For the London Free Press – March 22, 2010

Read this on Canoe

Liability: Courts construe limitations clauses as narrowly as they possibly can.

The Supreme Court of Canada recently released a landmark decision regarding the applicability of clauses that limit liability under a contract. Tercon Contractors Ltd. v. British Columbia (Ministry of Transportation and Highways) dealt with this issue in the context of a tender for highway construction.

The province of British Columbia issued a request for proposal (“RFP”) for the construction of a highway.

The RFP contained this exclusion of liability clause: “Except as expressly and specifically permitted in these instructions to proponents, no proponent shall have any claim for any compensation of any kind whatsoever, as a result of participating in this RFP, and by submitting a proposal each proponent shall be deemed to have agreed that it has no claim”.

The province of British Columbia selected the lowest bid. That bid was, however, submitted in conjunction with an ineligible bidder as a result of an agreement to undertake the work as a joint venture.

Tercon Contractors Ltd., the proponent with the second lowest bid, brought an action against the province of British Columbia on the basis that the province had breached its contract with Tercon by considering and accepting a bid from an ineligible bidder.

At the trial in 2006, the British Columbia Supreme Court held the Ministry of Transportation and Highways liable for over $3 million in damages for breach of contract and stated that the exclusion clause did not apply. In 2007, the Court of Appeal set aside the decision of the British Columbia Supreme Court and held that the exclusion clause was clear and unambiguous and barred recovery for the breaches.

In a 5-4 decision, the Supreme Court of Canada restored the decision of the British Columbia Supreme Court and overturned the decision of the Court of Appeal. In its reasons, the Supreme Court of Canada stated that the concept of fundamental breach should be “laid to rest” and relied on a strict interpretation of the limitation of liability clause.

The Supreme Court of Canada ultimately held that the exclusion clause did not apply in the Tercon case as the clause applied only to claims that arose “as a result of participating” in the request for proposal process — it did not apply to claims that arose as a result of the province acting unfairly and allowing ineligible bidders to participate in the process.

The court noted that “clear language is necessary to exclude liability for breach of such a basic requirement of the tendering process, particularly in the case of public procurement”.

The dissenting minority was of the opinion that the exclusion clause was clear and unambiguous and applied to this case.

Frankly, I think most lawyers would agree with the dissent that the damages were “as a result of participating in the RFP”.

While the courts talk about adopting contractual terms, it seems clear that they will construe limitation clauses as narrowly as they possibly can.

Unfortunately this approach does not lead to commercial certainty, and makes it very difficult to draft effective limitation clauses.

The iPad will start shipping in a few weeks.  While it is perhaps the first to market, the standard to which all others will be compared, and will no doubt sell in large numbers - it is by no means the only option.   I’ve read estimates of 50 to 100 similar devices in the works. 

More news on the HP slate is on engadget today.   From what I have seen so far, I would prefer that – or something similar based on the Windows Phone 7 OS (I have not seen anything about that – but its a logical way to go) to the iPad.

IMHO these devices are revolutionary and will fundamentally change the way we consume what is now traditional print media.   They will be pervasive within fairly short order.   Why has this not been done before?   Its a matter of getting a device with sufficient computing power, battery life, light weight, and useability - at a low enough  price point.

This will become far more than just virtually flipping newspaper or magazine pages.  See this Wired video for what we might expect.

And I suspect we will find them useful for business, as well as personal use.

I’m holding off for a bit to see how the various devices perform -  hopefully I will have one by the end of the year.

UPDATE:  Here’s an eWeek article I just found that delves into this in more detail.

Beth’s Song is performed by the Amabile Boys and Men’s choir, along with a soloist from the Amabile Girls and Women’s choirs.  The song was written as a companion to the book “Sing Me to Sleep”.   On the iTunes preview we only hear the soloist – the 85 male voices (my son being one of them) start about half way through.  I’ve heard the song performed live - its very good – IMHO it should be on radio playlists.

“Sing Me to Sleep” is a new novel published by PENGUIN BOOKS , featuring the Amabile Boys and Men’s Choirs.  The trailer announcement for the book, including a portion of the song is on YouTube.   Details about the book are here on the author’s web site.  The reviews on Amazon have been very positive.

And while you are on iTunes, check out the other Amabile songs.

That’s the title of my Slaw post for today.   It reads as follows.

The quality of Canadian internet access continues to decline in comparison to that of other countries.  See, for example, previous Slaw posts here and here.   This while high speed access is more increasingly considered crucial for the economy,  competitiveness and innovation – even to the extent that many feel that the internet is a fundamental human right.  

The Canadian government talked about a digital strategy in its recent throne speech, but so far we don’t know what that translates to.

Contrast that with what is happening in the US.   The US FCC just announced an aggressive plan to upgrade internet access and speed.  The FCC says “Like electricity a century ago, broadband is a foundation for economic growth, job creation, global competitiveness and a better way of life.”

And Google plans to build trial locations to bring fiber to the home in at least 1 US city with speeds of 1 gigabit per second.  (That’s over 200 times faster than we get at home now.)   Google draws parallels to the space race.

University of Waterloo president David Johnston is quoted in a CBC article saying:   

Microsoft has released further details about Windows 7 Phone – mostly from the developer side – at the Mix10 conference.   It continues to get a positive reception from the tech press.   For more detail take a look at various posts such as these on Engadget and Wired Gadget Lab.

So I have 2 questions.  

These phones will be available before the end of the year (assuming Canadian cell cos debut them at the same time).  By then I’ll only be 15 months into a 3 year contract on my phone.  So will there be any deals to be had for an early upgrade, or is my choice either pay a huge penalty (not happening) or wait another year and a half?   3 year terms are nasty.

This OS seems like a natural for an iPad competitor.  Windows 7 based versions are coming – how about a Windows Phone 7 based one?

For the London Free Press – March 15, 2010

Read this on Canoe

Canada’s privacy commissioner calls for modernized laws to address evolution of cyberspace

Last month, Canada’s privacy commissioner, Jennifer Stoddart, gave an address titled “The Future of Privacy Regulation” at the 11th annual Privacy and Security Conference in Victoria.

Describing herself as the “village elder” in the privacy community, her speech detailed many of the changes that have occurred in cyberspace over the last decade.

The advent of Facebook, Twitter, Flickr, YouTube, Google Street View, and iPods all occurred during the last seven years of her tenure.

She also identified “real-time globalization” and “instantaneous worldwide flow of data” as changing the terrain of privacy regulation.

These developments have resulted in significant challenges for administering th e regulations that protect the privacy of Canadians’ personal information.

“In light of these colossal changes over the past decade alone, it would be foolish to try to predict what the next decade will hold,” she said.

“But what we can say for certain is that the regulatory framework we have in place now for the protection of privacy and personal information is being sorely tested.

“We have bent and stretched it in many different ways,” she added. “And if we don’t want it to snap, we need to figure out how to fortify it for the decade ahead.”

Stoddart recognized that the Privacy Act, which governs the federal public sector, and the Personal Information and Electronic Documents Act, which governs the private sector, need to be modernized so we are properly equipped to meet future changes.

Stoddart noted the technology we now use has created a previously unheard-of market for businesses following consumer behaviour. This creates difficulties for regulators in terms of what information the average consumer knowingly consents to share.

The challenge of new technology is compounded by the increasingly global scope of data flows across borderless virtual communities. When our personal information ends up in countries lacking strong privacy regulation, Canadians may not have the privacy rights they enjoy in Canada.

Despite the challenges, Stoddart said Canada’s business community works closely with privacy regulators to ensure they comply with the rules.

Canada is also seeking to work more closely with other countries to create common rules and standards and to ensure uniform enforcement.

Efforts underway include the Spanish Initiative, a draft international privacy standard put forward by an international working group and endorsed in Madrid, which Stoddart calls a “valuable first step towards a harmonized approach to data protection.”

The Asia-Pacific Economic Co-operation (APEC) group as been working to protect information flowing into Asian countries. APEC is developing cross-border privacy rules to govern international information flow and facilitate co-operation between national authorities.

While acknowledging that “a single, enforceable global standard for privacy won’t materialize overnight — if ever,” Stoddart stressed that Canada must continue to actively pursue standardized regulations to protect Canadians’ privacy rights.

The response to the policytool that rTraction and I collaborated on has been overwhelming.  In its first week,  over 10,000 people have visited the sites and 1500 different companies have taken the first steps in creating a social media policy.  See rTraction’s post for more details of the response.

And the only thing we did to publicize it was a couple of blog posts and tweets, and a few emails to individuals we thought might be interested.

Sunday is March 14th, or 3.14, and thus Pi day.   Take a look at piday.org , or Wikipedia for more details.

There has been a lot of controversy and debate over whether too many things are patentable, especially in the software and business method areas. 

Many thought the Amazon 1-click patent, which was under review, should not be valid.  The USPTO has, however, confirmed the patent.

Mike Masnick of Techdirt sums it up nicely, with links to further detail.  Mike says:

US Patent Office Decides That One Click Really Is Patentable

from the wow dept

Ladies and gentlemen, we now have confirmation that the USPTO is a joke. After years of back and forth, it has decided, once again, that Amazon’s one-click patent is perfectly valid. This, despite tons of prior art, and basic common sense. We were just wondering what was taking so long for the USPTO to reject the patent. But, of course, it seemed like the USPTO was willing to go out of its way to help keep this patent around. Of course, as some are pointing out, the end result of this patent surviving is that it may be used as example number one for patent reform.

I’ve written before about how the three strikes law that is in force in France, and is being contemplated in other countries, is fundamentally wrong.

Take a look at this short video interview from author Cory Doctorow that puts it in perspective.