The Canadian Bar Review

ALGORITHMIC PERSONALIZED PRICING

Pascale Chapdelaine — 2024-04-24

Price is often the single most important term in consumer transactions. As the personalization of e-commerce continues to intensify, the law and policy implications of algorithmic personalized pricing i.e., to set prices based on consumers’ personal data with the objective of getting as closely as possible to their maximum willingness to pay (APP), should be top of mind for regulators. This article looks at the legality of APP from a personal data protection law perspective, by first presenting the general legal framework applicable to this commercial practice under competition and consumer law. There is value in analysing the legality of APP through how these bodies of law interact with one and the other. This article questions the legality of APP under personal data protection law, by its inability to effectively meet the substantive requirements of valid consent and reasonable purpose. Findings of illegality of APP under personal data protection law may in turn further inform the lawfulness of APP under competition and consumer law.

DE QUELQUES SPÉCIFICITÉS DU CODE DES PROFESSIONS DU QUÉBEC ET DE LA DISCIPLINE DES PROFESSIONNELS MEMBRES DES ORDRES

France Houle — 2024-04-24

In contrast to common law, the Quebec legislator harmonizes the rules of law by subjecting all professionals to the Professional Code. Countless regulations stem from this framework law, including codes of ethics that hold a privileged status within the professional legal system. The ethical regulatory framework that guides the autonomy of over 420,000 Quebec professionals primarily aims to protect the public. It distinguishes itself in some respects from the ethical standards governing professionals in other provinces through its civil law codification, the regulatory power of its codes of ethics, and its application principles borrowed from administrative, civil, and criminal law. Supervising compliance with these rules is the responsibility of the agents of each order. Data shows that they play a central role in maintaining ethical standards in the three main professional sectors governed by the Professional Code: Law, Administration, and Business; Engineering, Development, and Sciences; and Health and Human Relations.

THE FEDERAL COURTS’ ADVANTAGE IN CIVIL PROCEDURE

Gerard Kennedy — 2024-04-24

This article considers whether procedure in the Federal Court and Federal Court of Appeal (the “Federal Courts”) is more efficient than in many large superior courts and thus is better suited to facilitating access to justice. Through a combination of analyzing rules and case law and interviews with judges and lawyers, the author concludes that there is significant truth to this hypothesis. After giving an overview of particularly distinct aspects of Federal Courts procedure, various reasons for the difference in efficiency in court procedure are considered. It is ultimately concluded that Federal Courts’ procedure’s efficiency is due to a confluence of factors. Some of these are not realistically applicable to other jurisdictions, such as a relatively small court and confined subject matter jurisdiction. But others are very applicable, including: a friendly but strict registry; case management; enforcement of rules; and judicial specialization. While the article is largely praising of Federal Courts procedure, areas of potential improvement are considered, including court composition, the integration of civil law; and limitations due to confined subject matter jurisdiction (which is a double-edged sword for access to justice). But ultimately, the article is complimentary towards initiatives and culture in the Federal Courts that have been to the benefit of access to justice.

INTIMATE PARTNER VIOLENCE AND ETHICAL LAWYERING

Deanne Sowter — 2024-04-24

Should family lawyers be subject to special rules of professional conduct? This debate has resurfaced because of the 2021 amendments to the federal Divorce Act (“Act”), which imposed new professional obligations on lawyers. The suggestion is that the Act now conflicts with the Federation of Law Societies Model Code of Professional Conduct (“Model Code”), such that the Model Code needs to be amended to comply with family lawyers’ legislative professional obligations. There are also questions about whether additional guidance is needed for lawyers when representing parties who are experiencing family violence.

Against this backdrop, I review the question of whether family lawyers ought to be governed by a separate code of professional conduct, suggesting that there are questions about the lawyer’s role which need to be answered before a comprehensive regulatory change can be considered. I also argue, however, that family violence concerns, specifically in relation to intimate partner violence, need to be central to discussions about professional rules and ought not wait. This paper concludes with recommendations for reform to the Model Code and questions for future debate and discussion.

RECOURS EN DOMMAGES POUR UNE GROSSESSE NON DÉSIRÉE

Étienne Giasson — 2024-04-24

Civil remedies actions related to an unwanted pregnancy and birth have been part of the Quebec and Canadian legal landscapes since the 1970s. Courts have long relied on morality to the prejudice of the rules of law, by judging that the pleasures and advantages of having a child somehow outweigh the inconveniences, notably the economic damages suffered as a result. In Quebec, the cost of raising a child can be claimed following a landmark decision by the Court of Appeal in 1995.

A historical review of this type of action by a legal author shows that proof of economic damages is often overlooked or even nonexistent, resulting in a lack of clear guidance for establishing it.

The addition of an expert in economics as a co-author, allows for a critical review of available economic approaches and the proposal of a rigorous method for calculating such financial loss.

THE WRONGFULLY CONVICTED DESERVE ACQUITTALS NOT PROSECUTORIAL STAYS

Kent Roach — 2024-04-24

Between 2006 to 2008, no less than three public inquiries recommended that, absent a reasonable likelihood of re-prosecution, prosecutors should allow the wrongfully convicted to be acquitted and not be subject to prosecutorial stays. Prosecutorial stays are an exercise of prosecutorial discretion under. 579 of the Criminal Code that can only be challenged with evidence of flagrant impropriety. They do not provide protection against double jeopardy. They can amount to a third “legal limbo” verdict between guilty and not guilty. Only two prosecutorial services in Canada have adopted the three inquiry recommendations in their guidelines or deskbooks. This failure has real world consequences: namely at least five cases involving seven accused in four different provinces since 2016 where convictions were overturned because of new evidence relevant to guilt or innocence only to be the subject of a prosecutorial stay which deprived the previously convicted person of a verdict on the merits. In addition to being at odds with the three inquiry recommendations, such uses of prosecutorial stays promote continued suspicion of the wrongfully convicted and create two classes of the wrongfully convicted: those who are acquitted and those who only receive a prosecutorial stay.

THE CASE FOR A CANADIAN PANEL ON MULTI-JURISDICTIONAL CLASS PROCEEDINGS

William Hourigan — 2024-04-24

In Hryniak v Mauldin, the Supreme Court called for a cultural shift to promote timely and affordable access to the civil justice system in Canada. The failings of the civil justice system with respect to class proceedings are particularly troubling. The authors focus on multi-jurisdictional proceedings, which are procedurally complex and notoriously slow-moving, and on past efforts by the bar and bench to render these proceedings more efficient. For the most part, existing reform measures are discretionary, ad hoc, and premised on the consent of all the parties. Whereas cooperation is currently an option under the various reform measures, cooperation should be the rule.

The authors recommend that legislatures simplify and expedite class proceedings across the country by creating a Panel based in part on the United States District Courts’ Judicial Panel on Multidistrict Litigation. The Panel would have representation from all provincial jurisdictions and its mandate would be restricted to three areas. First, it would determine the appropriate forum for a national class action to be heard and stay competing class proceedings. Second, it would determine which plaintiff law firms would have carriage of the selected proceeding. Third, where the parties obtain court approval of a settlement in the province having jurisdiction over the case, the Panel would be responsible for approving class action settlements for the other participating provinces. The authors canvas potential constitutional challenges to the proposed model, concluding that the model does not offend section 96 of the Constitution Act, 1867.

PRIVITY OF CONTRACT AND THIRD-PARTY BENEFICIARIES IN CANADIAN SHIPPING

Mary Ppasiou — 2024-04-24

Himalaya clauses are provisions in contracts of carriage that limit the liability of third parties who perform the carriage. The doctrine of privity has traditionally restricted the enforcement of such clauses. However, after the Supreme Court of Canada established the “principled exception” to privity, courts permitted the enforcement of Himalaya clauses by third-party beneficiaries who were unaware of the clause at the time of performing the carriage. This Article argues that this wide enforcement of Himalaya clauses causes incoherence in Canadian contract law. Further, the Article proposes an alternative restrictive understanding of the “principled exception” based on estoppel.

Goff & Jones

Mitchell McInnes — 2024-04-24

By C. Mitchell, P. Mitchell & S. Watterson
10th ed. (London: Sweet & Maxwell, 2022, cxlvii and 1093, £349)