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Not the donkey from Winnie the Pooh, but a pair of word endings.

First, –ee.
As in trustee, lessee, mortgagee, bailee, drawee, payee, attendee, mentee and the like.

This ending is common in law, often indicating the indirect object of some action. For example, the person to whom property is entrusted (trustee) or leased (lessee), the person to whom a mortgage is given (mortgagee).

It can also be the direct object of an action: for example, the person you employ (employee) or train (trainee).

So far, so good. But let’s not go crazy. Tippee (person in receipt of an (illegal) stock tip) is well-established, but not really necessary: one could as easily say the tipped or the recipient of a tip.

Worse are attendee, invitee, coachee and mentee. The first is illogical in relation to trustee or employee; the person who goes to something attends it, not is attended. Why not just say guest or participant? Invitee passes the logic test, but it’s rather ugly; here again, guest is preferable. Coachee is unlovely. Refugee, yes – but as for asylee, ugh.

Mentee is the one that really gets your humble scribe’s goat, however. It assumes that the word mentor, from which it is derived, comes from a verb in the way that other –ee words do.

Not so! Mentor is the name of the chap (but really the goddess Athena in disguise) who, in Greek mythology, tutored the young Telemachus while his dad went off to besiege Troy and then sail around the eastern Mediterranean. Mentee assumes that a mentor is someone who ments, but that isn’t a word at all, and certainly isn’t the root of either Mentor or mentor.

Admittedly, the alternatives for mentee aren’t great. I sometimes hear protégé(e), but that sounds at once pretentious and faintly creepy. How about just student, associate or junior?

Now, –or.
Lawyers like this one too: mortgagor, settlor, advisor. In non-lawyer English, -er is just as frequent, and sometimes one can use both (payer, payor). Adviser is perfectly correct (and actually the term of art used in Canadian securities legislation). Sometimes only the –er form is possible (employer).

One thing that has always puzzled me (OK, I may have time on my hands) is the difference in pronunciation between mortgagor and obligor. Under the normal rules of English pronunciation, those Gs before the Os should both be hard (as in gore). But it’s OB-li-gore (hard G) and MOR-gaj-or (soft G). In the US, the emphasis is more usually on the final syllable: mor-gaj-OR and ob-li-GORE but still those inconsistent Gs.

There are, in fact, the older but now less common variants obligeor and mortgager. They have the same legal meanings as their –or equivalents; an obligeor is also ‘a person who performs a service or kindness’. Pronounced MOR-gaj-er and o-BLIGE-er.

Now you know.

Next up: confusing pairs, part 3

Neil Guthrie (@guthrieneil)

 

Marginal notes (also known as head notes) are “the short notations appearing above or beside each section […] of an Act or Regulation” (Sullivan on the Construction of Statutes, 6th ed., §14.59). These notes are intended to help readers identify pertinent provisions in the legislation. The name comes from the fact that they originally appeared in the margins of legislation next to the relevant provisions.

Despite appearing in an act or regulation, marginal notes are not actually part of that legislation. Sullivan is rather disapproving of this:

“Although technically marginal notes are not considered part of legislation, in fact they are physically present and may well constitute the most frequently read component of many Acts and regulations. To ignore whatever light they shed on the meaning of legislation seems artificial and appropriate.” (§14.60)

That said, there are several cases in which marginal notes have been used for legislative interpretation (e.g. R. v. A.D.H., 2013 SCC 28) but this is not uniformly the case. For example, in Imperial Oil Ltd. v. Canada; Inco Ltd. v. Canada, 2006 SCC 46, it says at paragraph 57 “although marginal notes are not entirely devoid of usefulness, their value is limited for a court that must address a serious problem of statutory interpretation.”

Because marginal notes aren’t officially part of legislation, the process of amending them does not necessarily involve an act or regulation. For example, in British Columbia they are amended by the publications staff, not the legislature:

“On this basis, marginal notes are not amended by legislation. They are changed editorially by our publications staff in consultation with legislative counsel. This is done most commonly in conjunction with a legislative amendment to the relevant section, so that the marginal note will better reflect the content of the section.” (A Guide to Legislation and Legislative Process in British Columbia)

This leads to situations in which the only way to know if a marginal note has changed is by looking at the most recent copy of the consolidation produced by that jurisdiction’s Queen’s Printer (or equivalent).

 

For those who need a brief refresher on social media (or an introduction), here is a succinct guide to the various platforms:

A photo posted by Doug Ray (@douglaswray) on


(I would spell that ‘doughnut’, though – and ‘donut eating’ should be hyphenated.)

In terms of how to post information, you might bear the following points in mind.

Choose your distribution channel appropriately
The best social media for business and professional purposes are LinkedIn and Twitter.

Use Instagram and Facebook for pics of vacations, amazing restaurant meals, your kids, the dog.

Manage your presence
If you have a social media presence that is purely personal (vacations, amazing restaurant meals etc.), that doesn’t mean it can be un-professional.

Don’t post things via a non-work account that you wouldn’t want your employer or your clients to see. Everybody has Google, and someone is bound to find those pics of you at the kegger with your pants down.

Don’t reveal confidential client information or say negative things about a client (or your employer). You should also exercise caution in speaking out on public issues that a client may have an interest in – even if this does have the effect of clipping the wings of your commentary. An ‘all views my own’ disclaimer may not be sufficient when someone is upset.

Join appropriate groups on LinkedIn.

Don’t feel you have to accept every LinkedIn connection request. There are a lot of spammers and other opportunists out there. And think about the people you do connect with: it was a bit off-putting when a professional contact of mine connected on LinkedIn (and perhaps elsewhere) with an adult film star. Similarly, adding every legal recruiter in town to your LinkedIn contacts will send a signal.

Keep it short
Twitter famously limits tweeted messages to 140 characters, although there have been rumours that this may be eased. That would be a shame: the beauty of a tweet is its very pithiness, and a word-limit imposes a healthy discipline.

Keep your posts on other platforms on the short side, too. No one is on social media to read the Encyclopaedia Britannica, and most will be looking at your update on a mobile device with a small screen.

Don’t overdo it
Regularly posting updates is an effective way to remind your friends, colleagues and clients that you haven’t fallen off the face of the earth – but no one needs minute-by-minute live-tweeting of you doing document review.

And don’t post for the sake of posting: have something meaningful to say.

Use existing content
Retweet items from trusted sources to your legion of followers. Like or repost updates on LinkedIn.

The only way to build a true personal brand, however, is to post original (and, ideally, thoughtful) content of your own.

Link appropriately
If you are saying nice things about someone, include a link to that person’s LinkedIn profile. Include that person’s Twitter handle or a hashtag with a company name or keyword.

Next time: –ee, –or

Neil Guthrie (@guthrieneil)

 

Researching employment law?  You will be excited to learn about a new employment law resource, bardalfactors.ca.  Designed to be used by lawyers and self-represented litigants, this tool enables you to quickly and easily identify reasonable notice periods for termination and dismissal.

Specifically, the tool allows you to locate cases that have applied the Bardal factors.  What are these factors exactly?  The factors come from the 1960 decision Bardal v. Globe & Mail Ltd. (1960), 24 DLR (2d) 140.  They include age, length of employment, character of employment, and availability of similar employment.  According to the website, the factors:

Represent the starting point in determining reasonable notice.  And since there are over 1,000 rulings from Canadian courts expressly laying out precisely how the factors were applied, everyone – from employment lawyers to employers to employees – can look through the rulings and form a pretty good guess of how a court might rule.

However, bardalfactors.ca cautions that employment law is very complex and the factors are only a basic starting point for determining legal entitlement to notice.  More research is always needed.  The tool is still under development and is available in beta.

[This tip by Alan Kilpatrick originally appeared on the Law Society of Saskatchewan Library’s Legal Sourcery Blog]

 

If I had a dollar for every time he’s heard Good, thanks – and you? in response to How are you?, I’d be writing this from a villa in Tuscany. (Or not writing it all, just sipping Negronis on a deck-chair by the pool.)

The grammatically correct response to how are you? is well, not good. Good traditionally refers to a moral, not a physical or mental, state. I’m good really ought to be confined to situations where you mean you are virtuous, good at something or well-behaved. (And not as a way of saying ‘no, thank you’ to an offer of food or drink.)

Well is both an adjective and an adverb; good is only ever an adjective (or a noun), and therefore it can’t modify a verb.

So, We did good means we effected works of charity and the like, rather than we did a good job. For that, you mean We did well, unless you want to be what Bryan Garner calls ‘unrefined’.

But this appears to be a losing battle: pass me another Negroni.

The battle is entirely lost with the verb to look. Classically, one would have said That colour looks well on you – but you would attract uncomprehending looks if you said that now.

There is still time to win the adverbial battle with constructions like Travel safe or drive clean. Safely and cleanly, please: it’s how you travel or drive, which demands an adverb to modify the verb. (Although drive clean is possibly justifiable if you mean clean as an adjective that describes a drug-free driver.)

Sometimes good is the right choice, however: with taste and smell, for example (where good isn’t so much an adverb as an adjective describing whatever is being sampled). You would use well if you were referring, though, to an expert wine-taster’s skill at sniffing and sipping.

Feel is trickier. Many insist that it’s OK to say I felt bad about having to fire her, but traditionally it’s badly. James Brown may have said I feel good! (and I wouldn’t change that song for all the Negronis in the world), but grammatically it should be well (even if that could also suggest feeling well in the groping sense). We still say I don’t feel well when we’re ill.

Robert Warren Fiske sums it up in his Dictionary of Unendurable English (2011): ‘People who use good where well should be are soulless speakers, hopeless writers.’

Next time: navigating social media

Neil Guthrie (@guthrieneil)

 

This tip was suggested by Marnie Bailey of Fasken Martineau DuMoulin LLP.

Unlike the vast majority of Canadian regulations, you can’t find a consolidated version of the Transportation of Dangerous Goods Regulations on the federal Justice Laws website; instead the Justice Laws website refers you to Transport Canada’s website. While Transport Canada has a copy of the current consolidated version, it does not make previous versions available on its website, so what is a law librarian to do? Head to the Wayback Machine of course!

There is a lovely capture of how the Regulation read right before a major 2016 amendment; this removed a frequently referred to table from part 8.1.

Marnie Bailey

 

You knew this would come up sooner or later.

The simple rule is that who is a subject (Who said that?), whom is an object (To whom is that letter addressed?). The verb to be, you will remember, takes a subjective completion (who) rather than an object (whom).

But it’s a bit more complicated than that.

First, who has largely displaced whom in common usage, to the point where the Oxford English Dictionary admits that it is ‘no longer current in natural colloquial speech’. As a result, one usually hears It’s not what you know, it’s who you know. That really should be whom you know (of course), because you need an object for you know.

On the other hand, people sometimes use whom incorrectly because they think it sounds classier: I’ve actually heard May I ask whom is calling? from someone on the other end of the telephone. And those of a certain vintage may know the line from ‘Should I Stay or Should I Go?’ (1982) by The Clash: ‘Exactly whom I’m supposed to be’. Great song, terrible grammar.

Who and whom can also be what’s called relative pronouns: the man who mistook his wife for a hat but the lawyer whom time forgot. Here again, the subject-object distinction governs.

Another complicating point is that whether it’s who or whom depends on the surrounding words. It’s correct to say I’ll talk to whomever but not I’ll talk to whomever will listen. In the second example, that whomever is wrong because you need a subject for the will listen bit – and that has to be whoever. Similarly, it’s Whomever we hire will work hard rather than Whoever … because you need an object for we hire.

Confused? Take comfort in the fact that Shakespeare got it wrong when he wrote Young Ferdinand, whom they say is drowned – as did the King James translators of the Bible with But whom say ye that I am?  These examples can be readily fixed if you prune the excess words to get at the core of the sentence: in the example from The Tempest, they say is merely a parenthetical remark, the core being Ferdinand, who is drowned; and the verse from Matthew is, essentially, But who am I?

And while we’re on the subject, don’t confuse who’s and whose.  Who’s is short for who is, as in Who’s who?  Whose, on the other hand, is a relative pronoun: Whose book is this?

(And it’s not Who’s whom? – again because the verb to be takes a subjective completion (who, in this instance) rather than an object.)

Week after next: all well and good

Neil Guthrie (@guthrieneil)

 

Each month, the University of Saskatchewan’s Native Law Centre blog features a Case Watch.    The Case Watch is a newsletter of digested aboriginal case law.  It covers all aspects of aboriginal case law including title, rights and Gladue factors.  It is a collaboration of the Native Law Centre and Pro Bono Students Canada – University of Saskatchewan Chapter.

If you are a practitioner of aboriginal law or you closely follow this area of law, we strongly encourage you to check out Case Watch!

[This tip by Alan Kilpatrick originally appeared on the Law Society of Saskatchewan Library’s Legal Sourcery Blog]

 

The word hyphen comes from the Greek for together, which reflects the hyphen’s function as a connector. Dash is descriptive: it’s a bold stroke of punctuation, which can hive things off from each other as well as connect otherwise disparate elements.

The hyphen as connector
English, like German, likes to combine two or more words into one. The Germans just shove them all together, stringing a series of words into one long chain (Rindfleischetikettierungsüberwachungsaufgabenübertragungsgesetz apparently being the longest; it means ‘beef-labelling supervision duties delegation law’, formerly in the statute book of the German state of Mecklenburg-Vorpommern, but now since repealed).

In English, the tendency is to hyphenate compounds, at least initially. When people started to talk about holders of shares a lot, it made sense to make a compound: share-holder. Later (as often happens), the hyphen disappeared and left us with shareholder. Hyphens are also disappearing from words like vice-president, but leaving two words (vice president) rather than one. Fowler’s Modern English Usage says this is actually OK – but doesn’t vice chair sound a bit naughty?

The hyphen tends to stay, however, where its disappearance would leave a pile-up of letters that don’t naturally go together in English or which suggest a weird pronunciation: security-holder and loop-hole are preferable to their hyphen-less versions. Co-operative is better than cooperative for that reason, but unco-operative does admittedly look a bit odd (and gets a red wavy line under it when typed on the screen – not that one should pay unquestioning heed to that). The New Yorker has tried for years to get people to write coöperative, but nobody is buying it.

Hyphens are usual in compound adjectives: pea-green boat, 20-year-old whisky, end-of-year review, red-hot chili peppers (a shame it’s too late to educate Anthony Kiedis about the hyphen). Not using a hyphen can lead to confusion: are you getting extra marital sex or extra-marital sex? Where the first element in a compound adjective is an adverb, the hyphen sometimes disappears:  a well-deserved vacation BUT (probably) a soundly argued factum. The rules on that last point are murky; be guided by common-sense.

I’m of two minds about constructions like second- and third-hand information. Fowler’s Modern English Usage (the Bible for these things) suggests that the first hyphen can go (and may be better from a stylistic perspective than the alternative second-hand and third-hand information). There may be times when you’d want to keep it, though, for the sake of clarity: the meaning changes if you drop the first hyphen in This book is intended for the ill- and well-educated.

Another common use of the hyphen is for compound surnames. This used to be a posh thing, where the surname of a wife or relation was added in order to inherit that person’s property (the most elaborate example is Temple-Nugent-Brydges-Chandos-Grenville). It’s now an egalitarian thing, so kids get both their parents’ names. Sometimes the hyphen is omitted in these formations, which can lead to confusion: is that a middle name or part of the family name?

The dash
The dash has many uses, and as many—or more—misuses. Chief among the uses is to add a parenthetical phrase in the middle of a sentence, by way of explanation or for emphasis. If you hadn’t noticed, there is an example of in the opening sentence of this section. You can also do it at the end of a sentence, for emphasis—as I’ve just done now. Go easy, though: too much emphasis de-emphasises.

A bit of typography
The hyphen is one short stroke, like so: –

There are two types of dash: the ’em’ dash (—)and the ‘en’ (–), so-called by printers because they are the length of the bits of metal type used for printing the letters M and N respectively. (They are also called the long and the short dash.)

For purists, the en dash is used to separate date ranges (18371901) and connected or contrasted pairs of words (the North­South divide). The em dash is reserved for breaks in sentences. There should be no space on either side of a dash.

In the days of the manual typewriter, the em dash was rendered with three hyphens (—), the en with two (–). Typography nerds decry the continuation of this practice in the digital era, but you may have to resort to the ‘special characters’ menu to get the em dash, or figure out some combination of option and shift keys (which eludes me). In common usage, most people use a hyphen for date ranges and word-pairs, an en dash for sentence-breaks (your computer will generally convert two hyphens into the latter).

Next: who and whom

Neil Guthrie (@guthrieneil)

 

The trouble with using keywords when searching case law case law is that you can end up with a lot of false hits, particularly in situations where your search terms have multiple meanings or are commonly used. One solution is to limit your search to digests or headnotes. When you search digests or headnotes, it increases the probability that your search terms will return a relevant case. Limiting your search to a specific category of cases (e.g. bankruptcy and insolvency) is also a good way to reduce the number of false hits.

Susannah Tredwell