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PostPosted: Sat Nov 26, 2011 11:10 am 
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I thought this might be interesting to those here who photograph nature or birds. While in general I support most of the items in the policy I question their ability to enforce a ban on posting on the internet. It is probably unconstitutional and it is likely beyond their authority.

They should have limited this to a request sightings not be posted or ask that posts be limited so as not to provide the exact location of the owl.

https://docs.google.com/viewer?a=v&pid= ... k&hl=en_US

DG


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PostPosted: Sat Nov 26, 2011 11:35 am 
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sounds like a neat place.

However, uuugh, there was just a huge discussion about the Occupy Protest. Are you really sure there is a Constitutional "Right" to go on their park and report locations of their owls over the internet?


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PostPosted: Sat Nov 26, 2011 2:40 pm 
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chopper wrote:
sounds like a neat place.

However, uuugh, there was just a huge discussion about the Occupy Protest. Are you really sure there is a Constitutional "Right" to go on their park and report locations of their owls over the internet?


Depends on how you view the freedom of speech or more correctly the freedom of expression section of the Charter. Section 2(b) of the Charter states that "Everyone has the following fundamental freedoms: ... freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication."

The question becomes is it reasonable for the Toronto and Region Conservation Authority to restrict you from posting on the internet the owl sightings at the park? I don't think it is, and as a citizen it worries me when a government body takes actions that impinge on our rights.

As a reminder I am a nature photographer mainly and I believe in the adage to do no harm to my subjects and so agree with some of the aspects of this policy as appropriate practices that should be practised when photographing wildlife even without the policy.

DG


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PostPosted: Sat Nov 26, 2011 3:23 pm 
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I think the reason why sanctuaries such as this are trying to avoid people advertising them on the internet is because of the percentage of people that come to these places and ruin it for the rest of us by doing things that are disturbing to the natural behaviours of these animals. For example - Owl Woods on Amherst Island - apparently the guy who owns the property is very close to shutting down public access for good because of a few dumb people.

But for the most part, I completely agree with you. As a nature photographer, we have the utmost respect for these animals, and want to capture them in as natural of an evironment as possible.

Legally I have no idea how they could stop you from posting information about owl sightings on the Leslie street spit. Free speech in the charter dictates that I have the right to say whatever I want -- but I guess the internet could be viewed as a publication, and thus come under different laws.


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PostPosted: Sat Nov 26, 2011 3:44 pm 
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Charter considerations only come into effect on government bodies. If this is privately run, then as part of a "contract" for access to the premises, you would agree by the terms of the access, including the internet posting. If so, then you cannot disclose of face a breach of that contract.

People have a tendency to expand Charter arguments to private. commercial areas as well. A good example, is a contract of non-disclosure of your employer's secrets. It is enforceable as a matter of contract right, regardless of Freedom of Speech arguments.


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PostPosted: Sat Nov 26, 2011 5:21 pm 
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It seems to me the Canadian Charter of Rights and Freedoms allows one to do whatever they want to do or say as long as someone else will allow it. Every time it comes to push or shove there is a loophole which prevents true freedom of speech. You really cant say whatever you want no matter what you think.


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PostPosted: Sat Nov 26, 2011 6:08 pm 
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chopper wrote:
Charter considerations only come into effect on government bodies. If this is privately run, then as part of a "contract" for access to the premises, you would agree by the terms of the access, including the internet posting. If so, then you cannot disclose of face a breach of that contract.

People have a tendency to expand Charter arguments to private. commercial areas as well. A good example, is a contract of non-disclosure of your employer's secrets. It is enforceable as a matter of contract right, regardless of Freedom of Speech arguments.


Nonsense nothing to do with charter! Show me the law and means that they would use to enforce or punish you if you so choose to publish the GPS location of an owl. Is it some Hogwarts school of owls bylaw. If it's not in the wildlife conservation act or some other bylaw then without a signed contract you have nothing to fear. If they find out who you are they could try to keep you off the property because of trespassing laws but considering the considerable number of tpmg members that break the law of trespassing, or even worse do break and entry's (as it comes under the criminal code). Good luck keeping them out.

This being one of the threads:
http://tpmg.ca/forum/viewtopic.php?t=18441

The downside is like when stupid so call photographers insist that they can take photos of anyone in a public place even if they have been asked not to is that: the laws might be changed or we loose access to the site.

An exception might be if you sent the co-ordinates while you were still on the property then they might be able to do something.


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PostPosted: Sat Nov 26, 2011 6:38 pm 
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Metrix wrote:
Nonsense nothing to do with charter! Show me the law and means that they would use to enforce or punish you if you so choose to publish the GPS location of an owl. Is it some Hogwarts school of owls bylaw. If it's not in the wildlife conservation act or some other bylaw then without a signed contract you have nothing to fear. If they find out who you are they could try to keep you off the property because of trespassing laws but considering the considerable number of tpmg members that break the law of trespassing, or even worse do break and entry's (as it comes under the criminal code). Good luck keeping them out.


wow, dangerous interpretation. You DO NOT need a signed contract to have an agreement. When there are terms for someone being permitted to be on someone's premises or partake in something, there can be an agreement, regardless of whether or not there is a signed contract. What damages flows from that depends on the consequences.

Say, you posted locations of the owls and someone breaks in and steals or kills the birds and your online posts/website becomes an exhibit as to the connection to how that person knew what was inside the location. Then you can be facing a lawsuit for damages. Simple as that.


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PostPosted: Sat Nov 26, 2011 7:29 pm 
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chopper wrote:
Metrix wrote:
Nonsense nothing to do with charter! Show me the law and means that they would use to enforce or punish you if you so choose to publish the GPS location of an owl. Is it some Hogwarts school of owls bylaw. If it's not in the wildlife conservation act or some other bylaw then without a signed contract you have nothing to fear. If they find out who you are they could try to keep you off the property because of trespassing laws but considering the considerable number of tpmg members that break the law of trespassing, or even worse do break and entry's (as it comes under the criminal code). Good luck keeping them out.


wow, dangerous interpretation. You DO NOT need a signed contract to have an agreement. When there are terms for someone being permitted to be on someone's premises or partake in something, there can be an agreement, regardless of whether or not there is a signed contract. What damages flows from that depends on the consequences.

Say, you posted locations of the owls and someone breaks in and steals or kills the birds and your online posts/website becomes an exhibit as to the connection to how that person knew what was inside the location. Then you can be facing a lawsuit for damages. Simple as that.


What hyperbole, you can't be serious where do you come up with these ideas, find me some case law :roll: maybe in the States but not in Canada. You can sue anyone but it doesn't mean you have a case. No verbal or written contract, no laws were broken then no case! Period. The most the could try to get you for would be trespassing after the fact and as I said above TPMGers are doing it all the time.


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PostPosted: Sat Nov 26, 2011 7:46 pm 
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Let's not start getting carried away in the thread. Lawsuits are not the issue.

Just to be clear TRCA is a government agency and so I believe their actions are subject to the Charter. Just as they are subject to the access to information laws that apply to the government.

I would expect that if there was an attempt to enforce that provision it would be done through banning the offender and then applying the trespassing laws if they came on the property. There may be provisions in the legislation applying to conservation areas that could apply.

And finally the Charter does not allow one to do and say as they wish. It is subject to the reasonable limits of law based on tests set by the Courts.

DG


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PostPosted: Sat Nov 26, 2011 9:00 pm 
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Metrix wrote:
What hyperbole, you can't be serious where do you come up with these ideas, find me some case law :roll: maybe in the States but not in Canada. You can sue anyone but it doesn't mean you have a case. No verbal or written contract, no laws were broken then no case! Period. The most the could try to get you for would be trespassing after the fact and as I said above TPMGers are doing it all the time.


First, just because people are trespassing all of the time, doesn't make someone invulnerable from picking up liability.

Second, as i said, there can be situations where someone agrees to terms in exchange for being allowed to enter, or participate in an activity or premises. Hence a VERBAL AGREEMENT or CONTRACT. Here's another example. I will let you into my business (restaurant, laundry mat, whatever) to take photos, but i tell you that the condition is that if you cause any damages, you agree to be responsible for them, or cause someone else's damage while there. No written agreement, but on their face, legally enforceable terms, nonetheless. That's it. So if this park was private, and it posted specifc rules that each photographer has to agree to to come on and take photos, then if damages accrue form that, there can be liability attached to it.

Here's a case where oral terms even superseded a written contract:
Rejdak v. The Fight Network Inc. [2008] O.J. No. 2995

Also see the Court of Appeal case of: UBS Securities Canada, Inc. v. Sands Brothers Canada, Ltd.

Even without a verbal or written contract, and no laws are broken, there are situations where you can still incur liability for damages caused by you that ought to have been reasonably foreseeable from your actions. The fact that you were told not to do something and you did it anyway and something happens that causes damages, yup, you can be on the hook.

you might want to brush up on your duty of care jurisprudence.


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PostPosted: Sat Nov 26, 2011 9:09 pm 
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Easiest way to find out where the owls are out there is to just ask people who are walking back to their cars if they've seen anything. Internet is just "soooo" behind the times :-) Perhaps the park will just ban people from talking out there too?


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PostPosted: Sat Nov 26, 2011 9:21 pm 
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chopper wrote:
Metrix wrote:
What hyperbole, you can't be serious where do you come up with these ideas, find me some case law :roll: maybe in the States but not in Canada. You can sue anyone but it doesn't mean you have a case. No verbal or written contract, no laws were broken then no case! Period. The most the could try to get you for would be trespassing after the fact and as I said above TPMGers are doing it all the time.


First, just because people are trespassing all of the time, doesn't make someone invulnerable from picking up liability.

Second, as i said, there can be situations where someone agrees to terms in exchange for being allowed to enter, or participate in an activity or premises. Hence a VERBAL AGREEMENT or CONTRACT. Here's another example. I will let you into my business (restaurant, laundry mat, whatever) to take photos, but i tell you that the condition is that if you cause any damages, you agree to be responsible for them, or cause someone else's damage while there. No written agreement, but on their face, legally enforceable terms, nonetheless. That's it. So if this park was private, and it posted specifc rules that each photographer has to agree to to come on and take photos, then if damages accrue form that, there can be liability attached to it.

Here's a case where oral terms even superseded a written contract:
Rejdak v. The Fight Network Inc. [2008] O.J. No. 2995

Also see the Court of Appeal case of: UBS Securities Canada, Inc. v. Sands Brothers Canada, Ltd.

Even without a verbal or written contract, and no laws are broken, there are situations where you can still incur liability for damages caused by you that ought to have been reasonably foreseeable from your actions. The fact that you were told not to do something and you did it anyway and something happens that causes damages, yup, you can be on the hook.

you might want to brush up on your duty of care jurisprudence.


Both cases are totally irrelevant in the first case they are talking about oral versus written. Where is the written or oral contract in what we are talking about?????

The second evolves special security laws designed to prevent fraud, also in no way relevant.

You haven't in any way made your case. Instead of wasting my time maybe you start explaining how any more googling is relevant.:roll:


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PostPosted: Sat Nov 26, 2011 9:32 pm 
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Metrix wrote:
Both cases are totally irrelevant in the first case they are talking about oral versus written. Where is the written or oral contract in what we are talking about?????

The second evolves special security laws designed to prevent fraud, also in no way relevant.

You haven't in any way made your case :roll:


oh my. I guess from your responses above, you are not a lawyer. Since you are having a hard time understanding this, i will make this even easier:

(1) you do not need a written contract to be bound by terms (see cases), which was my original point. This can incur as a result of permission for access.

(2) even where you break no laws, and have no written or oral contract, you can still be held liable for damages. I've tried to explain examples to you, but dont seem to be able to understand them. Read my restaurant example again if you're having trouble understanding the concept.

Let's go back to Law 101. Look up the old Donoghue v. Stevenson case. No contract, no direct law broken that formed the basis of the case. Duty of care, negligence, damages.


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PostPosted: Sat Nov 26, 2011 10:37 pm 
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Now your grasping at straws early English Scottish laws I would laugh except it's so ridiculous.

Your 2 examples would be laughed out of court the first one was about verbal versus written.

The second one was related to security contracts and what defines a contract.

Quote:
(2) even where you break no laws, and have no written or oral contract, you can still be held liable for damages.


Make up your mind, blaming the other side for not understanding your own argument is pretty poor form (I have to assume you can't be a lawyer as you don't know the difference between relevant an irrelevant case law) Just because you fail to make your point by bringing up irrelevant information don't blame me. Of course you can be sued in a civil suit for liability but they still have to prove the case so give me a civil suit for liability against the public in Canadian law where publishing location information on the internet is sue-able and they have won their case. If I were you I would look at Google maps for inspiration. But if you could be sued your could also be sued for posting an photo with any recognizable landmark or GPS exif turned on, where does the madness end :roll:

Back to the real world why would anyone want to harm the owls, common respect for living creature should be all the guide you need.


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PostPosted: Sat Nov 26, 2011 11:11 pm 
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dgibson wrote:
I thought this might be interesting to those here who photograph nature or birds. While in general I support most of the items in the policy I question their ability to enforce a ban on posting on the internet. It is probably unconstitutional and it is likely beyond their authority.

They should have limited this to a request sightings not be posted or ask that posts be limited so as not to provide the exact location of the owl.

https://docs.google.com/viewer?a=v&pid= ... k&hl=en_US

DG


Thanks for the heads up.
I know a few people who go and have previously made others aware of vague locations.

I think the grasp of this document is to remind people about the safety of the animals and just how hard we've made it for them to survive. Undue attention form the "masses" so to speak could only stand to harden their species support.

I think that your average reader would understand, but because of the outliers they have to use a little more serious sounding things to try and ward offenders off.

As it is open to the public though there is no reasonable expectation of privacy and thus would be fairly difficult for them to enforce. But then again anyone "caught" in person doing so could be removed from the property.

Anywho, good on you for sharing the information, so thank you!


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PostPosted: Sat Nov 26, 2011 11:14 pm 
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I did some checking and while this has been posted on a birding/photography forum allegedly by TRCA it has not been posted on the Tommy Thompson Park site under policies. It may yet prove to be a scam. Or they may not have updated their web site yet.

DG


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PostPosted: Sun Nov 27, 2011 12:12 am 
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alexanderhosking wrote:
dgibson wrote:
I thought this might be interesting to those here who photograph nature or birds. While in general I support most of the items in the policy I question their ability to enforce a ban on posting on the internet. It is probably unconstitutional and it is likely beyond their authority.

They should have limited this to a request sightings not be posted or ask that posts be limited so as not to provide the exact location of the owl.

https://docs.google.com/viewer?a=v&pid= ... k&hl=en_US

DG


Thanks for the heads up.
I know a few people who go and have previously made others aware of vague locations.

I think the grasp of this document is to remind people about the safety of the animals and just how hard we've made it for them to survive. Undue attention form the "masses" so to speak could only stand to harden their species support.



Not to throw too much fire on the flame, but none of the owl species here are all that uncommon for the region and if they were really 'hard done by' and harassed, then they would fly to greener pastures. If you speak with raptor experts, such as the team at the Montsberg reservoir and raptor sanctuary, the reason why they stay is that they typically don't consider the human harassment that much of a nuance, especially when compared to the huge amount of easy to get food in that area.
The other common issues brought up is with regard to flash photography of owls. I'd make reference to the following article for another view which is backed by facts and experience rather than hearsay. http://photo.net/learn/nature/owlflash


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PostPosted: Sun Nov 27, 2011 12:21 am 
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Metrix wrote:
Now your grasping at straws early English Scottish laws I would laugh except it's so ridiculous.

Your 2 examples would be laughed out of court the first one was about verbal versus written.

The second one was related to security contracts and what defines a contract.

Quote:
(2) even where you break no laws, and have no written or oral contract, you can still be held liable for damages.




Well, my suspicion is confirmed, Metrix. All first year law school tort classes in Canada teaches that Stevenson case. It is the seminal tort case demonstrating legal liability without the (privity) of contract principles. Your description of it as an 'early English Scottish laws' pretty much sums up your actual knowledge of the law, so i guess its a waste of further time to help you understand the principle here.

To everyone else, the overall point i was making is that not to so casually ignore access policies of properties. Be careful of whether it is private (can be run by a private company, even on public lands) or public facilities, and be reasonable before you want to simply ignore rules that may be a condition of your access to the premises.

Lastly, Metrix. I am a lawyer, by the way. A Trial lawyer to boot, so my daily job is to litigate these kinds of issues in Court. And to understand the law.

I figure i must be decent at it, since I have not lost a case in Court in over a decade, which comes out to about 180+ cases won in a row (successful judgments) without a loss. I have never been laughed out of court, but, i have made two different grown men cry in the witnesses box and an Ontario Superior Court Judge did call me a "big meanie" for beating the other side so badly in one case :)

I have over 2 dozen now, i think, actual reported Judicial decisions establishing important points of law (the comparison would be something like being reported in scientific journals or other professional journals if you dont understand) and I have spoken/presented at national litigation conferences for lawyers on matters of evidence.

I hope you dont end up at the wrong end of a litigation before you realize how wrong you are. good luck, bud.


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PostPosted: Sun Nov 27, 2011 12:23 am 
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I love internet pissing contests. Carry on.


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vkhamphi wrote:
I love internet pissing contests. Carry on.


ha ha ha no, i am done.

I am reminded of the quote from Danny DeVito in the War of the Roses playing a lawyer: something like 'When a guy who charges $400 dollars an hour wants to give you some free advice, you should probably listen' ha ha

Just be careful before you ignore the policies of access. Be reasonable. There might be a good reason.


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chopper wrote:
vkhamphi wrote:
I love internet pissing contests. Carry on.


ha ha ha no, i am done.

I am reminded of the quote from Danny DeVito in the War of the Roses playing a lawyer: something like 'When a guy who charges $400 dollars an hour wants to give you some free advice, you should probably listen' ha ha

Just be careful before you ignore the policies of access. Be reasonable. There might be a good reason.


Blah blah blah your such a good lawyer so chopper why can't you quote an internet case. :roll:

Luckily I use $600 / hour lawyer. And who said it wasn't a reasonable request, you don't need a lawyer to determine that to view the Owls is a privilege not a right and as such they should take all consideration not to damage the environment. Maybe you should move to the States where the system almost ground to a stop over nuisance suits and ambulance chasers.


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Metrix wrote:
Blah blah blah your such a good lawyer so chopper why can't you quote an internet case. :roll:

Luckily I use $600 / hour lawyer. And who said it wasn't a reasonable request, you don't need a lawyer to determine that to view the Owls is a privilege not a right and as such they should take all consideration not to damage the environment. Maybe you should move to the States where the system almost ground to a stop over nuisance suits and ambulance chasers.


no, I can quote them, you can't seem to read them. Like i said, it's pointless to bicker with you here. Although if you PM me the name of your $600/hour lawyer, I'd be happy to discuss it with them over the phone when i get out of Court on Monday. I am sure they would get a pretty good kick out of your interpretation of tort law too, he he. Just PM me their name, I would love to talk to them. I'm serious. :lol:

(unless you are implying that the "legal" opinion you give above comes from them, then I am sure they will have a mini-heart attack, ha ha ha I can't wait to talk to him/her!)


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chopper wrote:
Metrix wrote:
Blah blah blah your such a good lawyer so chopper why can't you quote an internet case. :roll:

Luckily I use $600 / hour lawyer. And who said it wasn't a reasonable request, you don't need a lawyer to determine that to view the Owls is a privilege not a right and as such they should take all consideration not to damage the environment. Maybe you should move to the States where the system almost ground to a stop over nuisance suits and ambulance chasers.


no, I can quote them, you can't seem to read them. Like i said, it's pointless to bicker with you here. Although if you PM me the name of your $600/hour lawyer, I'd be happy to discuss it with them over the phone when i get out of Court on Monday. I am sure they would get a pretty good kick out of your interpretation of tort law too, he he. Just PM me their name, I would love to talk to them. I'm serious. :lol:

(unless you are implying that the "legal" opinion you give above comes from them, then I am sure they will have a mini-heart attack, ha ha ha I can't wait to talk to him/her!)


Admit you don't have case law instead of giving us old or even ancient case law. Your admittedly "big meanie" tactics won't work here.

As up to this point the park doesn't have either written posted at entry or verbal discussion saying what the rules for the owls I feel to see the free advice of you could be sued in the unlikely event that a,b,c ... happens. In this case there were no actual "access policies of properties" your points are moot and the advice is worth exactly worth what we paid for it.

Typical lawyer trick to push up the billable hours by only talking to other lawyers :roll:

Of course I'm talking about corporate and patent lawyers I have no interest in your type of law.

I would rather get back to the real issue at hand which is for photographer to be morally and eco responsible to the environment without the need for special laws


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PostPosted: Sun Nov 27, 2011 6:18 pm 
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Logged in to see if i got a PM but i see not.

Too bad, i was really looking forward to sharing a good laugh with your lawyer about your theory of liability in Canada. Oh well, i got a couple hours of sheer amusment last night, so i cant complain too much. Patent and company lawyer? Yeah, so i guess your comment about him or her above was an attempt to make it seem like you had some sort of actual litigation knowledge? He yeah. Although even patent lawyers are taught the Stevenson case as the seminal case for what would evolve to be modern English and Canadian tort law.

Thanks for the laughs. If you dont mind, i may use this thread as a funny example the next time i speak at a legal conference. Sometimes lawyers lose sight of just how clients can get themselves in so much legal trouble. :)

Thanks.

Sorry for any spelling errors. I hate using this ipad keypad.


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PostPosted: Sun Nov 27, 2011 7:10 pm 
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I second the interwebs haterage...

but I second what Chopper is saying. And I'm married to a lawyer to boot

respect the land and environment you're shooting in ppl


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PostPosted: Sun Nov 27, 2011 11:03 pm 
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I have to say, being able to drop the "I am actually a lawyer (and don't just play one on the internets)" is an awesome trump card.


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PostPosted: Sun Nov 27, 2011 11:26 pm 
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chopper wrote:
Logged in to see if i got a PM but i see not.

Too bad, i was really looking forward to sharing a good laugh with your lawyer about your theory of liability in Canada. Oh well, i got a couple hours of sheer amusment last night, so i cant complain too much. Patent and company lawyer? Yeah, so i guess your comment about him or her above was an attempt to make it seem like you had some sort of actual litigation knowledge? He yeah. Although even patent lawyers are taught the Stevenson case as the seminal case for what would evolve to be modern English and Canadian tort law.

Thanks for the laughs. If you dont mind, i may use this thread as a funny example the next time i speak at a legal conference. Sometimes lawyers lose sight of just how clients can get themselves in so much legal trouble. :)

Thanks.

Sorry for any spelling errors. I hate using this ipad keypad.


So you never heard the way to beat a $X lawyer is to use a $X+Y, pretty common tongue in cheek comment in the corporate world.

Sure you can reference the thread as long as you allow me reciprocal use? We none lawyers also need our laughs.


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PostPosted: Mon Nov 28, 2011 10:02 am 
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I'm not a real photographer but I do play one on the internet.


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PostPosted: Mon Nov 28, 2011 11:07 am 
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vkhamphi wrote:
I'm not a real photographer but I do play one on the internet.

Carry on good sir!


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