, Public?

Right now, in British Columbia Dr. Brian Day is challenging the very way we fund essential health care services. He argues that the province’s ban on the purchase of private insurance for essential medical procedures is unconstitutional. As the ban requires many patients to endure gruelling wait times, thereby exacerbating their medical conditions. The trial is predicted to go for 6 months.

Eventually, the case will be appealed to the Court of Appeal and then to the Supreme Court of Canada (its true destination). The Supreme Court of Canada’s decision will have national ramifications, and may change the way we fund health care across the country.

“Dr. Day argues that Canada’s inefficient system is the product of a wasteful bureaucracy, a lack of competition and a misguided attachment to universal coverage.”

Although it could be said that a lack of competition has fostered a lower level of customer service from doctors, this lack of competition has allowed the government to keep health care costs down. Doctors are prevented from charging too much, and the costs of administration are controlled.

Regardless of how this case resolves, I predict that a hybrid system for essential medical services will continue to creep in. Technology is eroding the boundaries of provincial control, the baby boomer generation is aging, and the economy feels as unstable as ever. All of these conditions are creating a time of uncertainty and are paving the way for change.

I personally have huge concerns about the erosion of the public health care system. The ramifications of which will be felt by the most marginalized.

Poor. Rich. White. Black. Jewish. Christian. Criminal. Saint. Heterosexual. Homosexual. No matter how we identify or are identified, we are all entitled to health care. And not just any health care, but good health care.

Reconstructing the Past: Preparing for Trial

Trials are all about reconstructing the past, mainly through oral testimony. This oral testimony often derives from memory. However, memory is a fickle, self-serving beast. And it must be measured against objective evidence.

As lawyers, it is our job to test our client’s words against anything objective. We can Google the terrain, visit the site, speak to witnesses, watch videos, stare at pictures, read thousands of pages of documents, and cross-examine our own clients. By going millimeter by millimeter through the chronology, we can begin our preparation for trial.

A great lawyer once told me that ultimately preparing for trial is about (1) building your case (which starts from the first witness) and (2) building the platform for your client to sing.

In building the platform, you can use the other side’s evidence. You don’t need to fight every piece of evidence. By choosing the ultimate battle, you can cleanly reconstruct your version of the past for the judge.

However, knowing the battle to pick comes from knowing the case. And the only way to know the case is to comb through all the evidence, millimeter by millimetre. You cannot trust your client alone.

 

 

Judge Richard Posner: Let Fairness Prevail

A man walks into your law office. He asks: “what are my chances in winning this lawsuit?”

The answer?

Ask yourself, “how would a wise, moral man, with no legal training, decide this case?”

In Divergent Paths: The Academy and the Judiciary, famous American Judge Richard Posner explains that “most judges evaluate cases in a holistic, intuitive manner, reaching a tentative conclusion that they then subject to technical legal analysis.” This is because judges simply want to do what is fair.

Fairness is why the Courts have applied Rule 2.1 of the Ontario Rules of Civil Procedure so robustly. Sometimes litigants initiate outlandish lawsuits that have no right in clogging up the justice system. Recognizing this, the Courts have welcomed the careful application of Rule 2.1 to dispose of abusive claims.

Rule 2.1.01 (1) states that a court may dismiss an action if it looks to be frivolous, vexatious, or an abuse of process. An example of an abusive claim could be a case where a person sues another person for the fifth time over the same dispute. Or, maybe it’s a claim for $93.9 million in reference to “the illegal relationship between the defendant and the “Superior Court of Toronto; its judges and officers” (Raji v. Borden Ladner Gervais LLP, 2015 ONSC 801)

In Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733, the Court of Appeal of Ontario explains that:

[8]         … the court has recognized that the rule should be interpreted and applied robustly so that a motion judge can effectively exercise his or her gatekeeping function to weed out litigation that is clearly frivolous, vexatious, or an abuse of process. However, the use of the rule should be limited to the clearest of cases where the abusive nature of the proceeding is apparent on the face of the pleading and there is a basis in the pleadings to support the resort to the attenuated process.

Rule 2.1 is simply Judge Posner’s theory in motion. Judges really are just trying to do what’s fair.

Uber X Driver: Who is Liable in a Devastating Car Crash?

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Image courtesy via: Toronto24hoursnews

On Sunday morning around 3 am, there was a car accident in the financial district in Toronto. Police were pursuing a suspect in a car chase. The car flew across Wellington Street allegedly over 100 km/hour and collided with an Uber X vehicle carrying several passengers. The damage was noticeable and serious.

Questions arise:

  1. Are the Uber X passengers covered by insurance?
  2. Are the police responsible at all?
  3. Does the City of Toronto have any blame for failing to regulate a service that Torontonians regularly use? Especially, given that opposition to the licensing of Uber is motivated more by financial concerns than anything else?
  4. Should the prosecution of the inevitable civil action be stayed until the results of the criminal trial?

Having not seen the insurance policy of the driver, I would guess that the passengers are not covered by the Uber driver’s insurance. The driver was using the car commercially, not personally.

As to whether the civil action should be stayed pending the results of the inevitable criminal suit, I would say yes and no. The civil trial should occur after the criminal trial to avoid contradictory findings regarding liability of the driver who was fleeing police. But every other stage of the civil suit should proceed promptly. Therefore, the civil trial could occur quickly after the criminal trial. Delay prejudices claims and brings the justice system into disrepute.

In Jadid v Toronto Transit Commission, 2016 ONSC 1176, Justice Dunphy states that:

86      Furthermore, prejudice is a criterion that captures more than just the mechanical ability of a party to put evidence into the trial hopper for assessment. The burden of dealing with litigation for so many years is a form of prejudice in and of itself. Defendants have a right to receive a decision in a reasonable time frame or be left in peace. The right to pursue a claim is not an absolute — it must be tempered with the right of the defendant unwillingly called to account by a plaintiff to have the claim diligently managed through the litigation process. This defendant has done nothing to hinder or delay the plaintiff and it is the plaintiff who bears the primary responsibility of managing this litigation through to trial: Wallace v. Crate’s Marine Sales Ltd. (supra) at para. 18. The plaintiff’s shortcomings in advancing this case have all been of her own devising.

It will be interesting to watch the civil suit unfold. It will bring into question the insurance policy of the driver, the insurance policy of Uber, and the liability of the City of Toronto, the police, and the other driver who was fleeing the police.

Civil Cases: What motivates them?

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“This is a civil case.  It is about money.  Every step of the way is bounded by cost-benefit analysis and proportionality.” Justice Myers in Whitty v Wells, 2016 ONSC 1278

Ideally every step taken is bounded by a cost-benefit analysis. However, sometimes other factors take precedent, including:

  1. Loss aversion. Loss aversion refers to the tendency to avoid losses over gains. Economist Daniel Kahneman found that losses are twice as powerful as gains, meaning that people feel a loss twice as much as a gain. For example, losing $5 is felt twice as much as winning $5. Therefore, if people view concessions as losing something, then negotiations will stall. “Losses loom larger than gains.”
  2. Scarcity. If people see something as scarce, they tend to value it more. Accordingly, if people think that an offer is time sensitive, they are more likely to act on it.
  3. Certainty. People seek out certainty. Daniel Kahneman states that “people attach values to gains and losses rather than to wealth” and people tend to pay a premium to be guaranteed a gain. Therefore, plaintiffs may be more willing to accept less money than what their claim is worth to avoid the uncertainty of court.
  4. Revenge / Anger. Sometimes revenge is the real goal rather than the need to be made whole through money. Shakespeare brilliantly captures the power of anger in Julius Caesar, Act III, Scene 2, when Antony moves the crowd to action by preying on their emotions. After the death of Caesare, Antony cries out:

AntonyHave patience, gentle friends, I must not read it. It is not meet you know how Caesar loved you. You are not wood, you are not stones, but men; And, being men, bearing the will of Caesar, It will inflame you, it will make you mad: ‘Tis good you know not that you are his heirs; For, if you should, O, what would come of it!…

First CitizenNever, never. Come, away, away!
We’ll burn his body in the holy place,
And with the brands fire the traitors’ houses. Take up the body.

Expert Witnesses and The Extinction of the Civil Trial

Trials play an important role in developing the law. Unfortunately, as Justice Edwards stated at the conference Tricks of the Trade, civil trials are at a real risk of becoming extinct if we do not collectively work together to shorten trials.

One of the main reasons that trials have increased in duration is the use of expert witnesses. Lawyers have outsourced aspects of their traditional role to expert witnesses because they would rather speak through these experts than use their own voice. I believe the trend of the hired gun started with lawyers’ lacking the confidence to establish their own case on their own talents.

It is time that we reversed the trend of the hired gun. It is time we stopped trying to out-hire one another with expert witnesses and investigators.

We are only hurting our cases. Client lose because prosecuting or defending their case takes longer and costs more. Lawyers lose because they lose the opportunity to truly understand their case because they are delegating the thinking and the investigating to someone else. Courts lose because trials take longer. And worst of all, they take longer because of “empty calories”. Expert witnesses’ testimonies are often tainted by the smell of money, even if it is unconscious bias on the part of the expert. This causes judges to place less weight on their testimony.

It is time that we entered a new culture. A culture that devalues experts and sees them as a resource to be used in the rarest of circumstances. It is time that we started shaming other lawyers for retaining the known hired guns, the experts that only do plaintiff work or only do defence work. We all know who these experts are. Even the judges know it. So who are we fooling?

Let’s reverse the culture and take back the civil trial. Let’s stop the continual deprivation of the common law by privatizing cases through settling at mediation. It’s time we started trying civil cases more often and more quickly. We don’t need three weeks to go through someone’s injuries in a car accident.

More civil trials, more often, and more quickly should be our aim.

 

 

“No Comment”

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In a time where everyone is famous for fifteen minutes and TMZ is king, what should the rules be on publicly commenting on a case before the court?

Under the sub judice rule, publicly commenting on a case becomes a problem when it is meant to interfere with a court proceeding.

Applying the rule was easier when publishing was concentrated in the hands of a few. And newspapers dominated the dissemination of current events.

However, nowadays newspapers are hemorrhaging subscribers, while new media transforms those very same readers into publishers. In this new egalitarian and diverse world, where trials are live-tweeted, we must re-examine the sub judice rule to make it relevant to today.

But re-configuring the rule is no easy task. The mind reels with questions. Would a trial be compromised if a litigant Tweets up a storm during their own trial? What if nobody reads the Tweets? What if a person uses social media to preempt a lawsuit?

Last October, Jian Ghomeshi stirred up a storm when he tried to get ahead of a story with his now infamous Facebook post. Clearly, he was trying to influence the court of public opinion and maybe even the minds of judges and jurors since quickly thereafter he launched his $50 million lawsuit against the CBC for wrongful dismissal. If his Facebook post was litigated, how would it be decided today?

The answer is unclear. Unfortunately the case law has not kept pace with the rise of social media and the fall of print media. In a time where anybody and everybody is a broadcaster, a publisher, and an influencer, the sub judice rule must take on new meaning.

For more information on the sub judice rule, read Dean Lorne Sossin’s article “A Comment on ‘No Comment’“.

The Massey Murder

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The Massey Murder electrified Toronto’s newspaper industry in the early 1900s. “Set against the backdrop of the Great War in Europe and the changing face of the nation”, the “brute slaughter” captivated Torontonians.

On February 8, 1915, a maid named Carrie Davies murdered her boss Bert Massey on his veranda by gunshot. Bert Massey was a member of the prominent Toronto Massey family, who made their wealth selling farming equipment. However, little known to the public, Bert Massey was largely cut out of the inheritance.

Immediately after her boss was murdered, the maid was taken into custody. She was questioned without a lawyer and sent the next day to attend a bail hearing. Bail was denied.

Following her bail hearing, there was a coroner’s inquest into the murder. The inquest consisted of a jury of 12 laymen. These men had to determine how, where, and when Mr. Massey died. Their findings would determine Carrie’s journey through the legal system.

During the inquest, evidence was led regarding her mental state. The Masseys proclaimed that the maid suffered from mental illness and killed Mr. Massey during a “fit”. Carrie accused Mr. Massey of attempting to rape her the day before she murdered him.

The jurors on the coroner’s inquest found that Bert Massey “came to his death on February 8, 1915, as a result of a pistol shot which, we the jury, believe was fired by Carrie Davies, and… Carrie Davies did feloniously and with malice aforethought kill and slay [Bert] Massey.”

Subsequently, Carrie was formally charged with murder and only a few days after that, on February 26, 1915, began the two-day murder trial. The events unfolded at a speed unheard of today.

In Carrie’s defence, her lawyer harnessed the resentment, rage, and indignation of the jurors:

“Was her life to be ruined by a married man who was her master? Was she to bring disgrace into a family that never knew a stain of such a kind? Her safety lay in self-defence. She was no match for him, and she took the pistol to intimate to him that he could not pursue his course with impunity… If she did not defend herself against this man she would have been a fallen woman, outcast, one more sacrifice to brutish lust… Let that sink into your mind. It was not manslaughter, it was brute slaughter…she was defending herself against a man in whom all the principles of decency were dead as far as she was concerned.”

Her lawyer perfectly captured the hearts of the jurors in his closing address.

Carrie was acquitted of murder.

(To learn more, read The Massey Murder: A Maid, Her Master, and The Trial that Shocked a Country by Charlotte Gray. The book also offers insights into the women’s movement during the early 1900s.)