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It actually DID happen!!

Tue, 27 Oct 2009 14:31:17 GMT

My parents read my earlier post about urban legends and moved swiftly to set the record straight. A few days ago I got this email from them:

Dennis,
This is no urban legend. When I was in grade 9 Peggy Milan pulled a dried
mouse head out of her bag of Sids sunflower seeds. Our principal Mr. Walsh
who was supervising the class at the time helped her write a letter to the
company. I think she received a case of sunflower seeds a few weeks later
(excluding the mouse heads)

enjoyed reading your blog

VC.

Menace - you are a Case!

Jan told me the Aussie story; it didn't happen to her

I once found a stone in a tin of Sunrype raisin pie filling - do you remember ? I sent the stone to S'rype & they sent me a bunch of juice boxes !!

There you have it - straight from the horse's mouth!

More urban legends

Thu, 22 Oct 2009 05:55:19 GMT

Speaking of urban legends, do you remember ripping the tabs off pop cans and saving them up for charity?

If you ask most people (at least in North America) they will tell you that in elementary school they saved the tabs off of pop cans for some charitable purpose. Usually it was to pay for some healthcare provision that wasn't covered under MediCare. Why on earth would they do this? This is just another urban legend. There is no organisation that takes pop can tabs as payment for some charitable good!

If you ask people (and I have) why they think that you can redeem the tabs from pop cans for charity, they say that it is because you can sell the aluminium for money. This is certainly the case with copper - there are companies that will buy reclaimed copper in order to be able to recycle it. But if this was the case, why wouldn't you save the whole entire can?!?! You'd get a lot more money for that than you would for the puny tabs!

According to what I read, this urban legend originated back when you needed to pull a tab off of a drink can to get it open. Obviously today the drink cans are designed so that you don't need to pull the tabs off, but that might just help perpetuate the urban myth - it is now more rewarding to collect tabs for imaginary charities, because you actually have to do some 'work' for it.

The most amazing manifestation of this urban myth that I have ever seen was at the Metro grocery store in Ottawa; the one at Viewmount and Merivale. At one of the check-out counters, someone had put a clear plastic container with a hole cut out the top of it on display. There were a small number of pop can tabs in the bottom of this container, but to be honest, I don't think that number ever grew. Underneath the container was hand-printed note. In child's writing, it urged customers to save the tabs from their pop cans. For all I know, that thing is still there.

These big block letters said, and I'm not kidding you: "Please save the tabs from pop cans. We are collecting them. We need 4 million to get a wheelchair."

It is so ridiculous that you think I am making this up, but I am not. FOUR MILLION TABS to get a SINGLE WHEELCHAIR!!!!

DO YOU HAVE ANY IDEA HOW UNECONOMICAL THIS IS?? It's staggering!!

We don't even have to assume that a single can of pop costs $1 (which is what the price ususally is in a vending machine). Even at the lowest imaginable price, the scheme is just ridiculous! If you were buying no-name cola, in bulk, on sale you could probably get cans at $0.12 a pop. A simple internet search turns up a company selling wheelchairs that start at $99. FOUR MILLION pop cans at $0.12 would cost $480,000. In what bizarro world would this be considered a good bargain?? At what terrible elementary school did this scheme to collect FOUR MILLION pop can tabs have its genesis?? Any right-thinking person has to know that this is nothing more than a CRAZY urban legend!

Actually, come to think of it, I am quite sure that if you showed up at the headquarters of the cola company with a truckload of FOUR MILLION OF THEIR POP CAN TABS, I have no trouble believing that they would give you any wheelchair your heart desired!

My biggest regret - in my life - is that I never took my camera to the grocery store with me.

Donoghue v Stevenson and wild urban legends

Fri, 16 Oct 2009 20:05:52 GMT

I haven't blogged for some time because I caught cold and was sick for two weeks. When I am sick, I am NOT interested in blogging. But before my blogging hiatus, I had promised you that I would add some more comments about Donoghue v Stevenson, the important case from 1932 that essentially set the foundation for the way courts do tort law today.

I was studying the legal concept of the "duty of care" when I got entirely sidetracked. The duty of care is a legal concept to describe the sort of obligation you might owe someone else when you undertake to do certain things. Remember, Donoghue v Stevenson was about a foreign object that was found in a bottle of ginger beer. According to the facts of this case, a slightly decomposed snail was found in a bottle of ginger beer after Mrs. Donoghue had consumed the contents of that bottle of ginger beer. Upon learning of the snail, Mrs. Donoghue became violently ill. She was diagnosed as having gastroenteritis. She remained ill for nearly a month and had to seek hospital treatment. Fortunately, she recovered.

This relates to the "duty of care", because the courts found that Mr. Stevenson, the ginger beer manufacturer, owed Mrs. Donoghue a duty to take care to ensure that there would not be foreign objects in the ginger beer that Mrs. Donoghue would consume.

This case is a truly brilliant case, for reasons I might talk about in a subsequent blog post. But this case also bothers me because of its incredible facts. I mean, it's about an animal found in a food product, which seems to me to be really fantastical.

This became more of a problem for me after hearing my professor lecture on this case a few times. Every time he introduced this case he brought up two other similar cases that he claims to know of personally; he knows that a former student of his once found a mouse baked into a loaf of bread, and he also claims that he knows of someone who found a rat's head in a Big Mac they ordered at an Ontario McDonald's. He brought up these other two examples to make the story of a snail in ginger beer seem more plausible. This had the opposite effect for me however, because I know the old "mouse in the bread/burger" story to be an urban legend.

I know it to be an urban legend because I first heard it from my mother when I was very young, and it was an urban legend back then too. In fact, I heard it in two different incarnations from my mother. (As it has been some 15-odd years since my mum told me these stories, I am sure that I remember them with less-than-perfect accuracy. Also, I seem to remember being about 7 when I was told these stories, but the truth is I was probably older, and in fact, the stories were probably told to me at some interval, perhaps even years apart.) The first story was simply this: "Someone bought a loaf of bread at Safeway and there was a mouse in it." It is particularly notable that it was at Safeway. I remember thinking even as a young child that this was particularly ironic; the store is called "Safeway" for the specific reason of communicating to customers that it is a "safe way" to buy their groceries - yet it apparently was not safe at all! When I heard that story I thought that Safeway should, at the very least, change its name.

I grew up in a small town where there was only one grocery store, and it was an IGA. My already-strong brand loyalty to IGA became even stronger when I heard about such goings-on at the cold, impersonal, big-city chain of Safeway!

The second time I heard it from my mother was when she told a story that supposedly came from a family friend. This is especially interesting because the family friend in question is someone that I know quite well; I suppose there is nothing to stop my from phoning up this friend and asking her myself if this story ever actually happened. This family friend used to live in Australia - that much is true. According to the story, during one of the summer's when this friend lived in Australia, the continent suffered a plague of mice. The mouse population apparently just exploded and there were mice everywhere in Australia. (Even as I am typing this I am searching google to find out of this alleged plague is a matter of historical record, or is an urban legend itself. When I type "mouse plague" into the search engine, it automatically offers up "mouse plague in australia" as the first suggestion. Remarkable. UPDATE: OK, there is now no doubt about the recurrence of mice plagues in the grain-growing regions of Australia. I have just watched some of the most scarring youtube footage I have ever seen in my life.) So, our friend living in Australia and a plague of mice are the undoubtable parts of this tail - I mean, tale. The whole story is that, in Australia, during this mouse plague, our friend made a cake. When she put it in the oven it was fine. When she took it out of the oven, it had a mouse baked into it. (Apparently because there was a mouse hiding in the oven that had time to climb into the cake pan before being baked to death.) At least, that's how I remember my mum telling the story. It is more likely she told this story as one which our friend knew of from her time in Australia, as opposed to one that happened to our friend. I'm going to have to call that person up and try and sort this out.

The point is, I've heard the mouse-in-baked-goods story before, and I'm just convinced that it's an urban legend. So when variations of this story are invoked to support the likelihood of a snail in ginger beer, it only serves to make me more suspicious of the existence of said snail. This is all the more interesting to me because a) the remains of the snail that was allegedly in the ginger beer was never produced as evidence, and b) my professor, in an as-yet-unpublished book, admits that the snail may have been "real or imagined".

So I did a little more internet digging. It turns out that Google Books will throw up a few books by one Jan Harold Brunvand, an American scholar who specialises in American urban legends. According to his "Encyclopedia of Urban Legends", the rodent story is known to people who study this sort of thing as the "Rat in the Rye Bread" legend. Apparently it originated in America or Canada in the 1940s and in its earlier incarnations almost always involved rye bread. Interestingly, according to Mr. Brunveld, the bakery that is supposedly involved was almost always named as well; this would be consistent with my mum naming Safeway in her rendition of the story.

However, this scholarship from Mr. Brunvand does not mean that a mouse baked into bread never happened. It just means that most renditions of the story are not based in a specific occurrence of the phenomenon. Burnvand says that the mouse/rat in the bread story persists precisely because it is so plausible. And, in his book "Too Good to Be True: The Colossal Book of Urban Legends" he says that there have been numerous suits filed in American courts claiming damages after a mouse or remains thereof were found in a cola bottle. He specifically mentions Ella Reid (1931) and George Petalas (1971) as plaintiffs who brought actions against bottlers for this reason, with at least Mr. Petalas being successful.

This got me thinking about other urban legends and how they morph and persist. More particularly, I was thinking about how it is always big chains that are the subject of these stories. When it's a burger joint that is involved, it is almost always McDonald's. Virtually every time I hear an urban legend about a foreign object in a burger, it is always McDo's. In some cases, it's been Wendy's. But I have never once heard anyone tell a story about a contaminant in a burger from Arby's, Harvey's, A&W, or even Burger King.

This blog post has become far too long already - when I come back, I have all kinds of crazy stories to tell about urban legends:
- Why is McDonald's always the target of these urban legends?
- Is someone really trying to ban this worthy thing that I believe in??
- Was it really worth it for my elementary class to pull all those tabs off of pop cans??

I never realised how into urban legends I was! Apparently I've really been bottling this up for some time . . . .

Anyway, my point in this whole rambling rant is that the most important case in the entire English common law is based upon a snail that probably never even existed.

Not a perfect day

Mon, 28 Sep 2009 20:14:50 GMT

Even an enjoyable experience like being a student at one of Canada's best law schools has it bad days.

Today was the first game of my intramural touch football team. Don't ask why we are called the Cinammon Challengers, but we are pretty awesome. We have a great quarterback, exceptional team spirit, and we even had a practice! I was certain that we were a pretty great team. Well, today in our first game, we were crushed. We only got one touchdown. It was a disaster. Not the best way to start the season.

Then I went to my class on Criminal Law. After we had our break, I was trying to get back to my seat which was in the middle of a long row of desks. Well, I didn't want to disturb everyone sitting between me and the aisle, so I tried to climb over the desks behind my seat. This maneouvre resulted in a massively large bruise manifesting itself on my shin (not to mention a healthy dose of public embarassment).

Oh, and on top of that, it is raining today.

Nevertheless, going to law school is still really awesome. For my next post, I will have some further thoughts on Donoghue v Stevenson.

Legal Interpretation is a wild beast

Mon, 21 Sep 2009 04:38:24 GMT

During my first few weeks at law school, I have been learning some eye-opening facts. Perhaps the most eye-opening is the fact that there is really no trick to the law. To the man on the street, it might seem like there is. After all, lawyers use complex terminology and navigate a puzzling system of courts, tribunals, and administrative bodies. Isn't there some special knowledge required to interpret laws?

Well, after only a few weeks here, I can tell you that there is no special trick. The law is not an esoteric abstraction that is to be understood by the learned few, or some complex system of rules and regulations that can only be navigated by the elect - the law is simply what judges say it is. Full stop.

Consider the following example. In the case of R v Huggins, a pit bull had bitten another dog. Now, there is a pretty comprehensive pit bull law in Ontario, and it says that if a pit bull bites a domesticated animal, that pit bull has to be destroyed. That is what the law says. It is clear and unequivocal. It may be a ridiculous law (I happen to think it is), but there is no ambiguity in what the law says. When the dog that has bitten someone's pet dog is a pit bull, the court shall issue a destruction order.

(It would be far too lengthy to reproduce here, but the text of the Dog Owners' Liability Act can be seen here. I'm referring specifically to s. 4, subs (1), (3), and (8).)

So, the law is clear. It is obvious that this is a pit bull, and it has bitten a domestic animal. So what did the judge do in this case? Open and shut, right? Wrong. The learned judge decided that it would be a terrible waste of canine life to destroy this dog, so instead of doing what the law said, he interpreted the law so it said something different!

The judicial tool that judges use for getting the result they want (instead of the result the law proscribes) is something called "interpretation". Now, the concept of interpretation arose from noble instincts. At times, there have been laws that have been unclear, or ostensibly contradictory. In such instances, the judiciary has been called on to make sense of a muddied situation. But today, it seems to me that interpretation is mostly used so that judges can get a law they don’t like to do what they want it to do.

There are three different rule of interpretation that judges use. Of course, they need more than one, because one might not be sufficient to get the result they want to see!

- “Literal” or “Plain Meaning” Rule: The “literal rule” states that if the statutory words are plain and unambiguous, they must be construed in their ordinary sense. This rule holds true even if such plain language interpretation leads to an absurdity or injustice.

- Golden Rule: One begins with the literal or plain meaning rule, but if its application leads to an absurdity, then the golden rule permits the ordinary sense of the words to be modified but only to the extent of rectifying the absurdity or inconsistency, and no more.

- Mischief Rule. The Mischief Rule attempts to unmask Parliamentary intention. The Mischief Rule asks: What is the specific remedial legislative intention?

Judges start with the literal rule, and if they like what it results in, they keep it. If they don’t like what they see, they can switch to the Mischief Rule. “Well, clearly Parliament meant to stop violent attacks by dogs. But did they mean to achieve that end by killing all pit bulls? Surely not.” This rule is criticized, because it assumes that there is some hard and fast Parliamentary intention to discover: there usually isn’t.

Lastly, and most disconcertingly, the judges can use the Golden Rule. You go with what the law says, unless that leads to an absurdity, then you can unilaterally change the law. This rule should scare anyone – who is to say what is absurd? One judge’s absurdity might be society’s normalcy. Giving judges the authority to change the law to rectify what they see as “absurdities” is a broad power indeed.

And that is why I have no qualms about telling you that the law is simply what judges say it is. It doesn't matter what the legislature has decided; it doesn't matter what is written on the statutes. The judges will simply use whatever rule of interpretation they need to to get the law to bend to their ideal.

As my torts professor Allan Hutchinson said in class the other day, “The law isn’t the law because it’s right; it’s right because it’s the law.” He also said that sometimes he feels like it shouldn’t be called the “Rule of Law”, and instead should be called the “Rule of Five” – the law is whatever the majority of five judges on the Supreme Court says it is.

So after only a few weeks of law school, I have learned one important lesson: when judges don’t like what the law says, they will simply use sophisticated sophistry to make it say something else.

A slow start to law school

Tue, 15 Sep 2009 00:32:12 GMT

The start to law school has been a really slow, long, and drawn-out affair. Our first week was the Orientation Week, in which we got to know our classmates. We also had some classes in Ethical Lawyering, which was interesting, but not as rigorous as what we have been lead to believe law school will be. It was a good and interesting week, but because we did not start our regular curriculum, we didn't really consider to be a "real" week of law school.

In the second week, we started our regular curriculum, so we took to calling it our "first week of REAL classes." The problem was, that week had the Labour Day Monday, so we only went to four days of classes.

Today started the third week of law school, but in so many ways it feels like THIS is first real week of law school.

It's been a slow start for other reasons, too. We are all new, so we're not sure that we have sorted out our social circles, or really figured out the particulars of our identities as law students. Everyone is still trying really hard to impress, especially with brainy answers in class. Not only that, but none of the clubs I signed up for have commenced their activities yet, nor have intramurals started yet. The daily high continues to hit the mid-twenties, so it still feels like summer outside. For all those reasons, it feels like it's been a slow start to law school.

I have all my classes with the same 72 (approx) people, and what I have noticed is that it's always the same 20 people who put up their hands to contribute to class discussion. Right now, I am one of those 20 people. I don't know if I should be. My classes all have a "participation grade", but I don't know how much I'm really gaining by sticking my hand up and interjecting myself into the conversation. Is this impressing any of my classmates? My professor? Am I simply looking like a self-important git? Does anyone really appreciate anything I have to say?

The dynamic of attending a professional school is really interesting, and different from undergrad in so many ways. So far it's been manageable, but I am taking steps to maintain my sanity by playing copious amounts of Wii Sports Resort in between all my readings.

Were Donoghue and Stevenson neighbours?

Wed, 09 Sep 2009 19:44:35 GMT

Well the first week of law school has been a blast. We have finally started classes, and so far everything has been really interesting.

Perhaps the most interesting thing to me is one of the first cases we learned about: Donoghue v Stevenson (1932).

This was a funny case about a dead snail that appeared in a bottle of ginger beer. The question was all about whether or not the manufacturer of the ginger beer owed a duty of care to the end user of that ginger beer. The case is foundational because in it, the British House of Lords overhauled the entire system of tort law, replacing the old categories of tort recovery with a single comprehensive principle -- the negligence principle.

The negligence principle is based on two pillars: forseeability and proximity. The first pillar is simple enough. If you can reasonably see that harm might come to another person from your actions, you have a duty of care. But what persons do you have a duty of care to? Surely you don't owe a legal "duty of care" to every person in the world. Well, that is where the concept of proximity comes in, and Lord Atkin put it like this: he said that to answer the question of proximity you have to ask, "Who then, in law is my neighbour?"

And that is where Donoghue v Stevenson, for me, becomes fascinating.

The courts in Canada adopted the negligence principle from Donoghue v Stevenson, and since 1932 have been wrestling with the question, "Who then, in law is my neighbour?"

(As an aside, I found it equally fascinating to learn that the courts developed a test for answering the question "Who then, in law is my neighbour?" in the case Anns v Merton London Borough Council. I found it fascinating only because the Anns test was developed by Lord Wilberforce, none other than the great-great-grandson of the famous abolitionist.)

In very recent cases, the Supreme court of Canada continues to wrestle with precisely who, then, in law "is my neighbour?"

I found it amazing because, in my first week of law school, I was presented with a question that lawyers have been asking not since 1932 but for the past two thousand years!

Two thousand years ago, the following exchange took place in Palestine:

(Luke 10:25-29) And behold, a lawyer stood up to put him to the test, saying, "Teacher, what shall I do to inherit eternal life?" He said to him, "What is written in the Law? How do you read it?" And he answered, "You shall love the Lord your God with all your heart and with all your sould and with all your strength and with all your mind, and your neighbour as yourself." And he said to him, "You have answered correctly; do this, and you will live."

But he, desiring to justify himself, said to Jesus, "And who is my neighbour?"

It is incredible, but 1900 years later lawyers are still asking "Who then is my neighbour?"

I skipped the pub crawl, then got all misty-eyed about being here

Sat, 05 Sep 2009 00:45:05 GMT

I skipped the pub crawl.

Everyone was so jacked about this pub crawl. All week long people were going on about this Friday night pub crawl and how awesomely awesome it was going to be.

I hate pub crawls.

This pub crawl had grown to practically mythical proportions. It was nothing short of heresy to suggest that one might not be attending the pub crawl. When I was asked, I just starting telling people that I was going to go.

I'm just not into pub crawls for all kinds of reasons, so I stayed home and completed my first assignment at law school. It was a really short two-page assignment, but it was a sort of accomplishment nonetheless.

I skipped a scavenger hunt that would have been really cool (I slept through it) and didn't go to the life-altering, globe-shaking, world-changing pub crawl. But I am at law school, and I'm doing law school.

Instead, I napped. And, I just spent a little bit of time reading through my old emails that had to do with Osgoode. Of all the schools I applied to, there is no question that I most wanted to get into Osgoode. I had forgotten how badly I wanted to get in here. I had almost forgotten how improbable my admission seemed.

A few months ago, I would have given my left kidney to attend law school. Now I am here. I am still floored at how I was handed this incredible privilege. Attending this law school, with all its history and prestige, is not something to be taken lightly. I cannot believe how lucky I am to be here, and I hope that I never forget that.

I only just learned of the opportunity to be a 'student ambassador' for the school. Even though I have only been here for one week, I want to find some manageable (I still need time to do my school work!) way to give back to this school. They let me in, and have given me a path to a profession. They didn't have to do that. The least I can do it volunteer a few hours to extol the virtues of Osgoode Hall Law School. I think I will apply for one of these volunteer positions. It would probably be a lot of fun.

Distinguished Osgoode Alumni

Wed, 02 Sep 2009 01:37:20 GMT

Today was a fun day. It was my first day of classes!

But I have a story that I've really got to tell you, and it started yesterday. The Dean gave us an official welcome, and during her speech she sought to impress us by naming some Osgoode Hall graduates who had gone on to illustrious careers. She named people like Ontario Associate Chief Justice Dennis O'Connor and renowned criminal defence lawyer Eddie Greenspan among many others. She rounded out the list by making reference to the former Attorney General of Ontario and current CEO of Invest Toronto, Michael Bryant.

Later that day, the same Michael Bryant apparently ran over a cyclist on Bloor Street and killed him.

On my first day of law school, the world conspired to cough up this story.

It was certainly the talk of the school today, and anticipate that this case will be followed closely by the student body. I have no doubt that it will be discussed in and outside of class, as we follow its developments.

From an educational and analytical perspective, the great thing about this (if there can be anything great about such an awful tragedy) is the seeming complexity of this case. It is not an open and shut case. According to news reports it seems that the cyclist originally attacked Bryant, who was sitting in his convertible at a red light. He apparently grabbed on to the side of the car and wouldn't let go. Bryant apparently drove to the opposite side of the street until the man hit a mailbox and was run over by the back tires. On the one hand it seems like Bryant flew off the handle and mowed the guy down. On the other hand, one has to imagine that Bryant was scared out of his wits, and probably thought that this guy was going to kill him.

It remains to be seen what sort of defence will be mounted by Mr. Bryant, but I have a feeling that this is going to be an interesting case that gets lots of airtime in the halls of Osgoode Hall Law School.

First Day in the Books

Tue, 01 Sep 2009 01:03:44 GMT

Pfff, well that was easy.

I am done my first day of law school, and it was a breeze! Actually, classes don't start until tomorrow, so today didn't provide any challenges of an academic nature. What it did provide was some orientation activities, and a lot of familiar faces.

In fact, it was hard to keep up with all the people I saw, because I already knew a number of them! I had to sort everyone I met into the categories of people I already knew, and people I was meeting for the first time. Yes, there were people I had known from politics, as well as people I have met through them. And there were the others I had met at the pub night in Ottawa.

But the amazing thing was, I saw at least four people (possibly more) I had known or known of at Queen's, but had no idea that they were coming to Osgoode! TWO of my O-Week leaders were people that I had had classes with at Queen's! How crazy is that!!! It made me feel that the world was REALLY small. Some of them even remembered my face before I put a name to their's, which was trippy. I hadn't seen these people in three, four, or five years, and they still remembered me from Kingston (and I them). It simply confirmed my belief that, above all else, Queen's is a university with an unbeatable school spirit and a place where memories are made for a lifetime.

It was an unexpected and pleasant surprise to learn that so many of my colleagues at law school are people that I already knew from somewhere else.