Archive for August, 2008

Keep Judgments Fully Public

Wednesday, August 20th, 2008

An article on the front page of today’s Toronto Star reports on a speech made by the federal Privacy Commissioner, Jennifer Stoddart, to the annual meeting of the Canadian Bar Association.  Ms. Stoddart is now concerned that private details of personal information should not be revealed in court judgments.  While she recognized that openness of the courts was an important requirement, it is not as important as it once was and constitutes a concern for personal privacy.  Rubbish!

If the concern is that too many personal details are being exposed in litigation, then that is not the court’s fault.  If little Cindy-Lou Who finds out that her parents have been doing all sorts of nasty things to each other by reading their divorce case online, the fault is that of the parents for, in the first place, doing those things, and in the second place, for airing their dirty laundry in public.

If the concern is with family law matters, as noted in the article, then one can easily follow the Quebec model.  There, instead of Jones v. Jones, the case is entitled “Droit de la Famille 1234″ (or “Family Law 1234″) and Mr. Jones is referred to as “husband” or “father” and Mrs. Jones as “wife” or “mother”.

When it comes to non-family matters, then often one of the only ways that one can determine with whom one is dealing is through a search of court opinions.  For example, I had a client come to me recently to start litigation.  One of the participants in the matter, and a potential defendant, is now located in southern Ontario.  However, a quick search revealed that this person had been convicted in northern Ontario of fraud.  That is an incredibly important thing to know since it now heightens the possibility that suing this person may be of little benefit since the person has many other creditors standing in line ahead of my client.

Similarly, if you want to do a deal with a new customer or supplier and you don’t know enough about this person or company, a quick web search may reveal that they have been sued many times for breaching contracts.  I cannot think of any businesses that would not want to know this information.  And even in the same vein, if Mr. Jones slept around on his wife that might not be of great interest to people potentially doing business with Mr. Jones.  But, in an age when corporate reputation is based not only on what you do but also on who you do business with, if it turned out that Mr. Jones also beat his wife, then I think that businesses would also like to know this information before they work with Mr. Jones.

If litigants are concerned about dirty laundry being aired in public, then they can always go with private mediation or arbitration and avoid the spotlight of the court.  Or, better yet, keep their laundry clean in the first place.

With respect, the benefits that Ms. Stoddart wishes to achieve will be greatly outweighed by the lost benefits of the current system and the loss of access to important information.


The Benefit of Preparation

Tuesday, August 19th, 2008

I have been away from Canada for the past couple of weeks dealing with personal matters.  One of these matters required me to go to Paris, France.  During that time I was able to get in a little bit of sight-seeing and I had the opportunity to go to Les Invalides where Napoleon is buried and where the Musee de l’Armee is located.

As part of the Musee de l’Armee there is an area called the Musee des Plans-Reliefs, or Relief Maps Museum.  It is absolutely fascinating.  Inside there are extremely detailed miniature replicas of key towns and fortresses throughout France.  The first of these relief maps were created during the reign of Louis XVI (the “off with his head” husband of Marie “then let them eat cake” Antoinette).  The contours of the land, the exactness of the miniature buildings, etc. would have given Napoleon and his army the ability to determine exactly where to place the troops, the lookouts and such.  While the other armies and their generals would have had rough two-dimensional maps to look over, Napoleon had a three-dimensional map showing the key nooks and crannies of the land on which the battle would be fought.

Was Napoleon a great general?  I leave that for the historians to debate – although his string of success ought to say something in his favour.  But these relief maps helped to bring home to me once again that success, whether in business, litigation or anything else, comes from 90% preparation (some would say perspiration) and 10% inspiration.  Who gets the higher market share?  Who wins the lawsuit?  Who has the better negotiations?  Usually, the one who has done more homework that the other.  It certainly seemed to work for Napoleon and the French army.