“Ontario vowed to overhaul its pediatric forensic pathology system yesterday following a highly critical report citing the ‘woefully inadequate’ training of pathologist Dr. Charles Smith and the inaction of his supervisors in the coroner’s office who ‘actively protected’ him despite ‘warning signs’ about errors he made that led to wrongful prosecutions.” A 1,000-page report by Justice Stephen Goudge found that Smith’s testimony blaming child deaths on family members resulted in numerous wrongful prosecutions and erroneous convictions, including that of William Mullins-Johnson of Sault Ste. Marie, who “spent 12 years in prison after he was convicted of murdering his four-year-old niece. The conviction was quashed last year after the expert evidence was dismissed as unreliable.” (Jordana Huber, “Inquiry blasts Ontario pathologist”, Ottawa Citizen, Oct. 2; CBC; ABA Journal; Goudge inquiry website and report).

Thanks to Baylen Linnekin for his guestblogging contributions last week. Be sure to check out his handsomely executed “irreverent food blog”, Crispy on the Outside, whose recent topics include bacon thefts in Lancashire, a new California menu-labeling law, and Quebec’s recent legalization of yellow margarine; of particular interest are his food law and banned categories.

One way that can happen to you is to be traveling the Canadian side of the Niagara River on your Sea-Doo jet ski, get caught in the rapids and swept over to the U.S. side. Jason Haist of Toronto was knocked unconscious and nearly drowned in the process, but his legal troubles were only beginning, as U.S. Border Patrol agents filed charges against him. They also arrested his cousin Edward, who tried to help him, for not reporting immediately on entry. After a press outcry, the two were released from their jail cell and returned to Canada. (Toronto Star, Aug. 25; Inside Toronto, Aug. 26).

P.S. Commenter “Buffalo” says the facts are more complicated than would appear from the Canadian press coverage and that “before the accident/injury, there was reportedly evidence that they landed on the US side without reporting in”.

Canada: “The family of Tim McLean is suing Greyhound, the RCMP and the man suspected of committing the gruesome killing of the 22-year-old man aboard a bus in rural Manitoba in July.” (CBC, Sept. 2).

• Lawyers’ contingency fee is temptation to ethical corner-cutting in consumer debt collection, too [Miami Daily Business Review, Popehat; Orlando's Palmer Reifler & Associates, mass mailing of demand letters to accused shoplifters]
• Discussion continues on loser-pays with me and many others at NewTalk, and note comment from Ontario lawyer [through today]
• Age bias suit by Hollywood writers gains traction. Next, actors? [Ink Slingers via Class Action Blawg weekly review]
• Class action against Quebec lottery on behalf of problem gamblers finally set for trial [CP/Yahoo, Lee Distad via Class Action Blawg, earlier]
• Should we and other commentators avoid mentioning litigants’ real names so as not to intrude on their Google legacy? [comments at Ron Miller/Md. Injury]
• California lawmakers OK feel-good “Donda West Law” but it won’t do much to keep impulsive clients from rushing into plastic surgery [GruntDoc, Cameron Turner/EURWeb, Truth in Cosmetic Surgery Blog]
• Probably not a swift career move for lawyer to tell bar disciplinary panel “Go to hell.” [ABA Journal]
• Class action forces HUD to allocate more to some Indian recipients, so it cuts other programs, bad news for North Carolina’s Lumbee tribe [Fayetteville, N.C. Observer courtesy US Chamber]
• Environmental authorities won’t press charges against man who shot protected rattlesnake that had just attacked and bitten him [eight years ago on Overlawyered]

Continuing our theme, Frances Woodard has now lodged a complaint against the public transit authority in Canada’s capital city for barring the diminutive, weasel-like predator whose companionship, according to her psychiatrist, helps her stave off panic attacks. “A letter from OC Transpo customer relations sent in May said the decision was a result of fears about allergic reactions and phobias from other passengers and reactions from other animals, such as guide dogs.” (CBC News, Jul. 23). Monday’s post on the “service monkey” lawsuit from Springfield, Mo. is here.

But Quebec courts have ruled that’s no reason Jean-Alix Miguel should lose his job as a teacher at a Montreal vocational school. Miguel spent seven years in prison for the murder. (Julia Kilpatrick, “Law says convicted killers can teach and practise law — but experts disagree”, Canwest/Victoria (B.C.) Times Colonist, Jul. 13)(via Wingless).

• Texas probate and estate lawyers seldom prosecuted when they steal funds, clients told they should just sue to get it back [Austin American-Statesman investigation]
• About a third of the way down the center strip, then just a bit to the right, you’ll find us on this much-linked map of the campaign season’s most influential websites [Presidential Watch '08]
• Given the enormous liability exposure, would a doctor rationally want a major celebrity as a client? [Scalpel or Sword via KevinMD]
• The loser-pays difference: Canadian franchisees pursue failed class-action claim against sandwich shop Quiznos, judge orders them to pay costs of more than C$200,000 [BizOp via ClassActionBlawg]
• Annals of extreme incivility: judge condemns “heartless attack” at deposition on opposing lawyer’s pin honoring son killed in Iraq [Fulton County Daily Report]
• You keep an open wi-fi connection at home and your neighbor uses it to download music improperly. Are you an infringer too? [Doctorow via Coleman]
• As you’ve probably heard if you read blogs (but maybe not otherwise), one Canadian “human rights” tribunal has dropped action against Mark Steyn and Maclean’s; another still pursuing case [SteynOnline]
• Prison-overcrowding lawsuit could lead to early release of 27,000 California inmates [TalkLeft]
• “He absolutely would’ve gotten this DOJ job but for the anti-liberal bias … and he can’t land any other jobs?” [commenter KenVee on lawsuit over politicized Department of Justice Honors/Intern programs, Kerr @ Volokh, background]

The father wouldn’t let her go on a school trip because he said she’d been acting up, including using a friend’s account to post inappropriate pictures on a dating site. “But [Quebec Superior Court] Justice Suzanne Tessier, who was presiding over the case, found the punishment too severe.” The mother, who is divorced from the father, was supporting the girl; the school’s policy was that both parents’ permission was required for such trips. According to a lawyer involved in the case, the father has legal custody but the girl has been living with her mother for the past month. (AFP/FoxNews.com, Globe and Mail, Eugene Volokh). Plus: Token Conservative suggests a new writ of “habeas bratus”.

• Educator acquitted on charges of roughness toward special ed student sues Teacher Smackdown website over anonymous comments criticizing her [NW Arkansas Morning News, Citizen Media Law Project, House of Eratosthenes]
• Lorain County, Ohio judge who struck down state’s death penalty has Che Guevara poster in his office, though Guevara wasn’t exactly an opponent of killing [USA Today]
• Privatization of U.S. Senate food service is a parable for wider issues [Tabarrok]
• Low-end strategies for acquiring criminal-law clients include trolling the attorney visiting area at the federal lockup, paying the hot dog guy in front of the courthouse [Greenfield]
• A Canadian Senator on why his country’s medical malpractice law works better than you-know-whose [Val Jones MD leads to audio]
• U.K.: convicted rapist sexually assaults and murders teenage girl after housing authority is told evicting him would breach his human rights [Telegraph]
• No word of legal action (yet, at least) in Salina, Kansas car crash that driver blames on “brain freeze” from Sonic restaurant frozen drink [AP/K.C. Star]
• In Michigan, some mysterious entity is trying to drop an electoral anvil on two of our favorite jurists [PoL]

“The provincial agency that regulates casinos in Ontario, Canada, is being sued by registered problem gamblers who claim they aren’t being refused entry. The Canadian Broadcasting Corp. said the $3.5 billion suit was filed Tuesday in Toronto against the Ontario Lottery and Gaming Corp., on behalf of ‘thousands of addicted gamblers.’” Canadian litigation rules were historically highly restrictive of class actions, but have been liberalized lately. (UPI; Reuters; OGPaper). Similarly earlier here, here, here, etc.

* New Jersey: “A federal judge in Camden last week dismissed a lawsuit filed by a band of American Indians seeking to reclaim land they said the state sold out from under them more than 200 years ago. The Unalachtigo band of the Nanticoke-Lenni Lenape Nation demanded the return of 3,044 acres of the former Brotherton Reservation, which sits mostly in Shamong Township in Burlington County.” [Philadelphia Inquirer; Camden Courier-Post/Red Lake Net News, 2006 (expensive law firm of Reed Smith was representing tribal band, which was angling for casino rights)].

* A new C$550 billion land claim launched by the Whitefish Lake tribe (or “First Nation”, to adopt progressive Canadian terminology) includes the entire city of Sudbury, Ontario [Timmins Press, Sudbury Star]

* Second Circuit panel due this week to hear appeal on upstate New York Oneida claim, in which ejectment of current landowners is apparently (for the moment) off table as option [Rome [N.Y.] Sentinel; earlier on Indian land claim litigation].

The facade of the Old Morris tobacco shop in Victoria, British Columbia, which has operated at its location for 120 years, “has been preserved in it’s [sic] original design, including signs noting the tobacco, house blends and Havana cigars within.” New provincial legislation prohibits tobacco-promoting signage where visible to youths; “Businesses who violate the act face a $575 fine for a first offense, with penalties rising up to $5,000 for repeat offences.” At the same time:

In a letter sent to [store owner Rick] Arora, Steve Barber, senior heritage planner with the City of Victoria, called the store’s signs “an integral part of the history of this building and part of it’s heritage character,” meaning Arora cannot remove or cover the signs.

“They’ve made it clear I can’t touch them,” Arora said. “I could be fined $1 million and go to jail for two years.”

Neither government agency “is budging” on its demands. (Tom Mcmillan, “Tobacco store owner caught between policies”, Canwest/Vancouver Sun, May 27). Update: compromise struck (thanks to reader ras in comments).

The Canadian Supreme Court overturned the lower court C$341,000 decision in Mustapha v. Culligan of Canada, but it’s worth noting that the result would have been different in the United States. To recap, Waddah “Martin” Mustapha saw (but did not consume) a fly in a bottled water. As Yoni Goldstein memorably recounts:

[Mustapha] proceeded to vomit all over his house, and later experienced problems drinking anything with water in it, showering (because that also involves water) and going to work and having sex (where, presumably, water was involved in some major, incapacitating way).

Culligan did not contest that it was negligent; it did not even contest that the sight of the fly caused Mustapha’s injuries. It simply argued that Mustapha’s idiosyncratic reaction was not its concern, and that it should only be liable for the reaction of the reasonable person who had seen a fly in a bottle of water. In the US, that argument does not fly: basic 1L Torts teaches the “eggshell plaintiff” rule–you take the plaintiff as you find him or her. Canada differs. “The law expects reasonable fortitude and robustness of its citizens and will not impose liability for the exceptional frailty of certain individuals.” Canada is thus less prone to the sort of absurd claims that Mustapha raised than the United States is, as, if the courts follow the law, there is less incentive to exaggerate the scope of injury. In a US case, the defendant would have to engage in expensive pre-trial discovery to demonstrate that Mustapha’s psychological disorders were not caused by the incident, and would still have to go to a jury if Mustapha could produce an expert for hire who would testify differently. According to the Canadian Supreme Court, the appropriate approach is to simply use common sense and toss the case. But, as the lower court decision shows, there are certainly some in the judiciary who wish to move the Canadian model closer to the disastrous American one.

Martin Mustapha of Windsor, Ont. had won $340,000 over the fly for emotional distress and phobic reaction, though neither he nor any family member had come in contact with the water in question, since they spotted the insect before opening the bottle. Now the Supreme Court of Canada has refused to disturb an appeals court’s reversal of the award, and has ordered that Mustapha pay the water company’s legal costs. (”SCC quashes man’s suit over fly in bottled water”, CTV, May 22; earlier here and here).

It looks as if, barring intervention by the U.S. Supreme Court, serial ADA litigant Jarek Molski and his lawyer Thomas Frankovich, longtime Overlawyered favorites both, won’t be filing any more accessibility lawsuits in California’s populous Central District. The Ninth Circuit’s decision not to disturb an order to that effect by the late Judge Edward Rafeedie, however, came by a surprisingly narrow margin, with nine judges dissenting. Among them, Judge Marsha Berzon said Rafeedie should not have acted unilaterally to bar the two from suing throughout the district, while Alex Kozinski went so far as to maintain that Rafeedie had failed to offer evidence in suggesting “that Molski is a liar and a bit of a thief”. The majority of judges, however — and the Ninth is among the last circuits anyone would accuse of an excessive wish to shut down litigation — disagreed. (Dan Levine, “9th Circuit Judges Blast Order Barring ADA Lawyer”, The Recorder, Apr. 9). One final bit from the account in the Recorder might cause the reader’s jaw to drop open, as it did mine:

Rafeedie died of cancer late last month, but Frankovich still holds a grudge.

“What he did is morally reprehensible,” the attorney said Monday. “Acting morally reprehensible creates bad karma, and sometimes you have to pay the piper for bad karma.”

In other news of vexatious California litigants:

For years, self-described public-interest litigator Burton Wolfe has bragged that he was one of the few people to get off the state’s so-called vexatious litigant list for self-represented plaintiffs who file frivolous lawsuits. Those who are put on the list can file “pro per,” or do-it-yourself, lawsuits only with a judge’s permission. But after enjoying a few years off the blacklist, the 75-year-old Wolfe has sued his way back onto the roster. … [His name was restored to the list after] he sued the San Francisco Food Bank and America’s Second Harvest for setting up what he calls a food “racket” in the privately owned low-income senior-housing Eastern Park Apartments where he lives.

(Lauren Smiley, “Vexatious Litigant Burton Wolfe Fighting Eviction After Threatening More Lawsuits”, San Francisco Weekly, Feb. 20). Perhaps the most celebrated of modern San Francisco’s vexatious litigants is Patricia A. McColm, who has been profiled in a number of news stories including Ken Garcia, “Woman who sues at drop of hat may get hers”, San Francisco Chronicle, June 6, 2000, reprinted at Forensic Psychiatric Associates site. Incidentally, the British court system is thoughtful enough to post its list of vexatious litigants online, an obvious aid to persons who might find themselves the target of threatened suits by persons on the list. But although the California courts have a webpage discussing the fact of their having a list, I could find no sign that they had posted the list itself online. Have any U.S. states (or Canadian provinces, etc.) done so?

The British Columbia Human Rights Tribunal has ordered McDonald’s to pay $55,000 for failing to do enough to accommodate an employee whose disabling skin condition prevented her from complying with the restaurant’s hand-washing policy. Among other grounds for its decision, the tribunal cited the following:

There was no evidence of:

* the relationship between food contamination and hand-washing;…

(HRHeroBlogs/Northern Exposure, Apr. 15; Ezra Levant).

More: Commenter Bill Poser finds the decision “much more reasonable” than the reporting makes it sound and says, in particular, Northern Exposure cut off a relevant last word from its quote: “…hand-washing frequency“.

• Plenty of reaction to our Tuesday post questioning the NYT school-bullying story, including reader comments and discussion at other blogs; one lawprof passes along a response by the Wolfe family to the Northwest Arkansas Times’s reporting [updated post]
• Geoffrey Fieger, of jury-swaying fame, says holding his forthcoming criminal trial in Detroit would be unfair because juries there hate his guts [Detroit News]
• Another Borat suit down as Judge Preska says movie may be vulgar but has social value, and thus falls into “newsworthiness” exception to NY law barring commercial use of persons’ images [ABA Journal]
• Employer found mostly responsible for accident that occurred after its functionaries overrode a safety device, but a heavy-equipment dealer also named as defendant will have to pay more than 90 percent of resulting $14.6 million award [Bloomington, Ill. Pantagraph]
• New Mexico Human Rights Commission fines photographer $6600 for refusing a job photographing same-sex commitment ceremony [Volokh, Bader]
• “Virginia reaches settlement with families of VA Tech shooting victims” [Jurist]
• Roger Parloff on downfall of Dickie Scruggs [Fortune]
• Judge in Spain fined heavily and disbarred for letting innocent man spend more than a year in jail [AP/IHT, Guardian]
• Hard to know whether all those emergency airplane groundings actually improved safety, they might even have impaired it [Murray/NRO "Corner", WSJ edit]
• “Freedom of speech is an American concept, so I don’t give it any value” — tracking down the context of that now-celebrated quote from a Canadian Human Rights Commission investigator [Volokh]
• Who was it that said that lawyers “need to be held accountable for frivolous lawsuits that help drive up the cost of malpractice insurance”? Hint: initials are J.E. [three years ago on Overlawyered]