Socrates and awards season
Plus spam filters and time limits, and actively managing a hearing and bias
Calgary on a wintry morning, November 22, 2024
As I mentioned in my last newsletter, I was in Calgary for a lightening quick visit. On the plane there and back, I read How to Think Like Socrates: Ancient Philosophy as a Way of Life in the Modern World, by Donald Robertson. I thought it was a good introduction to Socrates for those not familiar with Greek philosophy. It also illustrates the origins of the Socratic method, which some of us may have experienced in law school.
Socrates had many wise observations, but in the Fall Award season, this quote stuck out: “It’s better to deserve an award than to receive one”. Many have refused awards, but one of the best refusals was that of Doris Lessing, a British novelist, who refused the opportunity to be a Dame of the British Empire:
And surely there is something unlikeable about a person, when old, accepting honours from an institution she attacked when young?
And yet...how pleasant to be a dame! I would adore it. Dame of what?
…
Please forgive my churlishness. I am sorry, I really am.
The full letter is here (and, may I recommend this newsletter as a reminder of simpler, more literate times?).
Here is Doris Lessing’s reaction when told she had won the Nobel Prize for literature.
Cases of note
Spam filter delays time limit in collective agreement
In Canadian Blood Services – Lethbridge Plasma Centre v United Nurses of Alberta, Local 408, 2024 CanLII 100289 (Hughes), the employer’s notice of a salary scale change was caught by the union’s spam filter and the union did not receive it until after the limitation period set out in the collective agreement. The employer requested that the grievance be dismissed as untimely. It is important to note that the email did not go into the recipient’s “spam folder” but was inaccessible without IT support. The arbitrator denied the request:
21. This is not a matter in which the intended recipient knew of the message but ignored it, nor a case of other staff within the Union neglecting to convey a message they were aware of to the intended recipient. Rather, the message was held/blocked by the spam firewall, and the evidence is clear that no one within the Union was aware of it until the Article 26.02(b) timeline had expired. When IT staff were made aware of the message, they were able to find it, but there is no evidence that, prior to that time, the message was in any way accessible to its intended recipients. This contextual nuance is critical when considering the parties’ arguments on case law.
…
24. The Employer highlights similarities in the Article 7.04(a) language in Mistahia and the Article 26.02(a) wording in the instant matter, as in neither case is the form of notice specified. It argues that Arbitrator Lucas’ award stands for the principle that notice should be assessed based on whether, in the circumstances, a reasonably diligent employee would have been able to open and read the email, and the Employer extends that assessment of reasonable diligence to the Union’s handling of the June 18 Email.
25. In applying such a principle from Mistahia to the facts before us, we cannot concur that the intended recipients of the June 18 Email would have been able to access the message with reasonable diligence. The message was blocked by the Union’s spam filter, and Mr. Johnson’s uncontroverted testimony was that such emails are inaccessible to their intended recipients, and they receive no notification that the email exists. Moreover, given the volume of spam/messages and privacy concerns, the Union’s IT staff do not personally review spam logs. There was no evidence that anyone within the Union was aware of the June 18 Email until after Ms. Germaine notified Mr. Doner of its existence on July 21, 2020 and, therefore, we cannot conclude that, prior to July 21, 2020, anyone within the Union could have accessed the June 18 email with reasonable diligence.
26. … we conclude that the notice contemplated in the provision is clearly intended to allow the Union to determine whether it will accept the Employer’s proposed salary scale, or confirm its objection under Article 26.02(b) within 30 days of receipt of the notice. The purpose of the article is circumvented entirely in a situation in which no one within the Union is aware of the Employer’s Article 26.02(a) notice within the relevant period and where, consequently, no one can consider the proposed wage rates. Again, in this case, the June 18 Email was not accessible to the intended recipients, and they were not aware it existed until the 30-day period expired.
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41. Although the Employer was not responsible for the misdirection of the June 18 Email, there was also no action or omission by a member of the Union’s staff which precluded the message from being delivered to the intended LROs. The issue was caused by a mysterious technological glitch and, in such circumstances, when considered with regard to fairness and reasonableness, we prefer the Union’s proposed interpretation of Article 26.02, as the alternate approach would hold the Union responsible for an omission when no person within the organization was aware of the email which started the Article 26.02 timeline. Moreover, even insofar as the Union may bear more responsibility for the situation as the technological error happened in its system, again, considering the purposive analysis with respect to Article 26.02 above, our primary focus in the circumstances is on whether the notice was actually accessible and effective, and not on which party might ultimately be deemed responsible for the botched communication.
[emphasis added]
Bias allegation not founded when adjudicator actively manages the hearing
In McEwen v. Shim, 2024 ONSC 6450, the tenant alleged that the hearing before the Landlord and Tenant Board (LTB) was unfair because the board was biased and did not approach the issues with an open mind. The tenant relied upon a press release about the member’s background and several interventions by the member during the hearing. The court found no evidence to support a reasonable apprehension of bias.
The court found that the press release was hearsay and counsel for the tenant did not argue any exception to the hearsay rule. Accordingly, it could not be admitted as evidence. The court continued:
[21] It is incorrect to assert that he [the member] hurried the parties inaptly. This hearing was five times longer than the budgeted 30-minute length of a typical case. The tenant’s counsel ended her questioning herself. She was not prevented from continuing.
[22] I most firmly reject the submission that a member saying, “I understand your point; move on” can amount to a prejudgment of the issue. Ms. Ying submits that the member can’t know what evidence is coming next when he says, “I understand” unless he has already decided the issue.
[23] I wholeheartedly disagree.
[24] This witness meandered into repetition and down tangents that were not the subject of the questioning from her own counsel. There is nothing untoward about the member controlling the process before the board by cutting off repetitive and meandering testimony to try to help the witness be responsive.
[25] I agree with Ms. Friedman that in most, if not all the cases, the member heard the answer proffered by the witness before engaging. It was the member’s positive duty to manage the process to be fair to all. It can be a difficult task to do so while evidence is still being adduced. But nothing said by the member in this case provides a hint of prejudgment in my view.
Links of interest
U.K. Lady Chief Justice on the costs of the Rule of Law
The foundation of the rule of law is a properly funded and a properly functioning justice system that delivers for our citizens… The rule of law is not free; it requires investment.
Vavilov at 5: Justice Malcolm Rowe
One way of understanding Vavilov is as a “reset” to greatly narrow the use of the correctness standard of review while providing extensive guidance as to how to conduct a reasonableness analysis. The latter addressed concerns that had been expressed in the lead up to Vavilov that reasonableness review was excessively deferential, opaque and somewhat ad hoc.
The Vavilov framework has proven useful to focus judicial review on the proper exercise of a statutory power of decision and away from disputes as to the relevant standard of review.
Thus far, the Vavilov framework has “held together” and not been “chipped away at”, as was Dunsmuir. This is an on-going effort by the SCC and by other courts.
Practical strategies for use of AI in law schools
This technological shift presents an incredible opportunity. By embracing AI, legal education can prepare students not just to survive, but to thrive. The challenge is not just about teaching students how to use tools but equipping them with the judgment and insight necessary to apply these technologies ethically and effectively. It’s about cultivating future lawyers who can leverage AI to enhance access to justice while maintaining a human-centered approach to legal practice.
Translation turmoil at the Supreme Court - the saga continues
Emmett Macfarlane, a professor at the University of Waterloo who studies the Supreme Court closely, says that its decision to backtrack on its “stubborn” stance is a good one.
“The chief justice's rationale for not translating historic decisions was met by confusion and condemnation from many in the legal community, and rightly so,” he says.
“I'm still unclear on how they will identify the important or relevant decisions, and I think the government should provide enough funding to ensure all written judgments are properly translated.”