AUGUST 2022 | bartalkonline.org
SCIENCE TECHNOLOGY ENGINEERING MATHEMATICS
DIGITAL ASSETS | REPRODUCTIVE TECHNOLOGY | WHO OWNS AI’S IP
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CBABC.ORG/EVENTS
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AUGUST 2022 Volume 34 | Number 4 SCIENCE TECHNOLOGY ENGINEERING MATH AND THE LAW
Features 6
Digital Assets and Estate Planning
Hailee Chun and Sandy Abley 7
Columns
Who Owns AI’s IP
From the President
4
Taking on Difficult Questions Together Clare Jennings
Roch Ripley 9
IP Protection: Friend or Foe in Vaccine Development?
Executive Director
5
Jennifer Marles and Jayde Wood 11
Artificial Intelligence in Healthcare
Yue Fei and Pablo Tseng 12
Indigenous Matters
19
Moneyball Law Evaluating Justice Systems Through an Economic Lens
PracticeTalk
26
Employment Law in the Virtual Sphere
Cam Wardell 21
Equal Parts Science, Technology, and Intellectual Property Law
AI and Law Practice David J. Bilinsky
Geoff Cowper, QC 18
TK: A New Perspective on IP Mathew Brechtel and Professor Mira T. Sundara Rajan
Chilwin Cheng 15
Foreshadowing the Future Kerry L. Simmons, QC
Nothing Official
31
Praise Be, Y’all! Tony Wilson, QC
Nikola Rajic 22
Render unto lawyers that which is lawyers’, and unto support tools the things that are support tools’
Dr. Lachlan Deyong 23
Innovative Legal Services
Alexandra Mitretodis 25
Mediation and STEM
Adam Howden-Duke 29
The Future of Legal Services for Assisted Reproductive Technology
Jasmeet K. Wahid
From the Branch
Brandon D. Hastings, Committee Chair Editorial Committee Tonie Beharrell Isabel Jackson Eryn Jackson Lisa Picotte-Li
2
Professional Development
Deborah Carfrae, BarTalk Editor
8
Advocacy in Action
Staff Contributors
16
SectionTalk
From the Community CLEBC
14
CLEBC Leaders in Learning Award British Columbia Law Institute
20
BCLI’s Undue Influence Recognition/ Prevention Guide Update Project Courthouse Libraries BC
24
STEM Drivers for Tech Competence The Law Foundation of BC
28
Supporting Innovative Legal Research and Legal Scholars
32
BarMoves
Alyssa Brownsmith Michaela David
Travis Dudfield Sylvie Kotyk
Sean Vanderfluit
Carolyn Lefebvre Sanjit Purewal
Jo-Anne Stark
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FROM THE PRESIDENT CLARE JENNINGS
Taking on Difficult Questions Together Reflections from my presidency
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ne of the great pleasures of being CBABC president has been the opportunity to meet and hear from members. I’ve had the opportunity to attend more in-person events as pandemic restrictions have lifted, but I also regularly hear from members by email, phone, or even as we pass in the halls of the courthouse. After 11 months in this role, I feel like I’ve built a working relationship with you. While I will miss working with you in this role, I know that our incoming presidents over the next years — Aleem, Scott, and Lee — will do a phenomenal job. Many of you have expressed gratitude for the roundtables that CBABC hosted earlier this year. So many of us have anxiety about the future of the profession and our practices, and members have told me how much they appreciated the opportunity to share their thoughts and have CBABC be a voice for their concerns. It’s humbling, being president, to see firsthand the kind of impact CBABC can have and the kind of strength it gives our individual voices. As we move into the consultation on a single regulator for all legal professions, I encourage each of you to keep engaging in that conversation. I’ve also heard from members about CBABC’s work in recent years on reconciliation and equality, diversity, and inclusion. Most of those conversations have been incredibly positive, and some of you have told me that you specifically re-joined CBABC because we are engaged in
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this work. Others have shared that, while it’s appropriate we’re doing this work, our priority focus should be on practical and regulatory issues facing lawyers. The idea that these are distinct areas of focus, rather than overlapping and intertwined, reminds me a bit of when I first heard people giving territory acknowledgements. While I am, and have been, committed to reconciliation, many such acknowledgements seemed to me to be cursory, routine, or simply virtue-signaling. I had difficulty seeing how they were relevant to my daily work or part of meaningful advancement toward reconciliation. What I realised, through engaged listening, conversations with others, and looking critically at my own reactions, is the somewhat obvious truth that I can’t really know and shouldn’t assume what lies behind anyone else’s words. My obligation is to have that challenging conversation with myself — why am I dismissing their words as “virtue-signaling” rather than taking them as an opportunity, an invitation, for reflection? What steps have I taken to learn about the First Nation on whose territory I am a guest, both their history and their current lived experience? What role do I play, as a person and as a lawyer, in furthering reconciliation? When I am chairing meetings, what can I do or say to communicate territory acknowledgements that feel
more meaningful and invite others to engage in reflection? In other words, like so much else in our lives and our work, I need to challenge my own assumptions and thinking. I believe the same is true of the idea that issues of reconciliation, equality, diversity, and inclusion are not practical and regulatory issues facing lawyers on a daily basis. Even setting aside Law Society requirements, how are we serving our clients if we are not engaged with these issues? If we are not challenging our own biases, assumptions, and prejudices, how can we be sure that we’re fully hearing our clients and providing them with the best advice and service? How are we protecting the rule of law and access to justice if we are not actively working to ensure that everyone has access to the profession and justice? These are practice and regulatory issues for all of us. This is complex, hard work. These conversations, both within ourselves and with others, are ongoing and probably lifelong. CBABC is here to be a partner in that work with you. I am grateful to you for letting me be a part of that conversation.
Clare Jennings
president@cbabc.org
EXECUTIVE DIRECTOR KERRY L. SIMMONS, QC
Foreshadowing the Future
A single regulator for multiple professions
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o sooner had the Law Society of British Columbia benchers begun deliberating the Cayton Report, then the Attorney General announced intended legislation to regulate lawyers, notaries, paralegals, and other “future categories of professionals” under one statute and one regulator. This step continues the government’s goal of modernizing professional regulation in all fields in British Columbia. For example, realtors, brokers, and pension providers were brought under the BC Financial Services Authority on August 1, 2021. And, all self-governing health professions are regulated under the Health Professions Act, which the government is reviewing with the intention of further “modernizing” regulation. So, what does this mean for lawyers? Well, the senior staff of the Law Society, Society of Notaries Public, and the leadership of BC Paralegals Association have been meeting with Ministry of Attorney General staff to discuss the parameters of a single statute. This has formed the basis of an Intentions Paper to be released by the Ministry this summer. With that in hand, CBABC will begin a series of Regulation Roundtables with lawyers throughout BC in August and September. Some will be virtual and others will be in person. The goal is to help lawyers understand the potential changes and share their views so that CBABC can bring lawyers’ perspectives to discussions with the Law Society and government as the legislation is developed for introduction in Fall 2023.
What do we know so far? The legislation will clarify “protecting the public,” including how to protect the public’s interest in accessing legal services and advice. It will have clearly defined scopes of practice for lawyers, notaries, paralegals, and others. And it will include “best practices in professional regulatory governance” — presumably a nod to the recommendations of the Cayton Report. We also anticipate that the regulation will reflect the requirements in the Declaration on the Rights of Indigenous Peoples Act. The experiences of Indigenous peoples, whether as professionals or members of the public, will be considered throughout the discussions. The current work of the Law Society’s Indigenous Engagement in Regulation Task Force will significantly inform that aspect. The “what” of the regulator’s statutory responsibilities is critical to what comes next. Will the focus of the regulator be narrow, confined to admission to practice, scope and standards of practice, investigation, and discipline? Or will it be broader, to include programming, education, and advocacy for the public interest? Being a self-governing profession means that lawyers can make decisions on governance within the legislative framework, within the mandate of the regulator. It doesn’t mean those regulated can turn the regulator
into an association, representing their own interests as a profession. Once the function of the regulator is understood, we can move to the question of governance and other questions. And that is where we return to the Cayton Report. There is a tendency to jump to Cayton’s governance recommendations — how many governors, where should they be from, what skills and experience, how many members of the public, how many lawyers, notaries, or paralegals? None of those questions can be appropriately answered until we understand the refined regulatory responsibilities. CBABC’s role is always to bring the experiences of members and their clients into the discussion to help those responsible for systems understand what is needed. Your role is to share that information with our Provincial Council, Board of Directors, and Executive Director. Give us a call, email feedback@ cbabc.org. What our members say matters and CBABC provides the power of a collective to advance members’ interests, particularly in this new era.
Kerry L. Simmons, QC
ksimmons@cbabc.org AUGUST 2022 / BARTALK 5
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HAILEE CHUN AND SANDY ABLEY
Digital Assets and Estate Planning What happens to all the songs that were purchased on Apple Music?
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n a world where it is quite possible, and even likely, for a person to spend more time online than offline, many still overlook the importance of having a well-considered estate plan for their digital assets. It is easy to think of a person who may not own a home but have multiple email, social network, or social media accounts where “content” — the text, photos, and videos that a user uploads on their social media account — is shared daily. That same individual may also have a highly coveted online gaming account with various rare game “items” that may sell for a few hundred to tens of thousands of dollars (The Guinness World Record for the greatest amount paid for a virtual property in a game is currently $6M USD). The need to dispose of these valuable, whether sentimental or financial, digital assets on death should not be ignored. Estate planners may want to start by asking their clients to think about their testamentary intentions regarding their digital assets.
Do they want to transfer their music subscription to a beneficiary?
What digital assets do they own?
Do they earn income from their digital or social platforms?
Would they like their executor to delete all online accounts and digital media associated with them?
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Even if those wishes are not made express in a will, clients should consider leaving a detailed memoranda or instructions for their executor so that their wishes can be carried out. It may not be desirable for some to have their photos and videos posted on their social network account permanently accessible by the public. Next, clients should be encouraged to determine the feasibility of their wishes by reviewing the user agreements for each of their digital assets. Depending on the platform, the ability of an executor to not only access but request to delete a deceased person’s account without directly logging in using the username and password may be limited. In Saskatchewan, The Fiduciaries Access to Digital Information Act came into force on June 29, 2020, and provides that a fiduciary, including an executor or administrator, has the right to access a digital asset of a deceased person, subject to the intentions in a will. To date, no such act is available in BC; and also note that the most popular online platforms are generally companies incorporated outside Canada, which may pose enforcement challenges even if a similar act was available in BC.
Even after gaining access to a digital account, it may not be possible for an executor to simply transfer an account or distribute its contents to another. For example, according to Apple.com, Apple services such as Apple Music cannot be transferred over to someone else, although purchases from the App Store, iTunes Store, Apple Books, or Apple TV may be “shared” with other family members through its platform. As a point of practice, it will be helpful that the appointed executor be familiar with the various digital assets and able to navigate the different online platforms to carry out the will-maker’s wishes.
Another important consideration is whether any of the digital assets would attract probate fees. The current version of Statement of Assets, Liabilities and Distribution (Form P10) requires all applicants to disclose the total intangible personal property, which will necessarily include digital assets of financial value, such as cryptocurrencies, valuable non-fungible tokens, and potentially those rare game items that could sell for a significant amount of money to the right market. Hailee is an estate litigation and planning lawyer, and Sandy is an estate planning lawyer at Onyx Law Group.
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ROCH RIPLEY
Who Owns AI’s IP
AI-created IP ownership considerations
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very once in a while a topic related to intellectual property (“IP”) captures the attention of the mainstream media. Around a decade ago, the popular press got wind of the socalled “monkey selfie” dispute, which centred on whether copyright subsisted in a selfie taken by a macaque and, if so, who owned it (spoiler alert: it’s not the macaque). Now, news articles again circulate on who owns IP purportedly created by someone or something other than a natural person: artificially intelligent machines. Perhaps primed by Hollywood, the term “artificial intelligence” (“AI”) may conjure images of generally intelligent machines that are able to pass for humans in all manner of circumstances. Reality is less impressive. Society is far from developing an AI that is the stuff of the Terminator or HAL 9000. Rather, task-specific AIs, such as a camera app on a phone that identifies faces or computers that (try) to understand or mimic natural language queries, represent current technology. Facial recognition and natural language processing are implemented using a type of AI known as a “neural network” that uses an architecture roughly mimicking a human brain to perform machine learning: the ability for a computer to become more accurate in the task(s) it performs based on data without being explicitly programmed to do so. Most people who loosely refer
to AI, particularly in comparison to human beings, are referring to machine learning performed with neural networks. Device for the Autonomous Bootstrapping of Unified Sentience (“DABUS”) is a task-specific AI composed of neural networks tasked with creating new inventions. According to Dr. Stephen Thaler, DABUS’s creator and owner, DABUS invented a “fractal container” and a “neural flame.” Dr. Thaler applied to patent these inventions in several countries listing DABUS as an inventor. While proceedings before the courts or administrative bodies remains pending as of this writing, to date the Federal Court of Australia, the UK’s Court of Appeal, a US
Society is far from developing an AI that is the stuff of the Terminator or HAL 9000. District Court, and the European Patent Office have all held that an inventor needs to be a person. One argument in support of listing DABUS as an inventor is a moral one: someone who creates an invention is simply entitled to be recognized as an inventor. DABUS, however, is something, not someone.
As outlined above, like all other AIs, DABUS is a task-specific AI that has a narrow intelligence distinct from that possessed by humans. The day may come when an AI actually does achieve general intelligence and sentience, in which case society will be faced with issues more pressing than whether it should be listed as an inventor on patent applications. Another argument is an economic one: that if a patent cannot be granted to an AI inventor, then society risks forgoing patent protection for, and consequently the economic incentive to develop, a huge swath of beneficial inventions that may be created by AIs in the future. This concern can be addressed by simply recognizing as an inventor the person who used the AI to create the invention as opposed to the AI itself. It is the person, after all, who invests the time and money to procure, train, and use the AI to create, who should be recognized. Some countries already apply this type of framework for copyright. UK legislation specifies that in computer-generated works, the author of a work is the individual who made the arrangements that permitted the computer to create the work. A statutory reform for patents analogous to this one for copyright would clarify the legal position of inventors like Dr. Thaler in a manner consistent with the fact that AIs today are just a tool used by creators to whom society owes economic and moral obligations, as opposed to the creators themselves. Roch Ripley is a partner with Gowling WLG (Canada) LLP and heads its Vancouver office’s intellectual property department. LinkedIn AUGUST 2022 / BARTALK 7
advocacyinaction Advocating on behalf of the profession is a slow and winding road. Sometimes it takes years to see the results of our collective efforts. This spring, we were lucky to experience several exciting advocacy wins.
CULLEN COMMISSION INQUIRY INTO MONEY LAUNDERING After three years of reports and testimony from local witnesses and international experts, the Cullen Commission released its final report and findings in June. The final report did not find extensive evidence of lawyers being directly or indirectly involved in money-laundering activities in BC. However, the Commissioner did note the profession is at risk of being inadvertently involved. His recommendations for the Law Society of BC included expanding the client identification requirements, public awareness of the limitations of lawyers’ trust accounts, and further training for staff and lawyers in high-risk practice areas. CBABC was a participant in the public inquiry and was pleased to see the Commission agreed with our recommendations put forward, including a need for further funding to train police and enforcement agencies to aggressively pursue money launderers.
REFORMING THE “POLICE ACT” Following an extensive public consultation, the government’s Special Committee to reform the Police Act released its final report in April. Several CBABC recommendations were considered by the Special Committee, including the need to collect and use disaggregated data and improvements to the complaints and disciplinary process for police.
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EMAIL: ADVOCACY@CBABC.ORG
MENTAL HEALTH ACT UPDATES CBABC welcomed the government’s proposed changes in a bill to amend the Mental Health Act. The changes include the establishment of a team of Rights Advisors, whose role will be to provide independent advice and assistance to those involuntarily detained under the Act. In Agenda for Justice 2021, CBABC recommended that the government update the Act to ensure detainees obtain legal representation.
ANTI-RACISM DATA ACT The BC government has announced new anti-racism legislation that will ensure disaggregated data is thoughtfully collected and analyzed so that government programs, policies, and legislation protect BC’s most vulnerable. CBABC has been actively advocating for the collection and use of data since we launched Agenda for Justice 2021.
ELECTRONICS RECYCLING PROJECT In July 2021, the Access to Justice Committee released its report, Who’s Getting Left Behind, which explored the access to justice issues created when people don’t have necessary technology to reach essential court services and legal advice. The A2J Tech Drive was the profession’s opportunity to be a tangible part of the solution in closing this digital divide. More than 20 law firms and individuals in BC donated almost 200 laptops, computers, smartphones, and other materials! This equipment is being refurbished and will delivered to Indigenous and rural communities later this summer. A big thank you to all the lawyers across BC who participated in this successful endeavor! uuu Want to get involved? Email us at advocacy@cbabc.org.
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JENNIFER MARLES AND JAYDE WOOD
IP Protection
Friend or foe in vaccine development?
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he COVID-19 pandemic has put a spotlight on the value of intellectual property (“IP”) protection and the tension between public health and IP rights. There has been discussion about overriding IP rights through a waiver of the protection afforded by the Agreement on Trade-Related Aspects of Intellectual Property Rights (“TRIPs”). The proponents for the waiver say that IP rights pose a barrier to rapid access to affordable medical products, including vaccines for people in dire need. On the other hand, the opponents say that there is no indication that IP rights had hindered the availability of vaccines or therapeutics during the pandemic. So — is IP protection friend or foe in vaccine development? It is complicated, much more complicated than the relationship between Jane, Jake, and Adam in It’s Complicated (2009). Vaccines are highly complex biologic agents and regulatory law plays a major role in ensuring the delivery of safe and effective vaccines. Biologic agents are isolated from a natural source, rather than being artificially synthesized. As a result, biologics are complex mixtures that cannot be easily identified or characterized. Regulatory approval of pharmaceutical agents after extremely rigorous testing ensures that only agents
that are safe and effective are sold to the public. Beyond regulatory law, IP rights may also play a role in the delivery of safe and effective vaccines. Robert DeBerardine, the chief patent attorney of Johnson & Johnson said that the company’s IP rights allow it to pick the best partners and enter into agreements with them to make and distribute safe and effective vaccines. There are intersections between IP rights and public health concerns in making vaccines affordable and widely available. In the case of mRNA vaccines, there are numerous patents involved. Vaccine developers may need to pay royalties to use patented technologies owned by third parties (driving up the cost of the vaccine), and will want to ensure that their own technological developments are protected by appropriate patents (ensuring their unique position with respect to competitors in the marketplace). During the early stages of the pandemic, no company wanted to be seen as holding up the pandemic response by asserting its patent rights, and the public health interest in rapidly scaling and delivering vaccines prevailed. However, now that the urgency of the pandemic is fading, we are starting to see in the US
the filing of offensive and defensive litigation by holders of patent rights relevant to the mRNA vaccines. Such disputes have the potential to curtail the availability of vaccines if manufacturers are uncertain of the outcome of such litigation. It is important to know that governments do have the legal authority to override patent rights through the grant of compulsory licenses if the needs of the public for a patented technology are not being met, and Canada even introduced legislation specific to the COVID-19 pandemic,
although the relevant provisions expired without being used. Friend or Foe — maybe both? IP protection can be a friend — as it provides a foundation by which diverse stakeholders can collaborate and deliver successful technologies to the global market safely and quickly, knowing the contributions derived from their investments will remain theirs. However, IP protection can also be a foe as companies could potentially hold up the pandemic response by asserting their respective IP rights, as we are starting to see now that the worst of the pandemic seems over. Jennifer Marles is an IP lawyer at Oyen Wiggs and Jayde Wood is an IP lawyer at Gowling WLG. AUGUST 2022 / BARTALK 9
Welcome
Nathan Phelan Associate
Nathan is a member of the Commercial Real Estate & Development Practice Group. His practice focuses on all aspects of commercial real estate transactions, including acquisitions, leasing, financing, dispositions, and property development. Nathan was called to the Manitoba Bar in 2021, and the B.C. Bar in 2022.
604.891.3688 | www.kkbl.com Koffman Kalef LLP is a British Columbia Limited Liability Partnership of Law Corporations
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YUE FEI AND PABLO TSENG
Artificial Intelligence in Healthcare
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he applications of artificial intelligence (“AI”) technology are numerous, and many industries, like the healthcare industry, have benefited from AI technological advances. From deep learning algorithms that can predict and diagnose diseases, to natural language processing that can process voluminous amounts of unstructured health records and drug safety data and render such information into a comprehensible form, the potentials for AI in healthcare seem endless. However, every coin has two sides and AI is no exception. DATA PRIVACY AND SECURITY
AI technology is increasingly utilized in the healthcare sector to process massive datasets. Such datasets will inevitably include personal health information, which is generally regarded as sensitive personal information requiring a higher degree of protection. Fortunately, general public awareness of privacy and data protection issues is increasing. As the use of personal information becomes more regulated worldwide, stakeholders must give careful thought to their data handling and security practices, lest they incur the financial and reputational repercussions of a data breach. LIABILITY When a doctor makes a mistake, the doctor may be subject to medical malpractice lawsuits; however, when an equipment powered by AI
makes a mistake, who should be held accountable? Most applications of AI in the healthcare industry today require input from physicians who serve as the main drivers of decision making. As AI continues to evolve and becomes more independent in performing tasks, or as physicians become more reliant on the recommendations made by AI, there will be increased legal scrutiny on physicians and healthcare institutions that incorporate such AI technologies in their practices. Where there is use of AI, there is potential for liability. In addition, as AI technologies continue to advance, it is becoming increasingly difficult for humans to dissect the decision-making processes of these technologies. This may be particularly true for AI technologies based on deep learning, where the black box nature of such AI processes makes it very difficult to determine the rationale behind a decision. In such instances, it may be difficult to assign responsibility to an individual when something goes wrong. THE GRAY ZONE There is currently limited legal precedent regarding liability involving AI. Should a physician and/or healthcare institution be liable for errors or malfunctions of AI technology, or should the developer and/ or vendor of the AI technology be
responsible for the errors made by the technology? Privacy regulators in Canada recognize the benefits of AI as well as the liability and privacy challenges that AI adoption raises. Several projects funded by Canadian privacy regulators such as “Privacy and Artificial Intelligence: Protecting Health Information in a New Era,” “Artificial Intelligence, Machine Learning and Privacy: From Threats to Solutions,” and “Deep Learning in Medical Imaging: Risks to Patient Privacy and Possible Solutions,” have been completed, and more will likely be underway to help regulators and legislators understand how best to
address the liability and privacy risks arising from the application of AI in healthcare and other industries. As AI continues to develop and as its applications in various industries expand, novel legal questions will arise. To maximize the benefits of AI technologies, it will be important for industry leaders and regulators to continually monitor the development and the impact of AI technologies in their industries, identify the pros and cons that arise from AI technology adoption, and provide guidance to other industry professionals and the public regarding appropriate uses and applications of AI. Yue and Pablo are intellectual property and technology lawyers at McMillan LLP. AUGUST 2022 / BARTALK 11
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CHILWIN CHENG
Moneyball Law
Using statistical modelling to improve litigation forecasting
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ost litigators who have benefitted from participating as counsel in a few trials can assess, with reasonable confidence, whether their client has a “strong” or a “weak” case. However, if one asked them whether they could frame their forecasts as a range of likelihoods of an acquittal, a fine range, or the length of incarceration, probation, or a suspension, most litigators demur from making such a forecast. Yet, increasingly, sophisticated parties demand these forecasts. Insurers ask for realistic estimates rather than “worst case” estimates of reserves they need to set aside. Litigation finance must assess the likelihood of recovering a sum of damages that reflects the risks of loss. Our trade publications are rife with articles about clients who demand greater transparency into how litigators develop their forecasts. THE ROLE OF DECISION ANALYSIS Decision analysis is a discipline with universal use in other fields such as operations research, finance, project management, among many others. Whenever a person needs to forecast an event that depends on a chain of events, each link of the chain having a range of likelihood of occurrence, those professionals will employ decision analysis tools. A wonder that lawyers, whose stock and trade is in the analysis of uncertain events,
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have not embraced these techniques. It’s high time we did. THE DECISION TREE A decision tree is a model of event points having a range of potential outcomes. Lawyers have defined “decision points” for generations. For example, with a prosecution of a business contrary to section 6(1) of the Environmental Management Act, the Crown must prove beyond a reasonable doubt that: (1) the accused “introduce, cause, or allow” waste to be introduced into the environment; (2) the accused introduced “waste”; (3) the waste introduced into the “environment”; (4) the accused engaged in a “prescribed industry, trade of business”; and (5) the accused failed to execute due diligence to prevent the contravention. Knowing the evidence, lawyers can identify the likelihood that each element can be proven. With that capability, each question becomes a point in a decision tree. Here is an example of such a tree:
In this example, each node on the tree represents an element of the Crown’s case.
But you may say, “It’s impossible to be so precise in putting a number at each of those nodes! It’s more like a range of probabilities!” Decision analysis allows for this: the Monte Carlo simulation — a technique developed by theoretical physicists trying to develop the atomic bomb. The word “Monte Carlo” refers to the codename that US government scientists gave to the technique rather than to the suggestion that the technique results in random results or is a form of gambling. The lawyer assigns to each node a range of reasonable outcomes for that node. Usually, a node represents a discrete and often binary condition: “Yes” or “No”. As in, did the Plaintiff prove that the Defendant owed the Plaintiff a duty of care: “Yes” or “No” — unlike lawyers, a judge does not have the luxury of “Maybe”. In our example, the lawyer has defined the likelihood that a judge will decide that the Defendant owes the Plaintiff a duty of care as being 70% plus or minus 20%. In this model, we establish probability ranges for each node of the tree, recognizing that we are uncertain how a court will rule on each point along the analysis. For example, we have modelled whether the Crown can prove the accused’s actions caused the introduction of waste into the environment with this probability range:
Just what does this figure mean? One way of putting it is that if we ran this trial in front of 100 judges, 70 judges would likely assess the issue as having a 75% chance of proving that element. We can predict 20 judges will make this finding 90% of the time and 10 judges will make the finding 95% of the time. This is a form of legal realism and not formalism. We are recognizing that judges are human and are prone to seeing cases differently from each other. THE MONTE CARLO SIMULATION Now, we run the Monte Carlo simulation. We recalculate the results while we change all the percentages for each node simultaneously. Running this exercise meaningfully requires thousands of iterations. This exercise cannot feasibly be done by hand. But, thanks to computers, we can run this simulation in a few seconds. But to reach a point where we had “stability” — that is where the result repeated themselves — the computer had to run 3400 iterations of this example model. Here are the results:
There is a pattern to the results, one readily discernible to clients, insurance professionals, and financial managers. The chart shows an average result of 54% chance of conviction. There is a chart for each node that allows us to verify that the computer used random inputs into our model:
The input chart reflects the functions we created for each node. If one can imagine, we believed, based on our assessment of the evidence, that the Crown had between a 75% to 95% chance of proving that the accused introduced waste into the environment, where that distribution was skewed upwards. We assumed a wider range of risk whether the Crown could prove the accused operated in a prescribed industry. Despite the relatively high confidence the Crown could establish these elements, the final result shows the cumulative effects of uncertainty and risk in whether the Crown can prove its case. The analysis demonstrates the Crown is more likely to obtain a conviction, but the Crown has risk, and a plea arrangement with some favourable terms for the accused ought to be pursued. This following chart presents the effect one node has on the result. The longer bars illustrate variables with a greater effect on the outcome. We use this graph to help recommend to the client where to focus a limited litigation budget (hint: after spending enough resources to satisfy that we can disprove, minimally, all elements, we focus remaining budget on disproving those elements with the greater impact on the result). Here, if the client had a limited budget (and which client does not), the chart suggests we ought to focus our efforts on fighting whether our client operates in a prescribed industry since that is the variable that creates the most variability in the result and creates the most
opportunity to cause a likelihood where the Crown fails to prove its case beyond a reasonable doubt. BETTER DECISION-MAKING This note scratches the surface of how this technique is used and its power. We have used these techniques in helping clients understand whether to pursue litigation, helping accused persons know where to best deploy their defence budget to attack the Crown’s case, to formulate plea and defence positions, and to justify legal budgets with professional funders. After having used these techniques for several years, we can attest to their power not only in helping us make more rigorous and disciplined decisions, but its power to help clients see our work. These techniques are commonplace in many areas of advanced business. Executives responsible for selecting major capital projects, sending people to space, deploying major population—wide health programs routinely procure these studies to inform their decisions. In all cases, these executives are seeking to forecast risk and opportunity. Lawyers are forecasters of risk and opportunity. We can mitigate risk and maximize the opportunity for our clients with legal tools. We should adopt these tested techniques pioneered and used in many other industries. Chilwin Cheng is founder and managing partner of Ascendion Law, a commercial, criminal, and regulatory litigation boutique. AUGUST 2022 / BARTALK 13
communitynews 2022 WESTERN CANADA GENERAL COUNSEL AWARDS
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WCGCA.CA For information about sponsorships or to reserve a table, please visit wcgca.ca or contact Dan Malamet at dmalamet@zsa.ca.
CLEBC Leaders in Learning Award
17 years and also one of the founding editorial board members of CLEBC’s Administrative Law Practice Manual, which was first published in 2012.
Every two years, CLEBC recognizes extraordinary individuals for their contribution to the enhancement of learning in our legal community by presenting them with the Leaders in Learning Award.
Frank has also been included in CLEBC’s list of most prolific contributors with more than 40 contributions.
We’re pleased to announce that this years’ Leaders in Learning Award recipient is Frank A.V. Falzon, QC. Frank is a well respected and distinguished practitioner in the area of administrative law, not just in BC, but across Canada. Even though Frank has always been an extremely busy sole practitioner, he always had time to devote to the CLEBC programs and publications offerings. Frank has been the face behind CLEBC’s Administrative Law Conference for the last
14 BARTALK / AUGUST 2022
Apart from his knowledge, intellect and dedication to our profession, Frank has always been a pleasure to work with. He is reliable, diligent, enthusiastic, and has always been willing to assist CLEBC. We are honoured to present him with our Leaders in Learning Award.
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GEOFF COWPER, QC
Evaluating Justice Systems Through an Economic Lens When is justice an economic good?
E
conomists are huge fans of effective legal systems that hold power accountable to principle, support personal safety and facilitate the recognition and enforcement of civil rights and property. Economists like Hernando de Soto and his Institute for Liberty and Democracy advocate the recognition of private property rights as central to economic development. The zeal for measuring and promoting the rule of law internationally has, over the past 20 years, been taken up by the World Justice Project, the Bingham Centre for the Rule of Law, and others. The now vast field of law and economics has brought the efficiency and effectiveness of substantive areas of law under scrutiny using the tools of microeconomic theory. This has enriched our consideration of the design and assessment of areas of law such as contract and property law, consumer protection law, and many others.
the goal of reducing homelessness or poverty it is fair to ask whether it has done so.
Assessing our legal system through an economic lens is infused by the same desire to see the law deliver just outcomes but is focused more on the operational performance of the legal system and whether it achieves its stated goals and performance measures. The exercise does not have to be from a conservative perspective: it also offers a means of testing whether progressive measures are achieving their goals. If a measure is passed with
So how might an economist view the operational performance of our Canadian justice systems? The results are probably mixed. On the positive side of the ledger the use of virtual hearings in the course of the COVID pandemic would warm the heart of even the most skeptical economist. Here is efficiency, innovation, and effectiveness being achieved in the course of a worldwide health crisis. Similarly, the growth of specialised tribunals that
Traditionally jurisprudence has largely engaged in practical philosophy: a legal principle is tested by whether it achieves a greater degree of justice and not whether it facilitates greater economic flourishing. Modern tests of legal systems clearly reflect an economists’ appetite for data and practical and comparable measurements of justice. Thus, the World Justice Project ranks legal systems by reference to factors that now include eight factors and 44 sub-factors; however, these are generally based on the values of the restraints of governmental and arbitrary power and the preservation of private rights. None are explicitly based on securing economic rights and interests.
adjudicate both domestic and international disputes offer access to principled outcomes that promise enhanced quality, timeliness, and an over-all increase in the rule of law. How would an economic lens view differently from some of the other challenges we face? The increase of self-represented litigants, despite many years of study under an economic lens, would likely focus on the barriers to entry of affordable legal representation. The tendency toward innumeracy within the legal profession raises a clash of cultures in which economists would likely give no ground to lawyers. The ways in which our measures of compensation preference non-economic concerns, the very partial right to recover costs in civil actions, the proper understanding of the time value of money, and other issues remain points of friction. In general, the objective measures of outcomes championed by economists are by their nature less concerned with the questions of process that occupy much of civil and criminal procedure. Most measures of the rule of law properly include measures of fairness in the institutions and rules governing legal rights. Many now also include objective measures of performance. The calls for the promotion of a rule of law culture in many ways acknowledge that we are already living in a justice system that faces the type of accountability an economist would demand. Geoff Cowper, QC is a general litigator with Fasken. Geoff has served as counsel in leading private and public cases in Canada and internationally. AUGUST 2022 / BARTALK 15
sectiontalk In Case You Missed It — NOTABLE MEETINGS As we wrap up a hugely successful 2022-23 membership year, we’re proud to report that Sections collectively hosted more than 13,000 participants at 265 meetings this year. Session recordings are available to all CBABC members on our Sections web pages. Here are a few highlights from our latest meetings.
A NEW FORM OF ACCESS TO JUSTICE? The Constitutional/Civil Liberties Section brought together Sarah Bevan and Robin Gage, counsel for some of the parties in Trial Lawyers Association of British Columbia v. British Columbia (Attorney General) 2022 BCCA 163, and access to justice expert Robert Lapper, QC to discuss the issues arising from the case. The case concerns the Civil Resolution Tribunal’s jurisdiction to decide liability and damages for minor injuries resulting from motor vehicle accidents. TLABC and several plaintiffs in motor vehicle claims successfully challenged the CRT’s jurisdiction.
LISTENING TO THE VOICES OF SELF-REPRESENTED LITIGANTS Leona Harvie, Grimm Culhane, and Meg Holden, three self-represented litigants (“SRLs”) in
family cases, shared with the Unbundled Legal Services Section their stories about representing themselves, how lawyers can best interact with SRLs and how unbundled legal services can be used most effectively.
BANNING CONVERSION PRACTICES IN BC Hosted by SOGIC and Health Law Sections, Florence Ashley, Michael Kwag, and Jordan Sullivan discussed conversion practices and their harms. The panelists reviewed the recent amendments to the federal Criminal Code banning conversion practices, other legislative bans in Canada and internationally, and provisions for survivor supports. The panelists concluded by considering what further policy steps could be taken in BC and elsewhere to supplement to further reduce odious conversion practices.
ELDER LAW FOR INDIGENOUS INDIVIDUALS AND COMMUNITIES Michelle Isaak addressed some elder law issues that Indigenous peoples and communities experience, specifically in the areas of estate planning, incapacity planning, estate administration, and committeeship. As legislative schemes impact many aspects of life for Indigenous peoples, lawyers should be mindful of how these can influence how they approach Indigenous clients on estate and incapacity planning.
WHAT’S NEXT IN SECTIONS Members are telling us clearly: You want the convenience of virtual sessions with the option for in-person meetings. We are pleased to confirm that most Section meetings will continue to be delivered virtually to keep your practice and interest communities connected. Sections will also offer Hubs, where members can gather in-person to engage in a virtual meeting together. Any member wishing to host a Hub at their office can indicate that when registering for a meeting. CBABC will promote your Hub location on the meeting registration page! Stay in the loop: CBABC is committed to giving members at least three weeks’ notice of upcoming meetings so you can plan your attendance. Bookmark cbabc.org/events and update your Sections enrollment, so you don’t miss a thing!
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EMAIL: SECTIONS@CBABC.ORG
SOGIC UPDATE — by Dustin Klaudt (he/him)
SOGIC Welcomes In-Person Pride Season to Conclude Our Section Year SOGIC’s Executive thanks our members and allies for participating in our recent programming and is thrilled to have hosted several in-person social and Pride activities in recent months. In May, we co-hosted, with Workplace Investigations Section, a presentation by Adrienne Smith on gender identity and pronouns in the workplace. We also held our first (of hopefully many) in-person Victoria Social for our growing membership there. In June, we co-hosted, with Health Law Section, a presentation on banning conversion practices (also called “conversion therapy”) in BC, an issue we will continue to advocate should be placed on the BC government’s reform radar in the next year. We also hosted two social events. First, SOGIC joined the Victoria Bar Association at the Victoria Pride Parade. June concluded with our first in-person Vancouver Social post-COVID. Special thanks are due to Morgan Camley and others at Dentons Vancouver for hosting SOGIC offices and providing lovely refreshments. In July, we participated in Vancouver Pride. SOGIC had for many years marched in-person in the Vancouver Pride Parade pre-COVID and re-established this well-regarded event at the July 31, 2022 Parade. SOGIC is also planning to attend the New Westminster Pride Festival on August 13, 2022, and those interested in joining can register here. You can also celebrate Pride anytime during the year (not just the summer) with several CBABC resources such as wearable print tabs, digital backgrounds, and social media shareables. SOGIC also thanks our many members who participated in our ThoughtExchange to inform our advocacy and other activities for the next Section year. In conclusion, this is my final Section year as Co-Chair, and I wanted to thank our members and allies for your outstanding engagement these past three years. It’s your efforts to make our profession more inclusive that has driven much needed equality, diversity, and inclusion reforms during my tenure!
CONNECTING WOMEN LAWYERS If you haven’t already, be sure to check out the CBABC WLF Summer Newsletter, featuring articles about pay equity and climate-conscious lawyering, recent event highlights, and an interview with The Honourable Kerry-Lynne D. Findlay.
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Read it here.
AUGUST 2022 / BARTALK 17
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CAM WARDELL
Employment Law in the Virtual Sphere
Technology and the expanding e-workplace
T
he pandemic propelled the movement of employees to home offices at an unprecedented level. Current trends suggest that this shift, once thought to be a temporary solution to pandemic problems, may be here to stay for many workplaces, at least in a hybrid form. However, nascent legal problems are beginning to catch up with this pandemic-borne solution, raising complicated questions about the expanding scope of the “workplace” and the virtual realm, and an employer’s management of it. As legal precedent arises from onceunprecedented times, a cautious approach seems wise for employers working with a virtual workplace. The expansion of the workplace through technology is not completely new. Cases as far back as 2016 identified that the workplace extends to the world of modernday social media, including an employer’s own Twitter account: Amalgamated Transit Union, Local 113 v. Toronto Transit Commission (2016), 270 LAC (4th) 341. At that time, an arbitrator in Ontario held that an employer had a positive obligation to take steps in response to online harassment directed at its employees, providing clear direction to employers that they could not ignore employee mistreatment, even when perpetrated by strangers on the internet. Taking its point broadly, the Ontario case could be also said to stand for 18 BARTALK / AUGUST 2022
the proposition that an employer seeking to further its objects through the use of technology should not ignore the consequences on its employees. This, as it turns out, is a terrific lesson for employers today. Giving up office space can be an attractive prospect for employers to reduce overhead costs (and employees avoiding the commute). However, failure to stay connected with a remote workforce risks disengagement, lost productivity and time-theft, among other things. Employers might look to technological advancements to address these risks, but that use must still take into account the interests of the people it affects. Governments are clearly moving toward legislating protections for home offices, with Ontario leading the way recently by enacting laws directly addressing employer-monitoring and employee disconnection through the “Working for Workers Act” in each of 2021 and 2022.1 With a virtual workplace, employers bear responsibility for employee health and safety in areas for which they hold little control. For example, a recent case in Québec found an employee injured in the course of lunch in her own home was sufficiently connected to the workplace for workers’ compensation to apply: Air Canada v. Gentile-Patti, 2021
LNQCTAT 6978. While this issue is only beginning to be litigated, employers should look to implement health and safety policies specifically applicable to home offices. The virtual workplace has also led to some alarming failures in the realm of dismissals. For example, in late 2021, an American CEO made the news following his dismissal of approximately 900 employees during a group Zoom meeting, seconds before they were locked out of the employer’s computer systems altogether.2 It has long been acknowledged that employees are most vulnerable at the time of the termination of the employment relationship, with the act itself labelled (in some circumstances) the “capital punishment of employment law.” While there may be nothing intrinsically wrong with a respectful virtual dismissal meeting, one would hope that few advisors endorse the elimination of an entire workforce through the equivalent of the delete key. The pandemic age has proven that businesses can adapt rapidly to changing situations, particularly where the health and well-being of employees is at stake. The future may put that adaptation to the test across workplaces for which physical boundaries are a distant memory.
1 Working for Workers Act, 2021, S.O. 2021, c. 35 (Bill 27) & Working for Workers Act, 2022, S.O. 2022, c. 7 (Bill 88) 2 “‘It was callous,’ says man laid off with 900 employees on Zoom call,” CBC News (December 7, 2021), online.
Cam is a partner at Mathews, Dinsdale & Clark and an editor of CanLII’s awardwinning Manual to BC Civil Litigation.
Indigenousmatters
MATHEW BRECHTEL AND PROFESSOR MIRA T. SUNDARA RAJAN
TK: A New Perspective on IP
A
s many of the articles in this issue illustrate, advancements in STEM disciplines make essential contributions to quality of life and productivity. Legally, these advancements are often protected by intellectual property laws. However, important contributions to scientific knowledge also lie beyond the scope of Intellectual Property (“IP”) protection. The traditional knowledge (“TK”) of Indigenous peoples has made valuable contributions to what we call STEM disciplines, and continues to do so today. Numerous historical examples exist: aspirin derived from salicylaterich willow bark, quinine from the South American Cinchona tree, and South Asian turmeric, a culinary and medicinal root. This rich knowledge can also be “‘encoded’… into different types of resources — epic poems, religious texts, marriage and family customs, music, artistic designs, healing treatments, and so on.”1 Traditional knowledge has benefited many, yet certain features of IP protection inhibit legal recognition. At times, the IP system even favors its exploitation in unfair ways, as is the case in relation to “biopiracy.”2 One such aspect of certain IP rights is the emphasis on “new” creation. TENSION BETWEEN NOVELTY AND TRADITIONAL KNOWLEDGE The explicit purpose of copyright and patent regimes is to encourage new creation, whether new types of “useful art, process, machine, manufacture, or composition”3 that are patentable, or “original” creative works eligible for
copyright protection. This is a core tenet. Once the inventor or creator meets this threshold requirement, patents and copyright respectively offer the benefit of a temporary monopoly. The goal is to encourage dissemination by “incentivizing” creators.
Protocol4 was ratified by 117 states, confirming two rights for TK holders: (1) the right to obtain free, prior, and informed consent for the use of their traditional knowledge and (2) the right to equitable benefit sharing from the use of traditional knowledge.
However, TK by definition is not “new.” Rather, it is knowledge gathered and accumulated by communities over time, usually involving complex interactions between humans and their environment. It is said to have been known “since time immemorial.” Concepts such as novelty or originality neither reward its holders nor encourage them to share.
Canada is not one of those countries. However, in 2016, Canada signed on to the UN Declaration on the Rights of Indigenous Peoples5, subsequently implementing regulations that recog-
RIGHTS, IF NOT OWNERSHIP While late, there is a growing awareness that those who have developed TK should receive legal recognition. However, this will require a modified understanding of IP regulation. In contrast to IP rights, the objectives of recognition for TK would be twofold: to provide modern validation for TK, and to protect it from misappropriation. Still, as with an inventor or creator, the fundamental policy question remains the same: not to determine whether knowledge exists, but to ensure that its holders can be rewarded while society benefits. ENCOURAGING AND REWARDING SHARING While no solution currently exists, proposals have been made to close this gap. In 2010, the Nagoya
nize the value of TK and the right to hold that knowledge in confidence, at least in the limited context of environmental project reviews and regulatory decisions.6 While developing a wholly new and distinct form of protection for TK will require both creativity and a new perspective, neither should be an insurmountable barrier: creativity and novelty are the stock and trade of STEM — or at least of IP. Click on footnote number above for more information.
1-6
Mathew Brechtel is an Intellectual Property Partner at Seastone IP. Professor Mira T. Sundara Rajan is an IP consultant & Visiting Professor at UC Davis Law School, formerly Canada Research Chair in IP Law, and Associate Professor of Law at UBC. AUGUST 2022 / BARTALK 19
communitynews BCLI’s Undue Influence Recognition/Prevention Guide Update Project The BC Law Institute (“BCLI”) is planning to issue a new, updated edition of its popular publication Recommended Practices for Wills Practitioners Relating to Potential Undue Influence: A Guide (“Guide”). First published in 2011, the Guide explains how lawyers and notaries can best shield vulnerable clients against undue influence and steps that help to insulate wills and personal planning documents against later challenge on the basis of undue influence. The Guide contains a Reference Aid checklist and flowchart that are also available as a self-contained document. Prompted partly by the 2020 amendments to WESA that allow electronic wills and make remote witnessing of will signatures by audiovisual (“AV”) technology a permanent measure, the new edition will address best practices to counter possible undue influence when using AV technology to communicate with clients. It will contain expanded coverage of verbal and nonverbal cues of possible undue influence that lawyers must be vigilant to detect in both face-to-face and remote communications with clients. It will also contain an updated summary of testamentary and inter vivos undue influence law as applied in BC, including recent case law under s. 52 of WESA. BCLI is creating the new edition of the Guide with the assistance and advice of an interdisciplinary volunteer committee. The updated edition will be available later in 2022 at bcli.org.
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NIKOLA RAJIC
Equal Parts Science, Technology, and Intellectual Property Law
T
he relationship between science, technology, and intellectual property is symbiotic. Whether it is copyright law protecting software, trademark law protecting a brand and goodwill associated with a blockbuster drug or popular technology gadget, or plant breeders’ rights protecting a new plant variety — science, technology, and intellectual property law co-exist and mutually benefit one another. However, such symbioses cannot be more obvious than the symbiosis between science, technology, and patent law. Without science and technology, patents and patent law simply could not exist. Patents bestow exclusive rights over scientific or technological inventions to their holders. Patents also help in the development of science and technology. At the core of the patent system is a bargain designed to incentivize public disclosure of inventions so that further scientific or technological advancements can be made while being respectful of the potentially significant resources that went into developing that invention. Also, the availability of patents has helped many startup technology companies secure funding to pursue development of new technologies. In exchange for filing a patent application, which inherently publicly discloses a described technology, a granted patent furnishes a time-limited monopoly over the technology.
Moreover, the process of evaluating applications for patents requires the perspective of a hypothetical “person of skill in the art” (e.g., a scientist, engineer, or other technical person). For a technology to be patentable, the technology must be both novel and inventive. A technology is novel if there has not been a public disclosure describing the technology anywhere in the world prior to the relevant date. In limited circumstances, disclosures of the technology originating from the inventors of the technology may be excluded from consideration. A technology is inventive if it would not have been obvious to arrive at the technology given the state of the art at the relevant date. Whether a technology is novel and inventive is assessed from the perspective of a person of skill in the art
Science, technology, and intellectual property law co-exist and mutually benefit one another. to which the technology relates. For example, if the technology relates to an electrical circuit for managing touch screen performance in a portable electronic device, then the person of skill in the art may be a hypothetical electrical engineer with
experience designing circuits for portable electronic devices. Likewise, if the technology relates to a compound for treating a human disease, then the person of skill in the art may be a hypothetical biochemist with experience developing compounds for treating human diseases. A patent application must sufficiently describe the technology that the inventors seek to protect. Again, whether a technology is sufficiently described is assessed from the perspective of a person of skill in the art. While a patent application is being drafted, the inventors are generally involved and work together with their patent counsel. The majority of the text of a patent application is technical writing (written with legal consideration in mind). The description and associated drawings typically include chemical formulas, technical drawings, circuit diagrams, mathematical relationships, etc. In some cases, biological matter itself such as bacteria, fungi (including yeast), plant seeds, cells in culture, nucleotide sequences, plasmids, vectors, viruses, phages, replication-defective cells, etc. may form part of a patent application. Ultimately, even though science and technology and intellectual property law are developed and exist in different environments, intellectual property law supports science and technology and vice versa. In such role, intellectual property law may be a supporting cast member to a new scientific or technological advancement. In some instances, new scientific or technological advancements and intellectual property law are co-stars. Nikola Rajic is an associate at Oyen Wiggs, a Vancouver based Intellectual Property Law Boutique. AUGUST 2022 / BARTALK 21
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DR. LACHLAN DEYONG
Render unto lawyers that which is lawyers’, and unto support tools the things that are support tools’
I
would like to start with a trite but potentially provocative observation: a great many legal matters do not require a lawyer to resolve. The future of legal practice is one where we do better at triaging legal services. By triaging I mean the process of parsing which services require a lawyer for resolution, and which do not. At the Cyberjustice Lab, we have developed a tool called JusticeBot, which answers questions about tenancies that might otherwise require a lawyer to answer. JusticeBot does not provide legal advice — instead it is a solution explorer, which uses Artificial Intelligence (“AI”) to guide you through the experience of being a tenant or landlord with a legal issue, and provides possible answers to your legal issue(s).
solution to the access to justice crisis. At the Cyberjustice Lab, we are harnessing recent improvements in AI and Natural Language Processing (“NLP”) to make our legal self-help tool, JusticeBot, more effective. NLP is a kind of computer programme that allows us to make sense of messy data — from cases to transcripts to emails and more. NLP allows us at the Cyberjustice Lab, for example, to allow an individual to type in their tenancy related legal issue into JusticeBot — NLP is able to “read” the typed text and guide them down a set pathway to their likely legal solution.
The future of legal practice in Canada involves triaging legal services into those that need lawyers and those that can use legal self-help tools like online resources, solution explorers, case predictors, and other free, quick, and readily accessible tools. This will have innumerable benefits for the access to justice crisis in Canada. At the Cyberjustice Lab, we are trying to change practice by allowing individuals to have more control over their own legal destiny by educating themselves and empowering them to resolve, where appropriate, their legal issues without lawyers.
Technological improvements have been substantial in recent years — AI backed solution explorers are only one such case. NLP is another.
Technology is part of the future of legal practice — and part of the 22 BARTALK / AUGUST 2022
A great many legal matters do not require a lawyer to resolve. NLP can help reduce legal costs and can provide legal insights that would otherwise require thousands of hours of legal work. In one recent study, I supervised a team of three Masters of Data Science students at UBC to develop a NLP protocol that “read” every single negligence case in the
BC Supreme Court from 2000-2020 — roughly 4400 cases, a feat that took these relatively novice student programmers a few hundred hours — not thousands. Using nothing more complex than these students’ intelligence and grit, and a decent amount of coding, we were able to extract that the written length of cases in this time had nearly tripled, damage awards had increased from $150,000 on average to $225,000 (adjusted for inflation) and contributory negligence had stayed static at around 20% of cases. The implications of NLP for the future of legal practice is profound: if cases — the bread and butter of legal practice — can be interpreted and mined en masse by NLP, then, with appropriate triaging, the domains where lawyers have exclusive jurisdiction shrinks further, and purpose-built online legal tools can operate in this ceded jurisdiction. At the Cyberjustice Lab, we are part of an emerging access to justice movement that operates in the space where formal legal advice is only one of the potential solutions to the issue — and with the radical improvements of AI, NLP, and other technologies, this space is only going to get larger and larger. We are part of the future of legal practice. This future involves effective distribution of scarce resources and judicious use of legal work — as well as using technology to resolve those issues where a lawyer’s involvement is surplus to requirements. Lachlan is a Postdoctoral Fellow at the Universite de Montreal, and a former director of the Better Justice Lab. He is passionate about access to justice solutions.
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ALEXANDRA MITRETODIS
Innovative Legal Services
W
e use the following terms to describe the likelihood of a litigation outcome: “more likely than not,” “the odds are good,” or “strong case.” Rarely does a client hear “it’s a sure thing,” or “it’s a slam dunk.”
In the current information age, there are copious amounts of data available to help litigators inform their strategies and assess risk. Knowing how to use data sources and how to stay on top of emerging technology trends impacting litigation is essential for all litigators.
THE IMPORTANCE OF PREDICTIVE METHODOLOGIES FOR LITIGATION Litigators should become better predictors for the following reasons:
brings numeracy to the litigation practice;
leads to better informed settlements (influence of data on negotiations);
reduces uncertainty and surprises for clients; and
reduces the influence of inherent bias (confirmation bias, recency bias, sunk loss fallacy, etc.).
THE RIGHT OUTCOME VS. THE PROBABLE OUTCOME There is a difference between the right outcome and the probable outcome, and both are important. Case law allows litigators to predict the right outcome, but predicting results is an assessment of the probable outcome. One approach assumes an ideal judge, whereas the other assumes consistent conduct. One narrows variation in facts, whereas the other assumes the relevance of broader factors. One matches to the perfect precedent, whereas the other matches to populations of data.
The characteristics of a good predictor are:
Probability analysis is widely used in numerous sectors, including sports, weather, medicine, and stock markets. In a business environment, for example, probability analysis can show entrepreneurs the most likely outcomes and most profitable paths.
ANALYTICS TOOLS FOR LITIGATION
One of the most common probability exercises that litigators use are decision trees to strategically organize and link multiple litigation issues to identify the range of potential outcomes and associated probabilities.
they establish general prior probability and adjust for variables;
they are mindful of scale;
they revisit their predictions often; and
they are self-critical by seeking lessons learned and avoiding easy explanations for successes and failures.
There are several different analytics tools that litigators can use to become good predictors. These tools permit litigators to use cases to gain general insights and predictive analytics, investigate a judge’s case history, know their opponent better, and conduct more thorough research to evaluate risk and outcomes. Analytics tools that are available in North America include:
Court Analytics (by Loom Analytics);
BlueJ Legal;
Context (by LexisNexis);
DocketAlarm (by FastCase);
Lexis+ (LexisNexis);
Westlaw Edge (by Thomson Reuters);
Cara (by Casetext);
Structura (by Loom); and
Data-Driven Decisions Program (by Lenczner Slaght), which includes the Supreme Court of Canada Leave Project, Commercial List Project, and Supreme Court of Canada Decisions Project. LITIGATING IN AN ERA OF “THINKING” SOFTWARE When transforming data into an asset, it is important to keep systemic bias in mind. Historical data used to train system can build bias into the system, which can repeat history if not used in conjunction with human discretion.
Questions that we will have to grapple with in the profession as artificial intelligence continues to gain traction are how we train articling students and lawyers to best use artificial intelligence, whether artificial intelligence can be used by the judiciary to assist with judicial decisions, whether there are any impacts on access to justice, whether there are obligations to disclose the use of machine learning (e.g., in document production), and what tasks we should be using artificial intelligence for in the place of humans. Alexandra Mitretodis is a litigation and dispute resolution partner in Vancouver at Fasken, with a practice in class actions, international and domestic arbitration, and commercial litigation. AUGUST 2022 / BARTALK 23
communitynews
TIPS FROM
STEM Drivers for Tech Competence
In case you’re glossing over this thinking “Hey, I’m just a lawyer with a liberal arts degree. I did my LL.B/JD because words and persuasive reasoning are my strengths — not Newtonian physics and circuit boards” please hold on a sec. You don’t have to be an IP lawyer, consume medical reports for breakfast, or impeach cyber-forensic experts to consider the impacts of STEM on law and the delivery of legal services. You don’t even have to be at a big law firm (who are under increasing pressure from non-traditional competitors such as tech-savvy accounting firms) to see that legal service delivery is increasingly becoming tech and data driven. At some level, every lawyer is a business (or is some firm/department/employer’s business) so even if your files have nothing to do with STEM subject matters, there are mounting STEM factors that influence your viability/competitiveness as a service provider: online marketing, productivity software, document automation, etc. And quite apart from the slick tools that can help your bottom-line, there are STEMdriven standards that influence people’s opinions about their lawyer’s professional competency — take encryption for example (how well do we protect a client’s communications and information). So what does any of this have to do with a law library like CLBC? For starters, we are an accessible gateway to the many CLEBC course materials that have been published with your technological competence in mind. Send us an email (librarian@ courthouselibrary.ca), come on in, or call us and we’d be happy to help you out.
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ADAM HOWDEN-DUKE
Mediation and STEM Does a mediator need to have subject area knowledge?
A
s with many things in the Alternative Dispute Resolution (“ADR”) realm, there are many published articles and schools of thought as to whether it is beneficial for a mediator to be skilled in the subject matter of the dispute.1 In particular, there are those who opine that it is important (or even required) that the mediator have specialized knowledge of the subject matter that is being mediated, and others who argue equally strongly that a good mediator is solely the guardian of the “process,” and that the specialist skills required relate only to the management of the mediation itself.
does not make recommendations to the parties, or give their own advice or opinion as to the outcome of the case. The mediator is in charge of the process, while the parties are in charge of the outcome. Evaluative mediation is modeled on settlement conferences held by judges. An evaluative mediator still
In order to consider this question when selecting a mediator, it may be helpful to understand that there are different types of mediation. For this article, we consider only two types, but it is important to note there are others and ADR continues to undergo innovation (an example being Online Dispute Resolution as something distinct, being born out of the COVID pandemic).
follows the process noted above, but also assists the parties in reaching resolution by pointing out the weaknesses of their cases, and opining on what a judge or jury is likely to do.
In facilitative mediation, the mediator structures a process to assist the parties in reaching a mutually agreeable resolution. The mediator asks questions, validates and normalizes parties’ points of view, searches for interests underneath the positions taken, and assists the parties in finding and analyzing options for resolution. The facilitative mediator
The above should not be thought of as compartmentalized but, more as a spectrum along which a particular mediation may fall. It is apparent that the type of mediation is relevant in considering what skills the mediator requires, including specialist subject area knowledge. For example, one point of view is that, in a facilitative model where
the intent is for the mediator to be purely “hands off,” subject area knowledge is not necessary. It has also been argued that even in this model, subject area knowledge is vital as it is otherwise impossible to know what is fair or not fair as a mediated resolution. However, it could equally be argued, that the mediator’s role is not to determine “fairness” — that is the role of the participants. In a more evaluative mediation, where mediators actively use their expertise to inform or even challenge parties, subject area knowledge may be of great assistance. On the other hand, seeking out a mediator with subject matter know-
ledge may defeat the purpose of a mediation based upon the ability of each party to convince a judge of the merits of their position — given the judge is unlikely to possess subject area knowledge. In summary, as with many aspects of ADR, the answer to this question may well be “it all depends” (on both the circumstances and each parties’ own perspective). 1 Please contact the author if you are interested in a collection!
Adam Howden-Duke is a partner at Guild Yule LLP in Vancouver, and a member of the Board of Directors of Mediate BC. AUGUST 2022 / BARTALK 25
practicetalk DAVID J. BILINSKY
AI and Law Practice The future is now r They’ll never take my pride They’ll never take my strength They’ll never take my faith They’ll never take my trust They’ll never take my hope But I’m ready to go For the love that’s there for the takin’ (for the takin’) r — Lyrics custom generated by AI using “lawyers and change.”
A
rtificial Intelligence (“AI”) was a science fiction concept that has walked out of fiction novels and
into our lives.
AI AND E-DISCOVERY: It didn’t take long for e-Discovery vendors to start incorporating AI into their products. AI started out by analyzing large document sets for the purpose of predicting document relevance in litigation cases. It then went further and suggested priorities of what needs to be reviewed. This process takes place much faster and cheaper than the older method of armies of associates reading every document in a data set. Using it early in the e-discovery process, and repeated as new documents appear, enhances the results. Based on learning garnered from past actions and outcomes, AI now grasps the overall e-discovery process and can suggest who should be interviewed, what new keywords should be searched and what should be placed under a legal hold. 26 BARTALK / AUGUST 2022
One of the newest applications in this area is Sherlock — merlin.tech’s digital bloodhound. They state: “Sherlock is our revolutionary, AI-powered digital document bloodhound. It is a smart, machine-learning algorithm designed to make it easier to find information in large document populations. They go further: “Sherlock’s strength is its speed, scalability and flexibility. It can analyze and rank a million documents in 100 milliseconds — 10 million in a second. It can then deliver new documents in order of likely relevance, allowing you to review and mark them relevant (“Thumbs Up”) or not (“Thumbs Down”).” You can send one document or many to Sherlock. It will analyze them, extract key terms, build an AI model on the document set and apply the model to millions of documents in milliseconds. AI AND TRANSACTIONAL PRACTICE: Is a client looking at a merger or purchase of a business? Submit the contracts of the target to AI and have it analyze them for errors, missing information, and inconsistent language so your client knows what to expect in the book of business they are looking to acquire. The Amercian Bar Association reports: “Such software can also
ensure that language is applied consistently, no matter how many attorneys had a hand in the drafting. Through document comparison and automatic learning, software such as contract comparison tools can identify missing clauses or conditions, inconsistently used terminology or undefined terms, both within a single document and across a pool of similar documents.” Such contract and document review software can be invaluable when it comes to looking at large IP portfolios for example, by analyzing them and drawing insights therefrom. Developers here include leverton.ai, from the German Institute for Artificial Intelligence. It is a patented and award-winning product that uses AI to extract relevant data, manage documents, and compile leases in real estate transactions. The cloud-based tool is said to be capable of reading contracts at high speeds in 20 languages. Another developer is thoughtriver.com, a “contract acceleration” application, which handles contracts, portfolio reviews, and investigations for improved risk management. Its “Fathom Contextual Interpretation Engine” was developed together with machine learning expert authorities at Cambridge University. The company states that it designed the product to automate summaries of high-volume contract reviews. While users usually read content
extracts, they can also read the meanings of clauses provided by AI. The system is also said to be capable of flagging risky contracts. AI AND LEGAL RESEARCH: What started off as a simple idea of digitalizing case law now has some serious long-term implications for lawyers. These databases have gone well beyond just case law to incorporate all types of legal information, in multiple languages, from multiple jurisdictions. These big databases are tamed by AI research assistants, which use machine learning and natural language processing to aid your legal research. Take vlex.com. vLex is “The world’s largest collection of legal information, on one service.” It offers a wide range of legal titles and collections containing thousands of documents, with daily updates — all available on a single AI-powered legal research platform. It received the 2021 Legal Breakthrough Award for Vincent AI, its legal research assistant. vLex states: “Only with vLex can you access full-text Canadian cases, the entire Irwin Law collection of legal books and the Maritime Law Book, alongside coverage from over 100 countries, with authorities seamlessly linked across jurisdictions to enhance your legal research.” Unfortunately, another promising AI legal research initiative, ROSS Intelligence, which had started in 2014 at the University of Toronto, had to close shop in January 2021 due to the fact that a lawsuit by Thomson Reuters (“TR”) had left it without sufficient funds to operate. TR alleged that it stole content from Westlaw to
build its own competing legal research product. ROSS is fighting the lawsuit and vows to come back. Bob Ambrogi quoting ROSS’s CEO Arruda in legalsites.com writes: “Once the litigation concludes, we hope to return to business as usual: innovating in the legal research space,” he said. “That might mean licensing the technology or using it in other applications, or it might mean building and iterating our platform as it exists today. But for the time being, we are focused on winning this litigation.” We hope ROSS emerges and pursues the promise of their innovations. There are other AI legal research providers as well, such as: alexsei.com — Alexsei produces memos referencing caselaw and legislation in select regions of the United States and Canada. AI IN LITIGATION: AI is being used to analyze possible legal arguments and case strength by taking the case facts and using AI prediction technologies to forecast litigation outcomes. Legal analytics software can look at a judge’s past rulings, win/loss rates and other data points to look for trends and patterns in case law and predict a possible case’s outcome. AI can also be used to analyze a client’s legal position and determine if there are any logical inconsistencies, gaps in evidence, logic, or arguments in a client’s position. Once uncovered, the lawyer can then evaluate risks and see if there are additional documents, witnesses or such that can be used to tighten up a legal position.
AI AND THE HUMAN INTERFACE: There are other benefits. Lawyers can do something that AI, at least at the present time, cannot — namely build a human-to-human connection. Relieved of the tedium of law practice, lawyers can spend their time learning the client’s business and building the bonds that will strengthen the lawyer — client relationship. Since lawyers are no longer chained to their desks performing mindnumbing hours of contract or document review, they can enjoy a higher quality of life and they can take on more of the type of work they enjoy. This is not only more satisfying, it taps into their creativity and purpose for which they went into law — namely to meet client needs. It keeps client’s better informed, it lowers stress, leads to a better worklife balance, and provides greater confidence in the results. Since AI is so much better at taking on large data sets (in whatever context) it can lead to saving time for the client and the lawyer, which in turn can reduce costs and increase satisfaction. AI can also lead to higher quality results, as the machine never tires, goes on a break, or gets ill. Change is happening to the law due to AI and lawyers are clearly lining up to take the love. The views expressed herein are strictly those of David Bilinsky and do not reflect the opinions of the Law Society of British Columbia, CBABC, or their respective members. David J. Bilinsky is the principal of Thoughtful Legal Management, a technology and practice management consultancy and is the former Practice Management Advisor, Law Society of British Columbia. Email: daveb@thoughtfullaw.com Blog: thoughtfullaw.com AUGUST 2022 / BARTALK 27
communitynews Supporting Innovative Legal Research and Legal Scholars Scientific advances, with developments in information and computer technology, often raise new questions for legal scholars, creating challenges for the administration of justice. The Law Foundation supports scholars researching some of those emerging questions through its annual Legal Research Fund Program and Graduate Fellowship Program. The Legal Research Fund supports projects focusing on research likely to have a practical impact in improving access. Graduate Fellowships are awarded to graduate students in law or a law-related area whose research aligns with the Foundation’s goals of improving access to justice. Through these programs, the Foundation is pleased to be able to support some of the innovative work at the intersection of science, technology, and the law currently underway in British Columbia. A recent example of this is the Graduate Fellowship awarded to LLM Candidate Kate Gower in 2021 — the Fellowship was to support her graduate research at the University of Victoria’s Faculty of Law. Her work examines how innovative technologies can be employed to improve access to justice within the emerging justice system’s digital and online environments while still preserving the integrity of those legal processes. The Foundation will be accepting applications to the Legal Research Fund between July 27-September 2. The call for applications for 2023-2024 Graduate Fellowships opens in November 2022.
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JASMEET K. WAHID
The Future of Legal Services for Assisted Reproductive Technology
M
edical and scientific fields have made significant strides in the area of reproductive technology. From In-vitro fertilization (IVF) to storage of genetic material, intended parents have options that did not exist a generation ago. Collectively, these reproductive advancements are known as Assisted Reproductive Technology (“ART”). In response to same, the Canadian Parliament passed the Assisted Human Reproduction Act (“AHRA”) in 2004. However, as ART and the human experience continues to evolve, the AHRA remains static and flawed. In a 2020 Court of Appeal decision [L.T. v. D.T. Estate 2020 BCCA 328], the claimant applied to the court following the sudden death of her husband for the posthumous retrieval and use of his sperm.
Prior to the husband’s death, the couple had discussed the desire to have more children. While the court acknowledged the inherent tragedy of the case, the wife’s request was ultimately denied based on the statutory interpretation of the consent provisions in the AHRA. It remains unclear as to what would satisfy these consent provisions. There are no prescribed forms on how to carry out the consent regulations of the AHRA legislation nor is there public education on this matter. It is unlikely that a simple gifting and intention clause would be sufficient nor is a will adequate. This is a conundrum for lawyers and medical professionals who are trying to guide their
clients/patients in navigating this difficult area. The L.T. case shows the disconnect between the legal reality and the human reality. The gap between technological and scientific advancements and governing law to support/regulate those developments is a recurring matter. A decade in scientific or tech circles is a relative eternity in terms of development, but the same amount of time is seen as recent history in the legal community. These other industries show little sign of slowing their pace. It is vital to shine a light on this topic and to encourage proactive responses in political, legislative, medical, and legal arenas. Human reproductive law is an intensely personal area of practice, often with extremely time-sensitive constraints. In this area, the legislation can and should do better. Jasmeet K. Wahid is a partner at KZEL, LLP. Her family law practice is diverse and interesting. It includes matters regarding division of property, support, parenting, adoption, reproductive technology, and child protection. Jasmeet appears in all levels of court.
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nothingofficial TONY WILSON, QC
Praise Be, Y’all!
Forward into the past with the United States Supreme Court
T
he column that you would normally see in August is usually written by me on July 1. But this Canada Day, I’m on a cruise ship in Alaska, so my attention is focused on the United States and its Supreme Court, which in comparison with virtually every other Supreme Court in the Free World, including Canada’s, seems to be stuck somewhere between 1859 and 1965. Shortly after yet another horrendous mass shooting at a Texas elementary school, the Court expanded gun rights in the US, by striking down a New York State law that would have regulated a citizen’s right to carry a concealed handgun in public. Now everyone can walk around town with a concealed rod, just like they did on Gunsmoke! Two weeks after that ruling, the same Court overturned Roe v Wade; a 50-year-old landmark decision that struck down state laws that prevented a woman having control over her own reproductive health. This means that American women have fewer rights in 2022 than their mothers and grandmothers did! It’s no longer a constitutionally protected right to have an abortion in the US, and some states have now banned abortions outright, even in cases of rape and incest, forcing a woman to travel out-of-state for the procedure, carry the child to term, or force women to obtain unsafe “back-alley” abortions. Some say that the US Supreme Court is more interested in protecting the rights of fetuses and gun owners than the rights of women and school children. Others say the United States is bold enough to force women to have children, but too cowardly to ensure
those children make it to recess alive. The ever-prescient Margaret Atwood, author of The Handmaids Tale, weighed in on the Court’s decision. “In the fictional theocracy of Gilead, women had very few rights, as in 17th century New England. The Bible was cherry picked, with the cherries being interpreted literally.” Although she eventually completed The Handmaid’s Tale, she said she stopped writing several times because she considered it too far-fetched. “Silly me,” she said. What can the US federal government do in the aftermath of this decision? Freely distribute abortion pills in those states with restrictive abortion laws? Fund outof-state travel to a state where a woman can have an abortion, like the underground railway of the 19th Century? Offer abortions on federal property in anti-abortion states, such as on Army, Navy, or Air Force bases? Regulate male reproductive organs? At least two of the Trump-era appointees to the Court testified during their confirmation hearings that Roe v Wade was settled law, causing Alexandria Ocasio-Cortez to seek their impeachment for lying to Congress. But in an unsettling feat of jurisprudential gymnastics, the majority ruled that it’s the States themselves, not the federal government, that has the jurisdiction to craft their own abortion laws. So, does this mean individual states can craft other laws that deprive citizens of their freedoms, like laws
dealing with, say, slavery? What other rights are on the chopping block? Legal scholars are focusing on obiter by Justice Clarence Thomas, who said that the Court should also reconsider cases involving gay-rights and samesex marriage, although ironically, he didn’t say anything about interracial marriage, which only became “legal” in 1967. And stay tuned to whether Thomas recuses himself from any cases involving President Trump and the January 6 insurrection in light of his wife’s blatant encouragement of a coup d’état that would have kept Mr. Trump in power. And in the “be careful what you wish for” department, another recent decision of the Court ruled that public school employees cannot be fired for praying while supervising students, leading some pundits to raise the law of unintended consequences, because the door has been opened wide to the followers of Satan, the Church of the Flying Spaghetti Monster (also called Pastafarians), Church of the Sub Genius, Dudists, and the Almighty Bob, who can now seemingly lead children in prayer before class or during football games. Praise be, y’all. Time to move Margret Atwood’s books from the fiction section to “current events.” Tony Wilson, QC is a Life Bencher of the Law Society, a Vancouver Franchise Lawyer, humourist, self-professed thought leader and all-around raconteur. Consequently, the views expressed herein are his alone and do not reflect the opinions of the Law Society, the CBABC, or their respective members. AUGUST 2022 / BARTALK 31
barmoves Who’s Moving Where and When Mina Kahn
Natasha Cooke
joined Hamilton Duncan as an associate practising Employment Law, Commercial and Business Litigation, Insurance Defence, and more.
joined Harper Gray as an associate. Natasha completed her articles with the firm and was recently called to the BC Bar.
Krystin Wang
Claire Shanna
joined Lindsay Kenney LLP as a lawyer in their Family Law and General Litigation group
joined Harper Gray as an associate. Claire completed her articles with the firm and was recently called to the BC Bar.
Jason Wahlla
Grace Smyth-Bolland
joined Hamilton Duncan as an Insurance Defence litigation associate.
joined Harper Gray as an associate. Grace completed her articles with the firm and was recently called to the BC Bar.
Gordon Zenk
Emma Sydora
joined Hamilton Duncan as associate counsel. Gordon has a distinguished career practising Insurance Defence and Family Law.
joined Harper Gray as an associate. Emma completed her articles with the firm and was recently called to the BC Bar.
Preet Gill
Scott Somers
joined Hamilton Duncan as a litigator, primarily focusing on Insurance Law and Insurance Defence.
joined Lindsay Kenney LLP as a lawyer in their Estate Litigation group.
32 BARTALK / AUGUST 2022
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Dana Kiefer
Daniel A. Grice
joined Lawson Lundell as an associate in their Labour, Employment, and Human Rights group. Dana was called to the Alberta Bar in 2017.
joined KSW Lawyers as an associate. Dan works with personal and business clients. He assists with wills, complex trusts, acquisitions, incorporations agreements, re-organizations, land development, and real estate.
Winston Yee
Amrik Narang
joined Lawson Lundell as senior counsel in their Corporate Commercial group. Winston was called to the British Columbia Bar in 1994.
joined KSW Lawyers as an associate in their Abbotsford office. He assists clients with corporate, real estate and probate matters, including the purchase and sale of businesses, corporate reorganizations, and more.
Ben Westerterp
Clayton Loewen
joined Lawson Lundell as an associate in their Mining and Real Estate groups. Ben was called to the British Columbia Bar in 2022.
joined KSW Lawyers as an associate. Amrik assists with real estate matters, including conveyancing, land development, mortgages, and financing. He also assists with estate planning, wills, and power of attorney.
Arjun S. Hair
Bo Carter
joined Koffman Kalef LLP as an associate in the Lending/ Insolvency group.
joined Clark Wilson LLP as an associate in their Insurance group. Her practice includes specialty insurance defence and insurance coverage matters.
Paul R. Ives, QC moved his solicitors practice, after 30 years at Ives Burger in Courtenay, to the Courtenay office of Ramsay Lampman Rhodes.
AUGUST 2022 / BARTALK 33
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