The Power of Perspectives

The Canadian Bar Association

Temporary foreign workers rules: In need of a rethink

By Doug Beazley May 27, 2016 27 May 2016

Temporary foreign workers rules: In need of a rethink


Every lawyer working in the immigration field has a story to tell about the Temporary Foreign Worker program and the Labour Market Impact Assessment system. Few seem to end happily.

“I represented a medical clinic,” says Barbara Jo Caruso, co-founder of the Toronto-based Corporate Immigration law firm. The clinic had a specialist — an immigrant — employed on a work permit. The clinic’s owner-operator wanted to keep him, so he applied for a Labour Market Impact Assessment — the federal government’s tool for ensuring qualified Canadians get first crack at any job openings.

The owner-operator, says Caruso, jumped every hurdle in the application process, but mistakenly left some minor pieces of information off the job ad posted on his website — a tiny error that caused his entire application to be turned down.

“So this professional’s work permit expired, his patients had to go and find another clinic and his employer had to re-advertise everything,” says Caruso. “The employer was audited. He lost seven months. He lost patients, his patients lost the services of a professional they’d grown to depend on.”

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Resource development

Duty to consult: A patchwork of requirements

By Justin Ling May 27, 2016 27 May 2016

Duty to consult: A patchwork of requirements


If there is one observable trend in energy projects from recent years, it’s consultation.

Community outreach, stakeholder engagement, environmental impact assessments — while a litany of would-be energy projects were felled by a lack of robust consultation with the people potentially affected, the resource and energy sectors are clearly shifting to consulting first, building later, after years of doing the very opposite.

One piece of the puzzle, however, has remained elusive: the duty to consult Aboriginal populations.

Even socially-conscious enterprises that go to great pains to get a social license from Indigenous communities that feel the impact of their projects have found themselves facing headwinds, for a litany of reasons.

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International arbitration

Have we hit peak arbitration?

By National May 25, 2016 25 May 2016



According to this 2015 international survey, arbitration remains by far the preferred method of resolving cross-border disputes.  However, the mechanism is not without its share of critics:

We also asked respondents what they perceived as the worst characteristics of international arbitration. “Cost” was by far the most complained of characteristic, followed by “lack of effective sanctions during the arbitral process”, “lack of insight into arbitrators’ efficiency” and “lack of speed”. The common denominator of these characteristics is that they relate to the internal workings of the arbitral system which can be influenced by its stakeholders. Factors such as “lack of third party mechanism” or “national court intervention”, which are not within the control of stakeholders, were listed markedly less often.

Part of the problem is the perception that international arbitration is becoming more complex and judicialized, giving way to concerns that some its traditional advantages, namely efficiency, speed and costs, are under threat.

Klaus Peter Berger and J. Ole Jensen address the question of whether litigants might turn away from international arbitration in favour of alternative methods or even national legal systems:

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Celebrities and privacy injunctions: Is there any point?

By National May 24, 2016 24 May 2016


The UK’s Supreme Court has allowed an injunction to continue against publishing details of a celebrity affair  – information that can easily be found on Canadian, U.S. and Scottish websites. By a 4 to 1 majority the court overturned a ruling by the Court of Appeal, raising questions about the spread of information through social media and how to treat privacy rights where material has become widely available to the public.

Louise Berg and Michael Skrein, reacting to the ruling, worry that the UK’s top court has left itself exposed to criticism that it is out of touch (criticism that the court itself has preemptively acknowledged):

The Supreme Court is bound to be criticised for allowing protection for this story to continue. Although many will agree that there was no true 'public interest' in the story being published, there will be real questions over whether there was any point in allowing the injunction to remain in place. Anyone who is interested in celebrity gossip has known for months who the injunction was about, and so it is, to a great extent, worthless.

But PJS knew about the widespread disclosures, and still fought tooth and nail to preserve the injunction. He clearly thought it still had value. It is obvious that he is a wealthy man, and maybe he just didn't like to lose. However, perhaps his determination is an endorsement of the Supreme Court's view that it is far worse to have the gory minutiae of your private affair splashed over the printed press, TV and internet in your home country, than it is to have names and sketchy details available on foreign websites.

Inevitably though, the Supreme Court will be accused of failing to acknowledge the realities of a connected and globalised media landscape.

They point to this passage from the dissenting opinion:

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The profession

Re-thinking lawyer discipline : Taking a risk-based approach

By Emily Alderson May 24, 2016 24 May 2016


In Canada today, lawyer discipline is largely complaint-based and reactionary. Yet there is data that tells us where complaints are mostly likely to arise. Adopting a risk-based regulatory approach would help law societies turn that data into preventative action.

Two academic studies from Australia have examined trends in complaints against lawyers. Both found that gender, age and practice type correlate with the risk of complaints being made. Linda Haller and Heather Green found that male solicitors were almost three times more likely to undergo a disciplinary hearing than a female solicitor.

In a separate paper, Francesca Bartlett suggests that this is because fewer women have gained seniority in the legal profession. Complaints tend to be filed against older solicitors. The same holds true in Ontario: last year, lawyers in practice more than 30 years made up 20 per cent of the profession but accounted for 30 per cent of complaints.

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The challenge of regulating blockchain

By National May 20, 2016 20 May 2016


Toby Thwaites sizes up how regulators are grappling with the emergence of cryptocurrencies:

Janet Yellen stated that the Federal Reserve would not be seeking to inhibit the current levels of innovation and that the central bank does not have the authority to regulate digital currencies and its variations including the likes of Bitcoin. The SEC on the other hand appears to be focused on ensuring that investors in the marketplace are protected from potential instability that could arise from the application of new financial technologies. The Federal Reserve Bank of St. Louis and the Bank of England are considering the option of a central bank operated digital currency.

With this being said it must not be forgotten that despite the high level of market activity in the financial services industry we are still in an elementary phase, where there is a lack of standardisation across the sector among the major players

Andreas Gustafsson notes that financial regulators have plenty to gain from regulating blockchain, the technology behind bitcoin, and public databases known as distributed ledger technology (DLT):

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Medically assisted dying

Bill C-14’s future appears anything but certain now

By Justin Ling May 19, 2016 19 May 2016

Bill C-14’s future appears anything but certain now



Legislating medical assistance in dying was never going to be easy.  That much is clear now.

Following the top court’s ruling in Carter v. Canada, a joint committee of parliamentarians met with a list of expert witnesses — from the Quebec Barreau, constitutional scholar Peter Hogg, a litany of medical groups, representatives of faith and minority groups, family and trust lawyers like David Baker, and dozens of others.

Between the Supreme Court ruling and that committee report, the government had what appeared to be clear guidance on what the bill ought to look like.

Fast forward to present day, where an Alberta court has essentially fired a pre-emptive strike against the draft legislation, Bill C-14, for failing three unique tests.

The Alberta Court of Queen’s Bench got there in a roundabout way, in deciding an appeal from the Superior Court. A disabled patient, referred to simply as E.F, filed a constitutional exemption to have her life ended by a physician. The Attorney General fought that application for two main reasons — they argued that E.F. was not terminally ill, and that her illness is rooted in “a psychiatric condition.”

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Internet law

Reverse class actions: The next step in the fight against copyright infringement?

By National May 19, 2016 19 May 2016


Daniel Daniele remarks that legal action recently launched in Federal Court by U.S.-based movie company Voltage Pictures seeking certification of a reverse class action is a harbinger of more sophisticated attacks to come in the fight against copyright infringement:

As the courts continue to grapple with increasingly complex legal issues surrounding the balance between intellectual property and privacy, it is becoming clear that anonymity of online users may have its limitations. In some cases, the privacy rights of individuals will have to yield to the rights of IP holders who are vigilant in protecting their assets.

The lesson learned from the Voltage cases is that as the Internet and its users continue to become more sophisticated, companies may need to consider new and creative strategies to protect their innovations.

Cost is also clearly a consideration for Voltage in adopting this unusual strategy. Here’s an excerpt from its application:

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Gender identity

Bill C-16: Once more unto the breach

By Kim Covert May 18, 2016 18 May 2016


Justice Minister Jody Wilson-Raybould introduced Bill C-16 on Tuesday, a piece of proposed legislation that will, if passed, amend the Canadian Human Rights Act to add gender identity and gender expression to the list of prohibited grounds of discrimination and amend the Criminal Code to “extend the protection against hate propaganda set out in that Act to any section of the public that is distinguished by gender identity or expression and to clearly set out that evidence that an offence was motivated by bias, prejudice or hate based on gender identity or expression constitutes an aggravating circumstance that a court must take into consideration when it imposes a sentence.”

It’s not the first time that this kind of legislation has been tabled in Parliament – in fact, it’s the seventh, over the course of a decade – but it’s the first time that a sitting government has done so, which increases the likelihood that something will actually be accomplished this go-round.

Prime Minister Justin Trudeau made his government’s intentions clear in the Justice Minister’s mandate letter last fall, setting as one of her priorities to “introduce government legislation to add gender identity as a prohibited ground for discrimination under the Canadian Human Rights Act, and to the list of distinguishing characteristics of ‘identifiable group’ protected by the hate speech provisions of the Criminal Code.

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CBA influence

GIC appointments? We have a problem

By National May 18, 2016 18 May 2016


The CBA is eagerly anticipating an engagement with the current government on Governor in Council appointments – in fact, as CBA President Janet Fuhrer said in a recent letter to Prime Minister Justin Trudeau, it’s been ready to go for 26 years.

The CBA commissioned Ottawa University law professor Ed Ratushny to look into the problem of GIC appointments. He submitted his report, Task Force on the Independence of Federal Administrative Tribunals and Agencies in Canada, in 1990.

“The Ratushny report identified concerns that the piecemeal approach to federal tribunals, boards, agencies and commissions created ‘too many gaps and too many opportunities for abuse’,” Fuhrer says in the letter.

The report underlined the need for a statute to establish standards of independence for appointments, and made recommendations for reform on issues such as methods of appointment, tenure, remuneration, accountability, budgeting and training.

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Equal rights

Restoration of queer dignity: Toward a more just society

By Michael Motala May 17, 2016 17 May 2016


Today, the Minister of Justice is poised to introduce amendments to the Criminal Code and Federal Human Rights Act in a historic legislative effort aimed at protecting gender identity. Canadian Prime Minister Justin Trudeau’s recent promise to pardon Everett Klippert, the last man convicted of gross indecency, also starts an important, and long overdue, national conversation about the redress of queer injustice. Canada has a checkered history of homosexual regulation, circumscribed by the enforcement of sexual and gender norms, as well as unjust discrimination outside the criminal law. The queer community’s calls for a formal apology have gone unheeded by successive federal governments. Fatefully, political context has shifted.  

What is the appropriate scope for the government’s acknowledgment and redress toward the queer community? Should state-authorized action, through Canadian ministries and state agents—administering residential schools, enforcing institutional discrimination in the military and public service, and enforced with heavy-handed police tactics—factor into the conversation?  

The history of gender and sexual regulation in Canada points to numerous examples where the law and state-authorized action targeted men and women, both cis and trans, of every race and class, as well as aboriginal populations. Viewed comprehensively, there was a coherent policy aimed at oppressing and criminalizing same-sex conduct through heteronormalization. Persecuting homosexuals was first a tool of European conquest and then a form of aboriginal assimilation. Canadian policy toward indigenous populations in residential schools, for example, oppressed the two-spirited identity in aboriginal culture.

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The judiciary

Legislating a bilingual Supreme Court

By National May 17, 2016 17 May 2016


Last year CBA National published a piece by Justin Ling exploring whether legislating a requirement to make bilingualism mandatory for judges appointed to the Supreme Court would survive a constitutional challenge. The prevailing view was that it would not:

Lynne Watt, a partner in Gowlings’ Ottawa office, sees some grey area, but broadly agrees that bilingualism may be well outside the unilateral power of Parliament. “I could hear an argument being made that it unreasonably narrows the pool of candidates, and that’s trenching on the composition of the court,” she says.

The Nadon reference appears to bear that out. “Any substantive change in relation to those eligibility requirements is an amendment to the Constitution in relation to the composition of the Supreme Court and triggers the application of Part V,” wrote Chief Justice Beverley McLachlin, writing for the majority.

That, coupled with the Senate reference and a general lack of enthusiasm for constitutional reform, means that we’re unlikely to see bilingualism become an essential eligibility requirement for appointment to the top court in the near future.

In the reference, the court held that a change to its composition of could only be made by a unanimous constitutional amendment under s. 41 of the Constitution Act, 1982

But in a recent post, Sébastien Grammond takes the opposite view, arguing somewhat counter-intuitively that Parliament could make bilingualism an eligibility requirement to sit on the top bench:

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