Increasing Number Of Men Pressured To Accept Realistic Standards Of Female Beauty

This article appears in the Onion website. It is certainly “tongue in cheek,” but provokes some good thought.

Confronted on a regular basis with images of women who represent a diverse array of body types, a growing number of American men are reportedly feeling pressured to accept the increasingly realistic standards of female beauty now depicted in the media, social scientists confirmed this week. Read More...

I Don’t See Race; I Only See Grayish-Brown, Vaguely Humanoid Shapes

This article was written by Janice Ketchum and appears in the Onion website.

I don’t understand why everyone seems to be so angry lately. Everywhere you look, there are marches, protests, riots—and all of it over so-called racism in our great country. I just don’t get it. I really don’t. But maybe that’s because, when I look at my fellow Americans, I don’t see a particular race or color. In fact, all I see is just a series of muted, roughly person-shaped silhouettes.

And this world would be a much better place if everyone else did, too.

Obesity can constitute a disability in certain circumstances, the EU's highest court has ruled.

This article appears in the BBC’s News website.

The European Court of Justice was asked to consider the case of a male childminder in Denmark who says he was sacked for being too fat.

The court said that if obesity could hinder "full and effective participation" at work then it could count as a disability.

The ruling is binding across the EU.

A Primer on Rum

This article appears in the Art of Manliness website.

Rum is, without a doubt, the most underappreciated spirit. When one thinks of manly, sophisticated, classic drinks, rum is rarely on the list. Whiskey, and all its variants, is easily pictured in the hands of a mustachioed gentleman sitting in a recline with a book. Gin is the base for the eminently classy martini, as well as other noble cocktails. Even vodka has become a staple of urban bars, and has been the spirit of choice in Eastern Europe for centuries. Rum, however, is most often perceived as being nothing but a product of piracy and slavery, with no real benefit outside of being a mixer with Coke or fruity tropical beverages.

Au contraire, rum has a rich history (even playing a part in the American Revolution!), and an even richer present and future as a drink that can be enjoyed neat or with ice, or as a foundation in a number of spectacular cocktails. Let’s take a look at what rum is, its fascinating history, how to drink and enjoy the spirit, and then a couple cocktail ideas.

Laid Off From Your Job? Don’t Take It Personally

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If your employment was unexpectedly terminated today, it's important to remember it's not personal, and there is no need to despair or panic.

You are not alone. A very large number of Canadian employees have been dismissed during their careers, many more than once. As result, there is no longer the stigma associated with dismissal (or suing of employers) that existed when I began to practise law.

Supreme Court of Canada Rules Police Can Search Cellphones Upon Arrest

As long as the search relates directly to the arrest and the police take detailed notes of what they examined and how they did it, law enforcement officials have the right to search the cellphones of people they arrest, the Supreme Court of Canada ruled today.

Today’s ruling is highly important, as it may bring consistency to a series of inconsistent Canadian court rulings on this matter. The fact is, the issue is complex and also includes privacy issues, as smartphones are able to carry vast amounts of personal information.

As the CBC report highlights, it wasn’t an easy decision: the Supreme Court of Canada split 4-3, with the idea of a “search done in good faith” overtaking privacy. The majority also found that “passwords protecting phones don’t carry much weight in assessing that person’s expectations of privacy.”

An example of a “search done in good faith”: in the case of Kevin Fearon, who was convicted of armed robbery, law enforcement officials found evidence by doing a search on his phone. He ultimately challenged the search of his phone, saying his rights were violated because the police did not take adequate notes on the action.

Today, however, the country’s top court ruled that searches should be done right after the lawful arrest in order to serve the purposes of the ruling. The police must take detailed notes of what they examined and how they did it, and they must have a “valid law enforcement purpose,” such as protecting the police, the accused, or the public; preserving evidence; or discovering evidence, like locating additional suspects.

I Want To Leave Work Early To Pick Up My Child. Does My Employer Have To Accommodate Me?

Your employer denies your request for an hour shift change to allow you to pick up your child from school each day at 5 p.m. Can you now file a valid human rights complaint for discrimination based on family status? Absolutely. And, however unlikely to succeed there can be no reprisal for making the complaint.

But will you win? In its recent decision in
Canada (Attorney General) v. Johnstone, the Federal Court of Appeal made its decision based on the answers to four questions: Read More...

Be More Memorable: How to Better Answer the 3 Questions You Always Get Asked When Meeting Someone New

This article appears in the Art of Manliness website.

Almost every time you meet someone new, there are three questions you will probably have to answer during your conversation:

  • What’s your name?
  • What do you do?
  • Where are you from?

These three questions are so common, and you answer them so frequently, that it is very easy to get in the habit of answering them the same way, again and again, without thinking. You probably get bored with your own answers, so you don’t put energy and effort into offering them in an interesting way. “Hi, I’m Joe. I work in public relations for an energy company downtown, and I’m from the Midwest but moved here a couple years ago.” Zzzzz…

You might even feel like Bill Murray’s character in Groundhog Day – going through the exact same routine time in and time out. It may even contribute to why so many of us dread meeting new people.

Yet it’s worth upping your game in this area; how you respond to these three common introductory questions can greatly impact your first impression, how memorable you are to a new acquaintance, and whether your relationship ever gets past first base, so to speak.

In this post I will outline 6 specific strategies for answering these almost inescapable questions in ways that are distinct and memorable. I will also share advice from experts in communications, linguistics, and networking about how you can stand out from the pack.

Additionally, I will give specific examples of how you can use these tips in practice.

Nine Years Too Late, Wal-Mart’s First Unionized Employees Win At The Highest Court

The saga of North America's first unionized Wal-Mart has taken a significant turn in favour of its former employees, nine years after they lost their jobs when the store in Jonquière, Quebec was permanently shut. Much ink has been spilled telling the story of the Jonquière store, its successful unionization in 2004, and its closure in 2005, which was announced on the very day that an arbitrator had been appointed in relation to the what was to have been the store's first collective agreement. Now, the Supreme Court of Canada in United Food and Commercial Workers, Local 503 v. Wal-Mart Canada Corp., 2014 SCC 45 has, for a second time, considered the rights of the store's employees in the context of that store closure. This time, however, the Court issued a significant victory in favour of the employees which may have implications across the country.

In 2009, the Court dismissed a pair of appeals –
Plourde 2009 SCC 54 and Desbiens 2009 SCC 55 – in which former employees sought remedies after the store closure. On June 27, 2014, the Court released the decision of a seven-member panel's consideration of a grievance claiming that Wal-Mart's closure of the store violated the "freeze" provisions of Quebec's Labour Code. Similar to provisions elsewhere, the s. 59 "freeze" restricts the employer's ability to "change the conditions of employment of his employees" during certain phases of collective bargaining. In a 5-2 ruling, the Court upheld an arbitrator's award which had found that the closure of the store constituted an impermissible change in the employees' employment conditions in the absence of evidence that the closure was made in the ordinary course of the company's business. Read More...

Termination The Only Acceptable Outcome For Employee Who Calls In Sick In Order To Play Baseball

In reasons released June 19, 2014, the Alberta Court of Appeal upheld a lower Court decision quashing labour arbitration award (Telus Communications Inc v Telecommunications Workers Union, 2014 ABCA 199). The case involved an employee of TELUS Communications Inc. who had requested a day off work to play in a softball tournament (which was denied) only to call in sick on the day in question. Suspicious that he was not actually sick, the Grievor's manager had attended the ball diamonds where he witnessed the Grievor playing baseball. When confronted, the Grievor stated that he was suffering from a severe case of diarrhea on the day in question and was not playing baseball. The Grievor later admitted to being at the baseball diamonds when confronted with the fact that someone had seen him there; however he stated that he was only watching. The Grievor subsequently admitted to playing, but minimized his involvement on the basis that he was "only pitching". TELUS terminated the Grievor for cause.

The Arbitrator reinstated the Grievor and substituted a one-month suspension for termination. According to the Arbitrator, TELUS had no direct evidence that the Grievor was not sick as he claimed and that his explanation regarding his absence was "plausible".

TELUS sought judicial review of the Arbitrator's award. It argued that the Arbitrator had failed to consider the overall weight of its circumstantial evidence, which pointed, irrefutably to the fact that the Grievor had lied about being sick. It also argued that the Arbitrator's award suggested an employee could be too sick to work yet sufficiently well to play baseball, and unreasonable interpretation of the sick leave provisions contained in the party's collective agreement. TELUS argued that termination was the only reasonable outcome on the evidence and, as such, the Arbitrator's award should be quashed without remitting the matter for rehearing.

The Alberta Court of Appeal determined that the Arbitrator had acted unreasonably in requiring TELUS to lead direct evidence establishing that the Grievor was not sick, an impossible standard. The Arbitrator was required to weigh the circumstantial evidence against the Grievor's testimony in order to determine whether the Grievor had lied about being sick. As the overwhelming weight of the evidence pointed to the fact that the Grievor had lied about being sick, the Arbitrator's conclusion otherwise was unreasonable. Having quashed the award, the Court declined to remit the matter back to Arbitrator for hearing. The only reasonable inference to be drawn on the evidence was that the Grievor had lied about being sick, then repeatedly lied to his employer after the fact, and at Arbitration. The Court concluded that termination was the only reasonable outcome on the evidence and that remitting the matter to arbitration would be pointless.

Post-termination Evidence Of Dishonesty Substantiates Just Cause

A recent decision in British Columbia (Campbell v Harrigan Rentals and Equipment Ltd.) has found post-termination evidence of just cause for dishonesty discovered in an investigation of an employee that occurred following his termination. Read More...

Employee Must Work Through Notice Of Resignation

Employment contracts contain mutual notice requirements on the termination or resignation of employment. The terms of notice and severance are a key component of the hiring negotiations, i.e. one month per year of service or a variation on that theme. What is seldom addressed, even by lawyers, is the notice that is required from the departing employee to the corporate or institutional employer prior to resignation. Read More...

I Don’t Support Feminism If It Means Murdering All Men

Katherine Adams
Here is another Jonathan Swift like article written by Katherine Adams and also appearing on “the Onion” website. Read More...

No One Should Have The Right To Die Until God Is Done Toying With Them

amy foster
The following article was written by Amy Foster and appears on “the Onion” website. Ms. Foster may seem irreverent, but I believe nothing could be further from the truth. She writes in a style very much like one of my favourite authors—Jonathan Swift. Read More...

Supreme Court of Canada rules there is a new general duty of "honest contractual performance."

In Bhasin v Hrynew:

"C markets education savings plans to investors through retail dealers, known as enrollment directors, such as B. An enrollment director’s agreement that took effect in 1998 governed the relationship between C and B. The term of the contract was three years. The applicable provision provided that the contract would automatically renew at the end of the three year term unless one of the parties gave six months’ written notice to the contrary.

H was another enrollment director and was a competitor of B. H wanted to capture B’s lucrative niche market and previously approached B to propose a merger of their agencies on numerous occasions. He also actively encouraged C to force the merger. B had refused to participate in such a merger. C appointed H as the provincial trading officer (“PTO”) to review its enrollment directors for compliance with securities laws after the Alberta Securities Commission raised concerns about compliance issues among C’s enrollment directors. The role required H to conduct audits of C’s enrollment directors. B objected to having H, a competitor, review his confidential business records.

During C’s discussions with the Commission about compliance, it was clear that C was considering a restructuring of its agencies in Alberta that involved B. In June 2000, C outlined its plans to the Commission and they included B working for H’s agency. None of this was known by B. C repeatedly misled B by telling him that H, as PTO, was under an obligation to treat the information confidentially. It also responded equivocally when B asked in August 2000 whether the merger was a “done deal”. When B continued to refuse to allow H to audit his records, C threatened to terminate the 1998 Agreement and in May 2001 gave notice of non‑renewal under the Agreement. At the expiry of the contract term, B lost the value in his business in his assembled workforce. The majority of his sales agents were successfully solicited by H’s agency.

B sued C and H. The trial judge found C was in breach of the implied term of good faith, H had intentionally induced breach of contract, and both C and H were liable for civil conspiracy. The Court of Appeal allowed the appeal and dismissed B’s lawsuit."

The S.C.C. held (7:0) that the appeal with respect to C is allowed; the appeal with respect to H is dismissed; and the trial judge’s assessment of damages varied to $87,000 plus interest.

Avoid These Pitfalls When Writing A Reference For A Dismissed Employee

Many employers worry that if they fail to provide a dismissed employee with a deserved reference, additional damages could follow. That concern is not without warrant, but careful thought should go into writing that reference. Read More...

Unionized Employee Cannot Seek Judicial Review of Labour Arbitrator’s Decision Without Union

The Ontario Divisional Court recently quashed an application for judicial review brought by an individual employee seeking to overturn an arbitrator's decision denying his discharge grievance. The Court ruled in Ali v United Food and Commercial Workers Canada that an individual employee lacks standing to apply for the review of an arbitration award. Subject to limited exceptions, only the union had the right to commence, withdraw or challenge arbitration proceedings. Read More...

Ed The Sock Posts Powerful Facebook Message About Jian Ghomeshi

The following is a reprint of an article by Chris Jancelewicz on HuffPost Canada TV. Read More...

Employee Not Allowed To Sue Employer For Injuries Resulting From Workplace Harassment

In Ashraf v SNC Lavalin ATP Inc. ("Ashraf") an Alberta judge upheld a master's decision to strike the statement of claim of a worker seeking to sue his employer for injuries resulting from workplace harassment. The Statement of Claim of the Plaintiff was struck on the grounds that the Alberta Worker's Compensation Act bars all rights and causes of action against an employer resulting from injuries which arise as the result of employment – including those related to workplace harassment.

All Canadian provinces have a comparable provision in their respective workers' compensation statutes. In Ontario, section 16 of the Workplace Safety and Insurance Act extinguishes the right of an employee or an employee's family to pursue an action against an employer for injuries arising from employment.

The 15 Spookiest Episodes of Old Time Horror Radio

This article appears in the Art of Manliness website.

Before folks sat around the TV watching American Horror Story or classic movies like The Shining and Friday the 13th, they gathered around the radio to listen to their favorite weekly programs. Many of them were comedies or dramas, just like today’s television programs, but there were also shows dedicated to the creepy crawly — that made goosebumps rise and sent shivers down the spine. It’s often said that what you can’t see is scarier than what you can, and radio programs can sweep you up and create a whole spooky world in your imagination.

With Halloween coming this weekend, there’s no better time to visit some of the scariest shows and episodes that old time radio has to offer. They’re all available for free online, making for quality, affordable entertainment. If you’re interested in more, I strongly suggest checking out both
RadioHorrorHosts.com and www.escape-suspense.com; both were immensely helpful in my research for this piece. I’ve broken it down by radio show, then given a few suggestions of episodes to listen to from each show. To up your experience, convert an old-time radio into a mp3 speaker and huddle around it with your family or friends with the lights dimmed. Read More...

How to Fail and Live to Talk About It: 10 Tips for Explaining Your Missteps Without Sounding Like a Train Wreck

This article appears in the Art of Manliness website.

In this post, I want to talk about . . . how to talk about your professional failures without sounding like a train wreck.

Most of us have to confront this question sometime in our lives. We face a setback or a defeat and then we have to move on.

Then the question becomes how do you talk about your experience or your background when elements of that work history may be viewed as a failure? How do you talk about your setbacks and missteps, without having the world judge you or deny you future opportunities?

Today, I am going to challenge the conventional wisdom when it comes to talking about failure. I will explain why the way we talk about failure is due for a change. And I will explain how you can actually benefit from talking about your failures and setbacks, just like you can benefit from sharing your accomplishments.

Finally, I’ll share ten specific tips for talking about your failures, mistakes, setbacks, and liabilities in a way that will help explain and give context, instead of excuses.

Koskie presents seminar on Self-Defence (Person and Property)

self defence
Koskie presents seminar on Self-Defence (Person and Property)

Changes To "Canada Not-For-Profits Corporations Act" Require Compliance By All

canada flag
In an effort to modernize its statutes and processes, the Government of Canada has brought about wholesale changes to the Canada Not-For-Profit Corporations Act ("the new NFP Act"). All federal not-for-profit corporations must complete the process to transition to the new rules no later than October 17th, 2014. Any not for profit corporation which fails to make the transition will be automatically dissolved. Read More...

The 20 Things You Need To Stop Doing To Yourself

The following is a reprint of an article appearing in Elite Daily. It is great food for thought.

We are our own greatest enemy. We doubt ourselves, complicate our lives, cloud our minds with unimportant thoughts and negativity, we punish ourselves, hate ourselves and then feel sorry for ourselves because “outside forces” are making our lives a living hell. Life is beautiful — you’re making yours a living hell all on your own. Each of us does things from time to time that make living happily more difficult than it needs to be.

Surely some of us have it difficult because those are the cards that we’re dealt, but most of us — especially those who are better off financially and don’t live on the streets — make our very own lives more difficult for ourselves. But there are things you can do to stop the miserable cycle that you have found yourself in — a cycle that I know all too well. Here’s 20 of them:

Don’t tell me how educated you are, tell me how much you have travelled.

Allison Smith wrote the following article entitled “Travel is Not Education.” It is good food for thought. Read More...

Wal-Mart (Still) Pays High Price For Failing To Investigate Employee’s Complaint

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A recent Ontario Court of Appeal decision in Boucher v. Wal-Mart Canada Corp., is an important reminder to employers that failing to properly investigate allegations of harassment in the workplace can be incredibly costly. Read More...

Public International Law: State Immunity

In Kazemi Estate v. Islamic Republic of Iran, 2014 SCC 62 (35034), the Supreme Court of Canada ruled state immunity is constitutional. Read More...

Gloves Come Off: Sky High Damages In Human Rights Cases

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Human Rights Tribunals across the country have been issuing damage awards which have raised the eyebrows of the employer community. In a number of recent cases, employees have been awarded record setting damages. In many of these cases, these damages have greatly exceeded what a Court would be prepared to award in a wrongful dismissal cases. Read More...

Farwell v. Citair: "Insurmountable" Obstacle In Mitigation

In Farwell v. Citair, Inc. (General Coach Canada), the Ontario Court of Appeal makes an important point with respect to the application of the principles of mitigation in a constructive dismissal case. Read More...

Is It Permissible To Backdate The Effective Date Of A Contract?

It is common for two parties, particularly in the commercial context, to enter into a contract at one time, but agree to have the contract come into effect at an earlier time. This practice is colloquially known as backdating. Courts respect the parties' decision to backdate since giving effect to backdating provisions respects the parties' intentions as well as their freedom of contract (Chablis Textiles Inc. (Trustee of) v London Life Insurance Co, [1996] SCJ No 12, [1996] 1 SCR 160 at para 25). Read More...

No Anonymity For Grievors

pub ban
In Sunrise Poultry Processors Ltd. v. United Food and Commercial Workers, Local 1518, the BC Labour Relations Board has upheld BC Arbitrator Stan Lanyon's decision that the names of grievors and witnesses should, as a general rule, be published in labour arbitration awards. Read More...

Koskie presents seminar on Wills and Estates.

Koskie presents seminar on Wills and Estates.

How to be Right a Lot of the Time

The following is a reprint of an article by Jason Fried. It is entitled “Some advice from Jeff Bezos.” Mr. Bezos is an American business magnate and investor. He is a technology entrepreneur who has played a key role in the growth of e-commerce as the founder and CEO of Amazon.com, an online merchant of books and later of a wide variety of products. Under his guidance, Amazon.com became the largest retailer on the World Wide Web and a top model for Internet sales. In 2013, Bezos purchased The Washington Post newspaper. I was referred to this site by John Gruber.

Jeff Bezos stopped by our office yesterday and spent about 90 minutes with us talking product strategy. Before he left, he spent about 45 minutes taking general Q&A from everyone at the office.

During one of his answers, he shared an enlightened observation about people who are “right a lot”.

Holding Companies Demystified

legal-structure copy
The following is an article by Jason Melo of Collins Barrow National Cooperative Inc.

As tax professionals, we are often asked by clients to explain the concept and appropriate uses of holding companies. The answer generally is not straightforward; a variety of tax and commercial factors are relevant in any particular case. Though it is beyond the scope of this article to provide a complete list of potential benefits and drawbacks, an introduction to several key issues will be examined.

Get the Perfect Haircut: How to Talk to Your Barber

This article appears in the Art of Manliness website.

Think back to your last haircut. How’d you feel about it when you walked out of the shop? Disappointed? While your disappointing haircut might have been due to poor barbering, it’s often the case that your poor communication with the barber was at least partly to blame. Barbers can’t read minds. If you don’t tell them exactly what you want, you’re going to get whatever haircut the barber feels comfortable giving. For example, I knew an old barber (and I’m talking old) who’d give every customer a crew cut if the customer didn’t explicitly say exactly how he wanted his hair cut.

If you want to avoid this fate, you have to learn how to talk to your barber. But telling a barber what you want can be intimidating for a man, especially with all the special lingo they throw around. Well, never fear. I called up registered master barber Steve Hankins from Red’s Classic Barbershop in Indianapolis, IN to get the scoop on how to confidently communicate with your barber. With his tips, we’ve created a comprehensive guide on what to say to your barber so you get exactly the haircut you want next time you plop down in that chair. Let’s get to it.

A Matter Of Effect Over Form: Court Approves Novel Approach To Restrictive Covenants

In light of the traditionally intense scrutiny non-compete and non-solicit clauses face from the courts, employers have been increasingly turning to creative and novel contractual tools for protecting their interests and recovering costs when an employee turns into a competitor.

In a recent decision,
Rhebergen v Creston Veterinary Clinic Ltd, 2014 BCCA 97, the British Columbia Court of Appeal upheld as enforceable a novel restrictive covenant requiring a former employee to pay a certain amount in the event they began to compete with their former employer.

In what may come to represent the beginning of a significant shift in the drafting of restrictive covenants, Rhebergen suggests that the Court will be more likely to enforce a restrictive covenant that merely inhibits rather than prohibits competition.

"SEA Change": Key Highlights Of The Saskatchewan Employment Act Regulations

On April 29, the Government of Saskatchewan proclaimed The Saskatchewan Employment Act (the "Act") and its Regulations into force. This article builds on Jeff Grubb and Kara Bashutski's March 27 communiqué, " Reinventing the Wheel: Changes to the Standard '40 Hour' Work Week and Expanded Decertification Time". While the Act has been available for some time, the Regulations, which provide a better understanding on how the new labour and employment laws will operate, were only released very recently. This communiqué is intended to introduce some of the more noteworthy changes in the Regulations. Read More...

Schools preach 'enthusiastic' yes in sex consent education

The following is a reprint of an article by Emanuella Grinberg of CNN.

Thousands of freshmen at the University of California-Berkeley swiped their student cards last week at the doors of Zellerbach Hall and filed into the dark auditorium for one of the few mandatory sessions in their three-week welcome program.

Dealing with sexual harassment, alcohol and stress were on the 90-minute "Bear Pact" agenda -- much of what you might expect in a freshman orientation, said 17-year-old Alexandra Yoon-Hendricks, who attended one of three sessions offered.

One topic, however, caught her by surprise: the definition of sexual consent, the way we let others know what we're up for, be it a good-night kiss or the moments leading up to sex.

A slide projected onstage defined consent through three "pillars": "Knowing exactly what and how much I'm agreeing to; expressing my intent to participate; deciding freely and voluntarily to participate."

Instead of waiting for your partner to say "no," speakers onstage told students, you should seek an explicit "yes." It could come in the form of a smile, a nod or a verbal yes, as long as it's unambiguous, "enthusiastic" and ongoing.

To Yoon-Hendricks, a staff writer for the teen publication Sex, Etc., it was a refreshing stance for a school to endorse.

"I loved hearing that, because I'd never really heard people describe consent in that manner before," she said. "Instead of saying 'no means no,' 'yes means yes' looks at sex as a positive thing."

It's a message students across the country are hearing as they return to campus for a new semester. Often referred to as affirmative consent, it's the concept of both parties agreeing to sexual conduct, either through clear, verbal communication or nonverbal cues or gestures.

"There are lots of ways to express 'yes.' My favourite is 'yes,'" a speaker told the Berkeley freshmen.

California might become the first state to make affirmative consent law. Senate Bill 967 would amend the education code to require schools whose students receive financial aid to uphold an affirmative consent standard in disciplinary hearings and to educate students about the standard. The legislature sent the bill to Gov. Jerry Brown last week.

The legislation has the support of victims' rights groups, violence prevention groups and the University of California System. But critics worry it could define a great deal of sexual activity as "sexual assault" and undermine due process rights of the accused.

Even if Brown vetoes the legislation, consent will still be defined on the University of California's 10 campuses as an "affirmative, unambiguous, and conscious decision by each participant to engage in mutually agreed-upon sexual activity."
What that looks like in practice is harder to explain, leaving institutions grappling with how to make the policy more meaningful than words in a student handbook.

"There's varying language, but the language gets to the core of people having to communicate their affirmation to participate in sexual behaviour," said Denice Labertew of the California Coalition Against Sexual Assault. "It requires a fundamental shift in how we think about sexual assault. It's requiring us to say women and men should be mutually agreeing and actively participating in sexual behaviour."

"Control And Dependency Define The Essence Of Employment", SCC Rules

The Supreme Court of Canada released a highly-anticipated decision for professional partnerships, employers and employees in McCormick v Fasken Martineau DuMoulin LLP.

In short, McCormick, a partner at a large law firm, claimed that the mandatory retirement provision in the partnership agreement was discriminatory and contravened the Human Rights Code. The case was eventually heard by the British Columbia Court of Appeal, which concluded that McCormick could not be both a partner and an employee of the partnership. The Supreme Court of Canada upheld the result in the Court of Appeal, but disagreed with the lower court's following conclusion:

There can be no doubt that in Canadian law, a partnership is not a separate entity from its partners, and a partner cannot be an employee of, or employed by, a partnership of which he is a member.

The Court held that the Court of Appeal focused too much on the legal form of a partnership, rather than its substance. Rather, in determining whether an employment relationship exists, "control and dependency define the essence of an employment relationship for purposes of human rights legislation".

Successor And Related Employer Obligations: Not Just For Unionized Employees

A recent decision of the Ontario Superior Court of Justice confirms that the labour law concepts and resulting liability for related or predecessor companies may extend into the employment law sphere. As a result, a company may potentially be liable as the "employer" of an individual who was never actually employed by that entity. Read More...

10 Overlooked Truths About Taking Action

This is a guest post from Kyle Eschenroeder. It appears in the Art of Manliness website.

“This is a holy moment. A sacramental moment. A moment in which a man feels the gods as close as his own breath.

What unknowable mercy has spared us this day? What clemency of the divine has turned the enemy’s spear one handbreadth from our throat and driven it fatally into the breast of the beloved comrade at our side? Why are we still here above the earth, we who are no better, no braver, who reverenced heaven no more than these our brothers whom the gods have dispatched to hell?”

In this speech from Steven Pressfield’s gripping, well-researched re-telling of the Battle of Thermopylae (Gates of Fire), the Spartan King Leonidas addresses his troops after a victory. He is reflecting on the fact that when you do battle in chaos, Lady Fortuna and skill have an equal say in the outcome. Pressfield explains this dynamic in his equally worthwhile non-fiction work, The Warrior Ethos:

“In the era before gunpowder, all killing was of necessity done hand to hand. For a Greek or Roman warrior to slay his enemy, he had to get so close that there was an equal chance that the enemy’s sword or spear would kill him. This produced an ideal of manly virtue – andreia, in Greek – that prized valor and honor as highly as victory.”

Andreia meant that judgment was based on actions taken — not outcomes. Society understood that the outcome was, at least in part, in the hands of the gods. What was in a man’s control was how he acted.

We tend to mix this up. There is an army of authors studying “successful” people and writing lists of 5, 7, 10, or 20 things that they did to become successful. All you have to do is emulate the list and you, too, can be successful.

That’s like looking at the living Spartan soldiers and explaining why they survived. Leonidas would laugh at their idiotic arrogance.

We have become so focused on results that our actions have become a secondary concern. We judge men based on what they have instead of what they do. We signal our ideals instead of embracing them.

In his short book Do the Work, Pressfield relates a New Yorker cartoon that cleverly skewers our preference for thinking about things, rather than doing them:

“A perplexed person stands before two doors. One door says HEAVEN. The other says BOOKS ABOUT HEAVEN.”

He’s perplexed. He’s considering the book. It’s funny because it’s absurd… and because we know we’d have the same consideration.

That’s where we are as a culture. We run desperately to abstraction and avoid action at all costs. Thoreau’s man of “quiet desperation” has never been so prevalent.

The world is full of men who are “stuck” in life. There has been some mass paralysis. Modern man has forgotten how to take action.

The culture is beginning to shift, though. The popularity of Nassim Taleb and his Incerto series, beginning with Fooled by Randomness, has brought an appreciation of randomness to a large segment of society. As we’ll see soon, a focus on action is dominating the business world as well.

The economist and author of Average is Over, Tyler Cowen, agrees:

“The more information that’s out there, the greater the returns to just being willing to sit down and apply yourself. Information isn’t what’s scarce; it’s the willingness to do something with it.”

A world that is increasingly confused, uncertain, and paralyzed is calling out for men of action. We need to stop thinking and start acting. Stop looking at the big red button and push it. Stop planning and take a step forward. Stop talking about grit and take a hit.

In short, the world needs men. I’m not sure if you’ll answer the call. I do know some will, though, and that’s all we need. I’ll be out there, too. You’ll probably find me facedown in failure. I’d appreciate a hand.

The next section will provide 10 powerful and mostly overlooked truths about the nature of action.

The final section will provide two specific practices that will force you into creating a habit of taking action.

Your next action? Continue reading.

Setting The Record Straight On Common HR Follies

python drill
As in life, the practitioners in the field of human resources too often blindly follow the folly of others, to the point it becomes collective wisdom. The assurance of the crowd creates its own certitude. Yet, a Monty Python skit I recall, hit the nail on the head. In it, a drill sergeant was calling out orders to the troops. While almost all of the soldiers were marching in unison, one aberrant marched to his own drum. Finally, the sergeant erupted, yelling: "He is the only one doing it right."

Following are some common human resource practices that have little rational foundation:

How to Enter a Room Like a Boss

The following is a reprint of an article written by John Corcoran. It appears in the Art of Manliness web site. John Corcoran is an attorney and former Clinton White House writer.

Charlie Dresow knew when he entered the courtroom that every eyeball would be trained on him.

It was the first day of trial for his client, Max Wade. A child of a well-to-do family who was raised in affluent Marin County outside San Francisco, Wade was accused of a crime spree of epic proportions, including a daring heist of celebrity chef Guy Fieri’s yellow Lamborghini, as well as stealing police uniforms and badges, and attempted murder.

The car theft wasn’t just any car theft. This was the Mission Impossible of car thefts.

The Food Network star’s Lambo was in for service at British Motor Cars, a luxury car dealership in San Francisco. Shortly past midnight, a man dressed in all black rappelled down from the roof of the dealership and into a window. Security camera footage showed the man stalking around the dealership, ninja-style, until he drove off in the Italian sports car.

The attempted murder was equally brazen. A man – also dressed in black – rode up on a motorcycle and opened fire on a girl and her boyfriend as they sat in a truck talking in broad daylight.

And perhaps the craziest part? Wade was under 18 at the time the crimes occurred.

The sensational nature of these crimes meant everything would be riding on Dresow, and that all eyes would be on him when he entered the courtroom that day.

Dresow knew he couldn’t look unsure of himself as he walked in. You need to “just walk in like you know what you’re doing even if you don’t,” he says. Most importantly, he needed to project an air of authority, conviction, and certainty. “You have to have a plan and be confident in what you want to do and do it the way you want to do it.”

He had to look, in other words, like a boss.

Only he had to look like the good kind of boss — more like Tom Hanks’ character in Saving Private Ryan, and less like Alec Baldwin’s character in Glengarry Glen Ross.

Dresow knew, intuitively, the importance of making a strong first impression. “If you don’t take how you appear seriously,” he says, “how can you expect anyone else to take you seriously?”

Why How You Enter a Room Matters

Even if you aren’t a high-profile trial attorney like Charlie Dresow, you are being judged every time you enter a room.

Imagine, for example, you’ve just entered a room full of people you want to impress. It could be a roomful of your peers, or potential clients, or even a bar filled with attractive women.

You’re feeling pretty good — you’re wearing a new shirt and you’ve got your best cologne on that smells like George Clooney in a bottle.

And then one of your buddies pulls you aside and whispers to you that your fly is open.

Ouch. You’ve just experienced the brutal reality of first impressions. They can be good, and they can be really, really bad.

But here’s the thing: leaving your zipper open is just one obvious example of ways we all can ruin a first impression. In reality, there are many things we all do, unintentionally, when we enter a room or gathering of new people that equates to walking into a room with our fly open.

In other words, we’re killing our best chances at success with our own bad habits, mistakes, or simply ignorance. The stakes here are high. First impressions set the tone for entire relationships, whether it’s interviewing for a job, meeting one’s future in-laws for the first time, introducing ourselves to someone we admire, landing a new client, or getting a girl.

But here’s the good news – it doesn’t have to be that way. There are things we can — and should — do to put our best foot forward anytime we enter a room.

Art of Manliness has previously covered how to command a room like a man. Today I’m going to back up a bit and share specific steps you can take to enter any room projecting an air of confidence, self-assurance, and authority, without coming off like Michael Scott walking into a Dunder Mifflin staff meeting.

Below I share 9 specific, easy-to-implement tips culled from experts in psychology, social dynamics, and networking that will show you how to enter any room like a boss.

If you lived and died in Delaware, your family now gets access to your digital afterlife.

The following is a reprint of an article by Colin Lecher posted on the Verge website.

The law can't always keep pace with technology. We end up with digital remains haunting loved ones after death, and patchwork laws that don't always work out for the companies holding data, or the families who want it. The non-profit Uniform Law Commission has been pushing states to enact a broad, universal law that ensures heirs the right to digital assets, and it passed last week in Delaware.

How to Be Polite

My favourite blogger, John Gruber, referenced this nice article by Paul Ford. Enjoy. Read More...

Robin Williams Dies at 63

This is a sad day. A genius died. Here is one of the better articles (by Dave Itzkoff of The New York Times) about Robin Williams. Read More...

B.C. Human Rights Tribunal Awards Unprecedented $75,000 for Injury to Dignity and Nearly 500k In Total Damages

In keeping with the trend of rapidly increasing damage awards for human rights violations in the employment context, in Kelly v., UBC, the B.C. Human Rights Tribunal recently awarded an Applicant close to $475,000 in damages including an unprecedented $75,000 in damages for injury to dignity, feelings and self-respect and over $385,000 in lost wages. Read More...

Crushed? Cubed? The Best Way to Chill Your Drinks

The following is adapted from an article by Jeremy Anderberg appearing on the Art of Manliness website.

Summer’s blistering temperatures often spur the craving for a refreshing, ice cold beverage. Whether enjoying whiskey or soda, most people want some chill before drinking. How do you go about it, though? The most common method is obviously ice — but what kind of ice is best? Crushed? Cubed? With whiskey, many drinkers don’t want to dilute the drink, and so opt-out of ice altogether in favor of cooling down their spirit with whiskey stones (usually made of soapstone).

It may seem like a simple choice, but the size of the cube actually determines a lot in regards to temperature and how long the drink will stay cold. So which of these methods is the best? What’s the optimal size for ice cubes? No need to experiment for yourselves — we’ve done the legwork for you. Below are the results of my experiment — be cool and read on.

Supreme Court of Canada rules Mr. Big confessions are presumptively inadmissible, but may be admitted if new evidence rule is satisfied.

mr big
In R. v. Hart, "H’s twin daughters drowned on August 4, 2002. The police immediately suspected that H was responsible for their deaths. However, they lacked the evidence needed to charge him. As a result, two years after the drowning, undercover officers began a “Mr. Big” operation by recruiting H into a fictitious criminal organization. At the time, H was unemployed and socially isolated — he rarely left home and when he did, he was in the company of his wife. After he was recruited to the organization, H worked with the undercover officers and was quickly befriended by them. Over the next four months, H participated in 63 “scenarios” with the undercover officers and was paid more than $15,000 for the work that he did for the organization. As part of that work, H was also sent on several trips across Canada — to Halifax, Montreal, Toronto and Vancouver. H often stayed in hotels and occasionally dined in expensive restaurants during these trips, all at the fictitious organization’s expense. Over time, the undercover officers became H’s best friends and H came to view them as his brothers. According to one of the undercover officers, during this time frame, H made a bald statement in which he confessed to having drowned his daughters.

The operation culminated with a meeting akin to a job interview between H and “Mr. Big”, the man purportedly at the helm of the criminal organization. During their meeting, Mr. Big interrogated H about the death of his daughters, seeking a confession from him. After initially denying responsibility, H confessed to drowning his daughters. Two days later, H went to the scene of the drowning with an undercover officer and explained how he had pushed his daughters into the water. He was arrested shortly thereafter.

At trial, H’s confessions were admitted into evidence. The trial judge denied H’s request for permission to testify with the public excluded from the courtroom. A majority of the Court of Appeal allowed H’s appeal and ordered a new trial. The Court of Appeal unanimously held that the trial judge erred in refusing to allow H to testify outside the presence of the public. A majority of the court also concluded that the Mr. Big operation had breached H’s right to silence under s. 7 of the Charter. The majority excluded two of H’s confessions, the one to Mr. Big and the one to the undercover officer at the scene of the drowning. However, the majority concluded that H’s bald confession was admissible and ordered a new trial. "

The S.C.C. held (5:2) that the appeal is dismissed.

Yogi Was Right – It Is Like Déjà-vu, All Over Again!

He is a three time most valuable player, a Hall of Fame catcher, one of only seven managers in major league baseball history to pilot teams from both leagues in the World Series and the only sporting figure to have a well-known animated character named after him. Yogi Berra is one of baseball's all-time greats.

As accomplished as Yogi was on the field, he is also well-known as a master of the malaprop. Among Yogi's better known sayings is: "It's like déjà-vu, all over again"!

Well, it is like déjà-vu all over again.

In the recent Human Rights Tribunal decision of
Burgess v. College of Massage Therapists of Ontario 2013 HRTO 1960, the Tribunal dealt with a human rights application from Candace Burgess, a massage therapist. Burgess had missed a mandatory two day training program required of examiners who assess candidates seeking certification in Ontario as registered massage therapists. She contacted the College the day before the scheduled training, indicating that she had the flu and was concerned she may not be able to attend. In fact, she did not attend and her contract to act as an examiner was cancelled. Burgess alleged that action was an act of discrimination based on her disability.

At the Tribunal's summary hearing Burgess testified that she initially felt she had the flu but that a few days later, following a throat swab, her physician told her she had strep throat. She argued that the College had a duty to accommodate her disability, while the College for its part contended that Burgess was not suffering from a disability, and in any event the training was a bona fide occupational requirement.

The Tribunal rejected the College's argument that the training was a bona fide requirement and that it would have been unable to accommodate Burgess without undue hardship. However, it dismissed her application as it found that she did not have a disability.

Texting About Drugs On A Company Cellphone? Probably Not A Good Idea

The British Columbia Court of Appeal recently released a decision that will be of interest to employers who find information on a former employee AFTER they have terminated without cause. In this case, after a former employee returned the company cell phone, the employer discovered a series of text messages, many occurring during work hours, relating to purchasing illegal drugs from an employee he supervised as well as other people. The following is a summary of the decision in Van den Boogaard v. Vancouver Pile Driving Ltd. 2014 BCCA 168 (CanLII). Read More...

The Anatomy of Etiquette: How to Be an Old School Gentleman From Head to Toe

The following is adapted from an article by Brett & Kate McKay appearing on the Art of Manliness website.

There are a lot of ways to categorize the rules of etiquette: business, dinner, conversational, and so on. One of my favourite old etiquette books included another, most clever method: by your anatomy. In Esquire Etiquette, which was published in 1954 in Great Britain, there’s a section that breaks down a man’s essential manners by body part. It’s a little long, but a cheeky and very enjoyable read. And while some of the advice is quite old fashioned (not many men today wear a hat they can alternately tip and lift), much of it still remains relevant for those who aspire to be old school gentlemen. Here are the bare essentials of everyday etiquette in everyday social intercourse – the firm skeleton which remains after all the impractical embellishments of other days have been stripped away. Read More...

Mishandled An Employee Dismissal? Try Offering Them A Job Again

Who said you can never go back? While it's a phrase popular in country ballads, it is generally poor advice for an employee invited to return to an employer that just fired them under the same terms. Read More...

Supreme Court of Canada rules right to counsel continues during medical treatment

charter 2
In R. v. Taylor, "The accused was arrested for impaired driving causing bodily harm when he lost control of his vehicle injuring three of his passengers. At the time of his arrest, he was informed of his Charter rights, including his right to counsel, and was asked whether he wanted to call a lawyer. The accused responded that he wanted to speak both to his father and to his lawyer. At no time was the accused given access to a phone while at the scene of the accident. As a precaution and in accordance with normal practice, the accused was taken by ambulance to the hospital for examination. At the hospital, a nurse took five vials of blood from the accused. The police later demanded and obtained a second set of samples of the accused’s blood for investigative purposes. At no point during the accused’s time in hospital did the police attempt to provide him with an opportunity to speak to his lawyer or determine whether such an opportunity was even logistically or medically feasible. The police successfully applied for a warrant to seize the first vials of blood the hospital took from the accused. The trial judge agreed with the Crown that the second set of blood samples were taken in violation of the accused’s s. 10 (b) rights, but found that there was no breach of the accused’s s. 10 (b) rights prior to the first samples being taken. This was based on the trial judge’s assumption that where an accused is awaiting or receiving medical treatment, there is no reasonable opportunity to provide private access to the accused to a telephone to implement his right to instruct counsel. The first set of blood samples were admitted at trial. On the basis of this evidence, the accused was convicted of three counts of impaired driving causing bodily harm. A majority in the Court of Appeal allowed the appeal, finding that the trial judge erred when he concluded that there was no reasonable opportunity to facilitate access to a lawyer prior to the taking of these blood samples. The evidence was excluded, the conviction set aside, and an acquittal entered." The S.C.C. (unanimously) dismissed the appeal. Read More...

What Employers Can Do About Employees’ Inappropriate Social Media Activities

social media
Employers have the right to manage employee conduct that affects the workplace, including the use of social media. This includes the right to make policies and set expectations, and discipline employees for breaching these expectations.

Imagine one of your employees posts one of the following on his or her personal social media account:

  • mocking and disparaging statements about supervisors and the company;
  • derogatory and racist comments about co-workers;
  • information about material company activities before they are formally announced;
  • invitations to drug dealers to come to the workplace to make a sale;
  • interesting aspects of confidential company projects; or "personal details about other individuals in the office.

These examples are all from real cases. The workplace is such a significant part of our daily lives that employees will often post about it on their personal social media accounts. As an employer, what can you do when the post is inappropriate?

Independent Contractor Status: A Different Perspective

As most businesses are now aware, the choice between using independent contractors and employees to provide direct service is complicated and often done poorly. For years, our courts have defined and redefined the tests used to determine who is, in fact, an independent contractor and who is an employee. The two most recognized and influential decisions are 1671122 Ontario Ltd. v. Sagaz Industries Canada Inc. (SCC) and Wiebe Door Services Ltd. v. Canada (Minister of National Revenue) (FCA). These decisions and those which follow clearly confirm that, notwithstanding the parties’ intentions, the essence of the question is whether the person is performing services “as a person in business on his/her own account.” Our courts will typically review and consider:

  1. the level of control exercised by the businesses over the worker’s activities;
  2. whether the worker performs services exclusively or almost exclusively for one business and is “economically dependent”;
  3. whether the worker provides his/her own equipment, expertise and helpers;
  4. the level of integration between the worker’s services and the business;
  5. the degree of financial risk to the worker; and
  6. the worker’s opportunity for profit.

Essentially, our courts look at the day-to-day control, integration and supervision over the worker’s activities and the differences or distinctions between the worker and the persons clearly identified as employees of the business.

One of the obvious reasons why our courts have not been prepared to give paramountcy to the parties’ stated intention or subjective belief of the type of contractual relationship they have or want to have is because the classification, as contractor or employee, has other implications with respect to taxation and social policies such as those under the Canada Pension Plan, Workers’ Compensation, Labour Relations and Employment Insurance legislation. In this context, an objective reality check makes sense and is an important part of our judicial system, protecting both individuals and our tax base.

That said, for years, employers have also been frustrated by employees who choose to consider themselves as independent contractors and take full advantage of that relationship until it no longer suits their purpose. This usually happens at the time of the termination of the independent contractor’s relationship with the business. At that time, the individual has a sudden reversal of opinion that the relationship was never really a true independent contractor relationship but rather was throughout an employment relationship with the concomitant termination benefits afforded to employees.

Recently, however, the Federal Court, in a decision entitled
Rennie v. VIH Helicopters Ltd. has, in certain circumstances, changed the question which must be asked and answered. Rather than asking if the person is in fact an employee, the proper question may be instead, is it fair or appropriate to allow a person to assert retroactively that he/she was an employee? Read More...

Speaking up every. Fu**ing. Time

Elizabeth Spiers wrote the following profile of Shanley Kane, the sole proprietor of the website, Model View Culture. Kane is a reasonably high profile critic of the technology industry marginalizing women and minorities. Kane’s style is controversial. Spiers’ gives an interesting perspective. I do not believe I am equipped to enter this debate. However, it is a discussion well worth considering. The article is lengthy, but worth the effort. I must warn the language is colourful. Read More...

Supreme Court of Canada restricts when police occurrence reports should be disclosed.

police report
In R. v. Quesnelle, Q was charged with sexually assaulting two complainants. Before trial, Q made an application seeking disclosure of certain police occurrence reports which involved a complainant but which were not made in the course of the investigation of the charges against Q. The trial judge ruled that the occurrence reports at issue were “records” under the Mills regime, specifically s. 278.1 of the Criminal Code . As such, Q applied for disclosure of the occurrence reports pursuant to s. 278.3 of the Code. The trial judge dismissed the application and Q was ultimately convicted. The Court of Appeal allowed Q’s appeal on the basis that the police occurrence reports were not “records” under the Mills regime and should have been part of regular Crown disclosure under R. v. Stinchcombe, [1991] 3 S.C.R. 326. The Court of Appeal therefore ordered a new trial.

The S.C.C. (unanimously) held the appeal is allowed, the order for a new trial is set aside, and the conviction is restored with the sentence appeal remitted to the Court of Appeal.

BC Court of Appeal Gives Green Light To Untraditional Restrictive Covenant

emp agr
As many employers know, restrictive covenants are notoriously difficult to enforce because they must be "reasonable" in relation to their subject matter, temporal and geographic scope, as well as unambiguous in their meaning. Every year, restrictive covenants in employment contracts are struck down by courts leaving employers with little or no recourse against departed employees engaging in competition.

Rhebergen v. Creston Veterinary Clinic Ltd., the plaintiff, a newly qualified veterinarian, signed an employment contract in which she agreed to pay a certain amount of money to the defendant if she set up a veterinary practice in the same town as the defendant, or within 25 miles of the defendant's premises, in the first 3 years after the termination of the contract. If she set up a practice within 1 year, she had to pay the defendant $150,000; if within 2 years, $120,000; and if within 3 years, $90,000. The figures were not without foundation; they had been calculated with consideration to the investment made in employing the plaintiff (including mentoring, training and equipment), as well as the impact her competition with the defendant would have on the defendant. Read More...

Afraid Of Being 'Found Out?' Overcome Impostor Syndrome

Margie Warrell wrote the following article for Forbes. While written from the perspective of a woman, her comments certainly also apply to men. It is good advice to follow. Margie Warrell is the best-selling author of Stop Playing Safe (Wiley) and Find Your Courage (McGraw-Hill). Read More...

Employee Ordered To Work Out Notice Period

In negotiating senior executive employment agreements employers often seek lengthy notice periods from employees who wish to resign. The reasons for this usually revolve around the difficulty recruiting a replacement with specialized skills and the need to ensure a smooth transition without competition from the executive. Whether the employee fulfills this obligation, however, has often been considered more of a moral, than a legal, obligation on the basis that it was unlikely an employer could force an employee to continue to provide services against his or her wishes. A recent decision from the Ontario Superior Court of Justice challenges all that. In Blackberry Limited v. Marineau-Mes, 2014 ONSC 1790 (CanLII), Justice T. McEwen has issued a declaration that an executive is obliged to fulfill his contractual obligation to work out a six month notice period. Read More...

Starting Anew

Angela Ahrendts posted the following comments to LinkedIn concerning her transition from CEO at Burberry to Senior Vice President of Apple Retail. It is good advice. Read More...

Tsilhqot'in First Nation granted B.C. title claim in Supreme Court ruling

ab title
In Tsilhqot’in Nation v. British Columbia, the Supreme Court of Canada has granted declaration of aboriginal title to more than 1,700 square kilometres of land in British Columbia to the Tsilhqot'in First Nation, the first time the court has made such a ruling regarding aboriginal land.

The unanimous 8-0 decision released Thursday resolves many important legal questions, such as how to determine aboriginal title and whether provincial laws apply to those lands. It will apply wherever there are outstanding land claims.

The decision, written by Chief Justice Beverley McLachlin, also has implications for future economic or resource development on First Nations lands.

'It only took 150 years, but we look forward to a much brighter future. This without question will establish a solid platform for genuine reconciliation to take place in British Columbia.'- Grand Chief Stewart Phillip, president of Union of B.C. Indian Chiefs

The case focused on the Tsilhqot'in First Nation's claim to aboriginal title over 440,000 hectares of land to the south and west of Williams Lake in the B.C. Interior.​

A B.C. Court of Appeal ruling in 2012 gave the Tsilhqot'in sweeping rights to hunt, trap and trade in its traditional territory. But the Court of Appeal agreed with the federal and provincial governments that the Tsilhqot'in must identify specific sites where its people once lived, rather than assert a claim over a broad area.

The Tsilhqot'in, a collection of six aboriginal bands that include about 3,000 people, argued the court's decision failed to recognize the way its people had lived for centuries.

The court heard the Tsilhqot'in people were "semi-nomadic," with few permanent encampments, even though they saw the area as their own and protected it from outsiders.

Establishes meaning of title

In its decision, Canada's top court agreed that a semi-nomadic tribe can claim land title even if it uses it only some of the time, and set out a three-point test to determine land titles, considering:

• Occupation.
• Continuity of habitation on the land.
• Exclusivity in area.

The court also established what title means, including the right to the benefits associated with the land, and the right to use it, enjoy it and profit from it.

However, the court declared that title is not absolute, meaning economic development can still proceed on land where title is established as long as one of two conditions is met:

• Economic development on land where title is established has the consent of the First Nation.
• Failing that, the government must make the case that development is pressing and substantial, and meet its fiduciary duty to the aboriginal group.

In other words, the decision places a greater burden on governments to justify economic development on aboriginal land.

The court also makes it clear that provincial law still applies to land over which aboriginal title has been declared, subject to constitutional limits.

Absolutely electrifying'

Grand Chief Stewart Phillip, president of the Union of B.C. Indian Chiefs, was with Chief Roger William, who brought the case, and other Tsilhqot'in chiefs when they learned of the top court's decision, and said the mood in the room was "absolutely electrifying."

"We all heard the decision at the same moment, and the room just erupted in cheers and tears. Everybody is absolutely jubilant. It's very emotional," Phillip told CBC News.

"It only took 150 years, but we look forward to a much brighter future. This without question will establish a solid platform for genuine reconciliation to take place in British Columbia.

"I didn't think it would be so definitive," Phillip added. "I was actually prepared for something much less. It's not very often that I'm without words, and I'm quite overwhelmed at the moment."


Koskie presents seminar on Wills and Estates.

Koskie presents seminar on Wills and Estates.

Four Lessons from the Minor Leagues

The following is adapted from an article by Vance Albitz appearing on the Art of Manliness website.

Take away the high salaries of the major league ballplayers and the sold-out crowds that watch them play, and it’s no wonder why many people say that the true passion for baseball lives in the Minor Leagues. Now, go talk to any minor leaguer and he’ll be quick to tell you these two things: 1) he will do just about anything to get out of the minors and into the majors, and 2) there are more levels in the minor leagues to climb than you probably realized (most teams have six minor league affiliates: Rookie Ball, Short Season-A, Low-A, High-A, Double-A, and Triple-A). Of course, except for the very few, the only way to get to the majors is to start from the bottom and work your way up.

This season will be my fifth year in professional baseball, and I’ve experienced five different minor league levels. I’ve played with thousands of different players, and though each individual has a unique personality, the ones who are successful in this game all seem to do a number of similar things. It also happens to be the case that these habits are what gets you ahead not only in baseball and sports, but in any job or situation you may find yourself in.

Here are 4 lessons I’ve learned from those guys who’ve been successful in working their way up the ladder:

Is The Sky Falling? Family Status Discrimination and Shift Shopping

In most jurisdictions in Canada, human rights legislation prohibits discrimination on the basis of "family status." Until recently, few cases were brought alleging discrimination under this branch. However, recent decisions across several jurisdictions have made it clear that employers must be attentive to this ground of discrimination or risk exposing themselves to significant liability.

There are two different ways in which employees have argued that they have been argued against due to family status. One is when they are treated differently due to the identity of specific family members. For example, in B
v Ontario, the applicant was fired because his daughter had accused the applicant's brother and President of the employer of molesting her. The Supreme Court accepted that the applicant was fired because of his biological relationship to his daughter, which was discriminatory. There does not appear to be much controversy surrounding this type of complaint.

However, recent cases have largely dealt with employee requests for accommodation due to their family status. These complaints are similar in structure to requests for accommodation by disabled employees. These family status complaints argue that by complicating employees' abilities to fulfil their obligations to their families, employer policies are discriminating against workers with families.

Such accommodation poses serious challenges to employers attempting to efficiently schedule their workforces. It adds another factor that must be taken into account in organizing the workforce. However, unlike what is often the case in disability-related accommodations, in many workplaces the majority of employees may be subject to these familial pressures.

Until recently, few reported decisions dealt with such demands for accommodation. Beginning approximately ten years ago, the volume of cases dealing with this type of complaint has increased. Unfortunately, courts have not reached a consensus on how to deal with them. Three tests have emerged, with their roots in cases in British Columbia, Ontario and the Federal jurisdiction. Each test has used different and vague definitions for what exactly are employees' rights and employers' obligations when it comes to family status.

Taking A Page From The Globe And Mail: How To Enforce Confidentiality Of Settlements

When employers negotiate a settlement with a union providing for payment to an employee, there is often a concern with respect to confidentiality of the settlement. In most cases, the employer wants the settlement terms to be confidential. One of the reasons for a confidentiality agreement is to ensure that the settlement does not encourage claims by other employees who may think that the employer will make substantial payments just to get rid of a grievance. Enforcement of the confidentiality provisions in settlements is critical; there's not much point in having a confidentiality provision if there is no effective way to enforce it. The arbitration decision in Globe and Mail v. Jan Wong shows that there is a very effective way to keep settlements with a union confidential. Read More...

You Don’t Have to Be Your Dad: How to Become Your Family’s Transitional Character

The following is adapted from an article by Brett and Kate McKay that appears in the Art of Manliness website.

Research strongly suggests that marriage and divorce patterns get passed along from generation to generation. If you come from a family of divorce, your attitude about marriage is less likely to be positive, and if you do get married, the chances your marriage will end in divorce are statistically higher than those consisting of partners from intact families. Also, research shows that people who were abused by their parents as children are much more likely to abuse their own children. It is sort of a fulfillment of the biblical idea that curses persist through many generations.

But those studies only tell half the story.

Other research suggests that you’re not destined for the divorce courts and multiple Christmases just because you or your spouse comes from a divorced family.

In fact, the research shows that individuals can consciously choose to break the cycle of unhappy home life by becoming what marriage and family scholar Carlfred Broderick calls a “transitional character.” A transitional character, according to Broderick, is:

A person, who, in a single generation, changes the entire course of a lineage. The changes might be for good or ill, but the most noteworthy examples are those individuals who grow up in an abusive, emotionally destructive environment and who somehow find a way to metabolize the poison and refuse to pass it on to their children. They break the mold. They refute the observation that abused children become abusive parents, that the children of alcoholics become alcoholic adults, that ‘the sins of the fathers are visited upon the heads of children to the third and fourth generation.’ Their contribution to humanity is to filter the destructiveness out of their own lineage so that the generations downstream will have a supportive foundation upon which to build productive lives.

With that said, becoming a transitional character is often easier said than done. You’re fighting against the stream of deeply ingrained patterns that you picked up in childhood and throughout your formative years. Becoming a transitional character requires you to completely transform how you see and respond to your world and environment. It’s a difficult task fraught with missteps and backsliding.

But it can be done.

Below we provide some research-backed suggestions on how to forge a new chain in your family history by becoming a transitional character:

Scents-ible Court Ruling Highlights Employer And Employee Responsibilities In Workplace Accommodation

Employers have a duty to consider and accommodate the disabilities and medical conditions of their employees in the course of their employment, but as Robinson v Edmonton (City) demonstrates, this process is not one-sided: employees also have a responsibility to engage in the accommodation process. Read More...

Reasonable Notice And The Older Worker

There was once an expectation that workers would retire by age 65. That expectation is changing. For a variety of reasons, many workers now want or expect to work later in life. As it can no longer be assumed that employees will retire at a certain age, employers will encounter issues about dismissing older and long-serving employees. Read More...

Employee Discount Policies: Zero Tolerance

A recent Nova Scotia Labour Board decision considered whether an employee with 11 years' service was dismissed for cause when he used an employee discount policy for a "friend", contrary to company policy. The Board found a violation and that dismissal for cause was the correct course of action. If your company provides employee discount policies to employees, this is a decision you may want to learn more about. Read More...

Have A Workplace Harassment Policy? Why It’s Not Enough

sex harass
Harassment policies are a common aspect of workplace administration for most human resource practitioners. However, establishing a harassment policy is only part of what employers should do to address harassment in the workplace. The key to protecting against potentially costly claims for harassment is to implement and follow proper policies and investigation procedures. Read More...

Duty To Mitigate Damages: Does That Include Returning To The Employ Of Your Prior Employer?

When an employee is terminated from [his/her] employment, whether it be by constructive dismissal or otherwise, the employee has a duty to mitigate his/her damages by seeking alternative employment. However, does an employee have a duty to accept employment with the very same employer who terminated his/her employment in order to fulfill the duty to mitigate his/her damages? This is a question that many terminated employees struggle with.

Chevalier v. Active Tire and Auto Centre Inc., the Ontario Court of Appeal recently considered an appeal from a trial decision wherein the trial judge found that the terminated employee had failed to mitigate his damages when he declined to return to work for his former employer and, therefore, he was not entitled to damages. Read More...

How a Man Drinks Responsibly: Ask These 3 Questions

The following is adapted from an article appearing on the Art of Manliness website.

As adults, . . . we are encouraged to become close friends with alcohol. It is a commonly held belief that alcohol should be a necessary part of our dining out experiences, not to mention any celebratory event.

It is common to link a [19th] birthday with celebrating the legal right to drink. What’s a bachelor party without a hangover the next day? Or a . . . dinner without a bottle of wine? What’s a Super Bowl party without . . . beer?

But perhaps it’s wiser to take a closer look at our overall acceptance of alcohol. Maybe we need to be more reluctant toward imbibing. More skeptical. More wary.

Consider three questions everyone should ask:

Daughter’s Facebook Post Causes Father To Lose $80,000 Settlement From Age Discrimination Lawsuit


A recent decision from the Florida Third District Court of Appeal provides some valuable guidance for Canadian employers wishing to keep settlement agreements strictly confidential. Patrick Snay (Snay) had settled an age discrimination lawsuit with his former employer Gulliver Preparatory School (the School). The School agreed to pay him $80,000, but the settlement agreement contained the following confidentiality clause:

...Confidentiality...[T]he plaintiff shall not either directly or indirectly, disclose, discuss or communicate to any entity or person, except his attorneys or other professional advisors or spouse any information whatsoever regarding the existence or terms of this Agreement...A breach...will result in disgorgement of the Plaintiffs portion of the settlement Payments.

Snay was probably happy with the settlement and thinking about ways to spend the $80,000. Perhaps some of it was even earmarked for his daughter's college fund. Unfortunately his daughter had other plans. Before he received the $80,000, and in breach of the confidentiality clause, Snay told his daughter about the settlement. She then immediately posted to her roughly 1,200 Facebook friends:

Mama and Papa Snay won the case against Gulliver...Gulliver is now officially paying for my vacation to Europe this summer. SUCK IT.

The School found out about the Facebook boast and was obviously displeased. It refused to pay Snay any of the $80,000. The Florida Appeals Court ruled that it was justified in doing so, stating:

Snay violated the agreement by doing exactly what he had promised not to...His daughter then did precisely what the confidentiality agreement was designed to prevent.

Fixed-Term Employment Contracts: Are They Worth The Risk?

emp agr
Employers often hire employees pursuant to fixed-term contracts in order to avoid common law reasonable notice obligations and other perceived liabilities. However, this practice can unnecessarily expose employers to more costly legal liabilities that can be avoided through the use of indefinite-term contracts containing early termination provisions setting out minimal notice of termination. Read More...

10 Ways to Share Your Accomplishments Without Sounding like a Jerk

The following article by John Corcoran appears in the Art of Manliness website.

You may be wondering . . . why we should even care about talking about ourselves. Well, as Forbes wrote last year, today’s landscape makes it much more difficult to get your message across:

“The average American hears or reads 100,000 words every single day. Studies dating back decades have shown that 80% of what we learn is gone within 24 hours. That makes it much less likely that your message is the one that sticks.”

By talking openly about our accomplishments, we have a greater chance of being remembered and not forgotten.

Communication consultant Peggy Klaus says the fear of coming off sounding like Gordon Gecko denies professionals the opportunity to explain to clients the value they provide. The author of Brag: How to Toot Your Own Horn Without Blowing It, Klaus says that the entire notion of self-promotion is excruciatingly difficult for many professionals to embrace, even if they know it is critical for their own survival. “So ingrained are the myths about self-promotion, so repelled are we by obnoxious braggers, many people simply avoid talking about themselves,” writes Klaus.

Here are a few additional reasons why you should talk about your accomplishments:

  • Great stories make life interesting. Tom’s background is too interesting to keep locked up in a box. It would be a shame and a lost opportunity if he didn’t mention his backstory at all because of social norms against bragging. These types of stories make life more enjoyable.
  • Being too humble can cost you. Not talking about your accomplishments can hit you in the pocketbook. “It’s those who visibly take credit for accomplishments who are rewarded with promotions and gem assignments,” writes Klaus. As our economy has resulted in less job stability, self-promotion has become more important. Even if you aren’t an entrepreneur, says Klaus, you need to think like one and start talking up your most valuable product: you.
  • Your stories reveal the true you. When we share stories about our accomplishments, we reveal our true selves. It is only through revealing our true selves that we break through superficial small talk and make real connections with people, form genuine friendships, and deepen our relationships.

Here are 10 ways you can share your most interesting experiences and stories, without sounding like you are bragging:

Facts Must Uphold Allegations Of Racism For Finding Of Constructive Dismissal

In General Motors of Canada Limited v. Yohann Johnson, the Ontario Court of Appeal provided helpful guidance to employers while overturning a trial judge's decision which found that Yohann Johnson had been constructively dismissed due to racism and a poisoned work environment. Read More...

Supreme Court of Canada clarifies legal framework for changes to Senate.

In Reference Concerning Reform of the Senate, the Governor in Council referred the following questions to the Court:

1. In relation to each of the following proposed limits to the tenure of Senators, is it within the legislative authority of the Parliament of Canada, acting pursuant to section 44 of the Constitution Act,1982, to make amendments to section 29 of the Constitution Act, 1867 providing for

(a) a fixed term of nine years for Senators, as set out in clause 5 of Bill C-7, the Senate Reform Act;

(b) a fixed term of ten years or more for Senators;

(c) a fixed term of eight years or less for Senators;

(d) a fixed term of the life of two or three Parliaments for Senators;

(e) a renewable term for Senators, as set out in clause 2 of Bill S-4, Constitution Act, 2006 (Senate tenure);

(f) limits to the terms for Senators appointed after October 14, 2008 as set out in subclause 4(1) of Bill C-7, the Senate Reform Act; and

(g) retrospective limits to the terms for Senators appointed before October 14, 2008?

2. Is it within the legislative authority of the Parliament of Canada, acting pursuant to section 91 of theConstitution Act, 1867, or section 44 of the Constitution Act, 1982, to enact legislation that provides a means of consulting the population of each province and territory as to its preferences for potential nominees for appointment to the Senate pursuant to a national process as was set out in Bill C-20, the Senate Appointment Consultations Act?

3. Is it within the legislative authority of the Parliament of Canada, acting pursuant to section 91 of theConstitution Act, 1867, or section 44 of the Constitution Act, 1982, to establish a framework setting out a basis for provincial and territorial legislatures to enact legislation to consult their population as to their preferences for potential nominees for appointment to the Senate as set out in the schedule to Bill C-7, the Senate Reform Act?

4. Is it within the legislative authority of the Parliament of Canada, acting pursuant to section 44 of theConstitution Act, 1982, to repeal subsections 23(3) and (4) of the Constitution Act, 1867 regarding property qualifications for Senators?

5. Can an amendment to the Constitution of Canada to abolish the Senate be accomplished by the general amending procedure set out in section 38 of the Constitution Act, 1982, by one of the following methods:

(a) by inserting a separate provision stating that the Senate is to be abolished as of a certain date, as an amendment to the Constitution Act, 1867 or as a separate provision that is outside of theConstitution Acts, 1867 to 1982 but that is still part of the Constitution of Canada;

(b) by amending or repealing some or all of the references to the Senate in the Constitution of Canada; or

(c) by abolishing the powers of the Senate and eliminating the representation of provinces pursuant to paragraphs 42(1)(b) and (c) of the Constitution Act, 1982?

6. If the general amending procedure set out in section 38 of the Constitution Act, 1982 is not sufficient to abolish the Senate, does the unanimous consent procedure set out in section 41 of theConstitution Act, 1982 apply?

Koskie presents seminar on Rights and Obligations on Arrest.

Koskie presents seminar on rights and obligations on arrest. Read More...

Are Your Independent Contractors "Dependent"?

The following article was written by Michael D. A. Ford, Q.C. of Davis LLP. Read More...

F*ck Everything, We're Doing Five Blades

You can copy and follow or you can innovate. The following article was written on February 18, 2004, by James M. Kilts, then CEO and President of The Gillette Company. He makes the case for the latter in an effective, albeit colourful, prose. It is worthy of note that Mr. Kilts negotiated the sale of The Gillette Company to Procter & Gamble for US$57 billion. Press investigators estimate that he stood to gain more than $165 million personally in the purchase. Mr. Kilts is currently a partner at Centerview Partners, an investment banking and private equity firm based in New York City. Read More...

Disability And Other Leaves Of Absence: Employee Status At Time Of Termination

The following article was written by Clarence Bennet and Lara MacDougall of Stewart McKelvey. While it is written from an employer perspective, it also provides some useful information for employees. Read More...

Alberta Court finds employer has no duty to inquire further into disclosed disability.

A recent Alberta Court of Queen's Bench decision confirmed an employee's obligation to prove an employer knew (or ought to have known) about his or her disability in order to establish discriminatory treatment. Read More...

Amendments to Part III of Canada Labour Code came into effect on April 1, 2014.

Part III of the Canada Labour Code (the Code) was first enacted in 1965. It establishes minimum working conditions for employees and employers under federal jurisdiction (e.g. banking, telecommunications, and transportation across borders). These standards of employment include provisions on hours of work, minimum wages, general holidays, annual vacations, notice of termination, severance pay, and statutory leave (maternity, parental, compassionate care, bereavement and sick leave). It also includes provisions designated to assist employees in recovering unpaid wages and seeking recourse in case of unjust dismissal (e.g. investigation, inspection, adjudication, and prosecution).

Part III of the Code has been amended to include a number of significant changes. The following is the Federal Government’s
summary of same.

Federal Court summarizes Canada Labour Code dismissal provisions.

In Atomic Energy of Canada Limited v. Wilson, the Federal Court of Canada gave the following succinct summary of the regime set out in the Canada Labour Code for dealing with employment dismissals. Read More...

Everything You Hate About Advertising in One Fake Video That's Almost Too Real

Every once in a while, I come across something on the web that I just cannot resist adding to my blog. The following piece is found on the Adweek web site. Read More...

Does what women wear to work matter?

The following article by Peggy Drexler appears in CNN Opinion. Peggy Drexler is the author of "Our Fathers, Ourselves: Daughters, Fathers, and the Changing American Family" and "Raising Boys Without Men." She is an assistant professor of psychology at Weill Cornell Medical College of Cornell University and a former gender scholar at Stanford University. Read More...

How to Deal with a Job You Don’t Like

The following article appears in the Art of Manliness website. Read More...

Correctness Is "fashionable," but In a bad way: Supreme Court of Canada broadens scope for administrative tribunals.

The Supreme Court of Canada has released what may be the most important administrative law appeal of the year in McLean v. British Columbia (Securities Commission), reaffirming the deference that administrative tribunals are owed when interpreting their "home" or closely related statutes and expressly seeking – as always, it seems – to foster greater "predictability and clarity". Read More...

Supreme Court of Canada clarifies elements of offence of uttering threats.

In R. v. McRae, the Supreme Court of Canada ruled that it was not necessary to prove threats were conveyed or that accused intended they be conveyed. Read More...

10 Ways to Help a Grieving Friend

The following articleentitled “How to Help Someone in Sorrow” by Howard Whitmanappears in the Art of Manliness website. It is a helpful read. Read More...

"Everything I know about business in one minute."

The following article was written by Michael Bierut for the Design Observer Group “Observatory.” He reviews a presentation given by the late Bill Drenttel. It is great, concise advice. Read More...

"You Can’t Have Your Cake and Eat It (Part 2)": An Update On Mitigation and Employment Contracts

emp agr
This following is a reprint of an article by Martin J. Thompson and Kyle Lambert of McMillan LLP.Steve Brown of Crowe Soberman LLP. Read More...

Hitting 60 And Cashing In?

It is a new year, and some of you may have just celebrated your 60th birthday or soon will be. With the excitement of this life milestone comes the option for you to begin receiving your pension benefits. But before you blow out the candles, and start cashing in, there are some important things you should know. Read More...

Koskie is Guest Lecturer at SIAST

Koskie gives lecture on “Meeting Legal Challenges.”

Buffett's annual letter: What you can learn from my real estate investments

The following is a reprint of an article in CNNMoney. It is an excerpt of Warren Buffett’s upcoming shareholder letter. My view is that when Mr. Buffett speaks, we should all listen. Read More...

Top Ten Must-Haves For Employment Agreements

emp agr
Employment agreements are now an essential tool for employers. A written employment agreement allows the employer and the employee to negotiate terms at a time when they are most optimistic about their relationship and, therefore, more likely to be fair with one another. The written agreement will provide answers to questions that often plague employment relationships. However, badly written employment agreements can cause more harm than good. To keep you focused on your agreements, here are the Top Ten items you must have. Read More...

BC Human Rights Decision Sets New High For Damages For Injury To Dignity

The British Columbia Human Rights Code, like human rights legislation in other provinces, prescribes a number of remedies once the British Columbia Human Rights Tribunal ("Tribunal") determines that a human rights violation has occurred. Besides authorizing the Tribunal to make declaratory judgments (such as reinstatement of employment or orders to cease the discriminatory behaviour), the Tribunal also has the ability to award damages to claimants for wages lost, expenses incurred, and for injury to dignity, feelings and self-respect (or for any of them).

In December 2013, the Tribunal released its decision
Kelly v. University of British Columbia (No. 4), in which it awarded $75,000 for injury to dignity, feelings and self-respect - the highest amount of damages ever awarded in this category by far. Further, because of the facts and amount of damages awarded, the Kelly decision will likely affect how human rights lawyers' weigh the risk and potential amount of damages that could be awarded for injury to dignity in the future. Read More...

Supreme Court of Canada rules there is no breach of statutory privacy to post photos of workers during strikes.

video camera
“During a lawful strike lasting 305 days, both the Union and the employer video‑taped and photographed individuals crossing the picketline. The Union posted signs in the area of the picketing stating that images of persons crossing the picketline might be placed on a website. Several individuals who were recorded crossing the picketline filed complaints with the Alberta Information and Privacy Commissioner. The Commissioner appointed an Adjudicator to decide whether the Union had contravened the Personal Information Protection Act(PIPA). The Adjudicator concluded that the Union’s collection, use and disclosure of the information was not authorized by PIPA. On judicial review, PIPA was found to violate the Union’s rights under s. 2(b) of theCharter. The Court of Appeal agreed and granted the Union a constitutional exemption from the application of PIPA. ” In Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers, Local 401, the S.C.C. (9:0) held that the appeal is "substantially dismissed.” Read More...

When is an Illness Not a Disability?

In a recent Ontario Human Rights Tribunal decision, the Tribunal determined that a diagnosis of strep throat was insufficient to invoke the protection of the Ontario Human Rights Code. Read More...

Warren Buffett on “Mr. Market”

The following “Letter to Shareholders” appeared in the 1987 Berkshire Hathaway Annual Report. While I am not much of an investor, Mr. Buffett’s comments help provide a perspective when reading about how various businesses perform in relation to market predictions. Read More...

OODA Loop: The Best Business Tool You've Never Heard Of

ooda 9
The following article appears on the Me2 Solutions web site. I do not know anything about Me2 Solutions, but they provide an excellent overview of the OODA Loop. It may seem like a long read, but its usefulness in business, and even litigation, will quickly become evident. Read More...


Apple v Google
Horace Dediu wrote the following article comparing how Apple and Google are perceived. Does this reflect what ails other businesses we know of? Read More...

Koskie Gets Waghorn Caricature

koskie cropped
It has been said the ultimate prize is a Kerry Waghorn original caricature. I have the distinct pleasure to now possess one. Thank you Kerry. Read More...

A New Year’s Message

The following blog was written by Michael Lopp. His message is simple, spot on and well stated. In essence, he challenges us to decide whether to create or consume? He says that when we choose to create, we stop swimming in other peoples’ moments and choose to take the time to build our own. Read More...