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The Canadian Bar Association
Complex litigation

The rise of high-stakes global class actions

By Ann Macaulay February 16, 2018 16 February 2018

The rise of high-stakes global class actions

 

Canadian lawyers face greater uncertainty as complex global class actions increase. At a February Ontario Bar Association Institute program, lawyers highlighted cases that have helped to evolve the landscape.

Cross-border class-action litigation has proliferated over the past five to 10 years, said panelist Nadia Campion of Polley Faith in Toronto. Plaintiffs are increasingly seeking to increase the size of their classes by including foreign class members, she said, adding that from about 2010, “the courts were not entirely comfortable with exercising jurisdiction over global classes. But that’s all changed now.”

Campion outlined two significant Court of Appeal decisions, both with many class claimants with no connections to Canada. Excalibur involved a Canadian auditor involved in a private placement of shares and warrants by American owners of a Chinese corporation. The Court of Appeal overruled the lower courts’ denial of certification, ruling that there was a real and substantial connection to Ontario, essentially saying that if class members “have been harmed or potentially harmed by operations of a Canadian entity operating in Canada, then that is sufficient to give rise to a real and substantial connection test under which jurisdiction can be exercised,” said Campion. The key consideration was that courts can exercise jurisdiction over claims against Ontario-based defendants.

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CBA AGM

Moved and seconded: AGM resolutions

By CBA/ABC National February 15, 2018 15 February 2018

Moved and seconded: AGM resolutions

 

This may come as a surprise to more than a few lawyers, but there is no official French version of large parts of Canada’s Constitution, not least of which is the Constitution Act of 1867.

This is a problem for a couple of reasons. For starters, section 55 of the Constitution Act, 1982, requires that a fully French version be prepared “as expeditiously as possible.”

At the time of Confederation a version of the BNA Act was prepared in French.  “That text is out there but it has no official status,” Edmonton lawyer Allan Damer told CBA members gathered at the 2018 AGM.  

A fully French version was later tabled in Parliament in 1990, but was never enacted – this at a time when Canadians were suffering from constitutional fatigue in the wake of Meech Lake negotiations.

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CBA AGM

On the agenda at the AGM: CBA resolutions up for debate

By CBA/ABC National February 15, 2018 15 February 2018

On the agenda at the AGM: CBA resolutions up for debate

 

The Canadian Bar Association’s Annual Meeting is getting under way today in Ottawa. CBA members can access the meeting remotely at hub locations across Canada. They will also have the opportunity to vote on six proposed resolutions that will be up for debate:

We’ll be following the debates here and tracking the results of all the votes. 

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Wills & estate

Posthumously conceived children and succession rights

By Krystyne Rusek February 15, 2018 15 February 2018

Posthumously conceived children and succession rights

 

As a response to advances in reproductive technology, recent changes to Ontario’s parentage laws go a long way to ensuring equal treatment of all parents and children in the province.  Also welcome, are changes to succession laws that now afford rights to posthumously conceived children with respect to the estates of their deceased parents.  That said, it will take some time before we can get the full measure of how the changes will impact on estate planning and administration in Ontario.

The new rules came into effect on January 1st, 2017, with the enactment of the All Families Are Equal Act (AFAEA), which amended the Children’s Law Reform Act (CLRA) and the Succession Law Reform Act (SLRA). 

Prior to that, the parent of a child, for the purposes of succession, was defined as the father or mother of a child.  The terms “father and “mother” have been deleted in the SLRA by the AFAEA, and parentage is now determined in accordance with a set of rules in Part II of the CLRA.

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#MeToo and #TimesUp

We need to hear the marginalized voices of the MeToo movement

By Flora Vineberg February 14, 2018 14 February 2018

We need to hear the marginalized voices of the MeToo movement

 

As the fever pitch surrounding the #MeToo and #TimesUp movements heightens, we find ourselves in a “cultural audit,” examining each social and intimate interaction within which we find ourselves. With sexual assault and misconduct at the epicentre, debate swirls around the power of social movements and the ‘court of public opinion,’ the preservation of bodily autonomy, journalist integrity, the “grey area” of consent to sexual behaviour, the failure of our criminal justice system to appropriately adjudicate sexual assault cases, the clumsiness of dating, and women’s agency and empowerment.

There is reflection on the social mores we’ve come to permit, and the power structures sustaining them. This includes the silence and complicity of individuals who surround each perpetrator, turning away blindly or wilfully while acts of coercion, harassment, assault or misconduct occur. Articles posit questions around the exploitation – mainly by men – of their positions of power, authority or celebrity, used inappropriately, violently or clumsily to (possibly) further their own sexual desires.

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The CBA and the #MeToo campaign

MeToo: Something new to say, or a new way to say it

By Jennifer Taylor February 12, 2018 12 February 2018

MeToo: Something new to say, or a new way to say it

 

Sexual misconduct by men against women is a tale as old as time. What’s new is how two related movements—Me Too and Time’s Up—have quickly become cultural shorthand for telling this story, and proven to have real consequences for those who commit sexual misconduct. The labels Me Too, with its sense of solidarity, and Time’s Up, with its sense of urgency, offer a framework for talking about, and acting on, the complex and longstanding problems of workplace sexual harassment, sexual assault, and gendered power imbalances.

It’s a moment of reckoning.

For lawyers especially, it means reckoning with uncomfortable issues. Like the fact that the justice system doesn’t always provide satisfactory consequences when sexual misconduct occurs. (Or offer much in the way of preventing sexual misconduct before it happens.)

The justice system as traditionally understood doesn’t always find the truth, either, which is one reason Me Too and Time’s Up have been driven by media reporting rather than court proceedings.

These movements prioritize truth. In the justice system, truth is often competing with other values.

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The CBA and the #MeToo campaign

The #MeToo campaign: What are the next steps?

By Samantha de Wit February 12, 2018 12 February 2018

The #MeToo campaign: What are the next steps?

The year 2017 will likely be known to many as the year of #MeToo, a social media campaign intended to bring personal stories of harassment and assault to the foreground of public dialogue.

The campaign began with a single sentence from Alyssa Milano, an American actress, “if all the women who have been sexually harassed or assaulted wrote ‘Me Too’ as a status, we might give people a sense of the magnitude of the problem.” From there it grew into a worldwide movement, with victims of all genders taking a stand against sexual harassment and assault.

The campaign went on to see a number of powerful men “outed” for their inappropriate behavior towards the women, and in some cases men, around them, predominately in workplace circumstances in the entertainment industry, music industry, sciences, academia and politics. 

In America, the predominant focus of the campaign was on the powerful men in the entertainment industry and politics. Time Magazine named “The Silence Breakers”, those that brought their stories of sexual harassment and abuse in America to the forefront, as Time Magazine’s Person of the Year for 2017.

In the United Kingdom, the predominant focus of the #MeToo campaign has been in politics, with “outing” of various political figures. This included stories of asking an assistant to buy sex toys and using sexual slurs towards her, to allegations of pornographic material on work computers.

In Canada, we saw our own version of the #MeToo campaign.

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Cross-border

New U.S. border directive further undermines solicitor-client privilege

By Jacob Marchel February 8, 2018 8 February 2018

New U.S. border directive further undermines solicitor-client privilege

Better assurances and protections are needed for Canadian lawyers crossing the Canada-U.S. border.

Last month U.S. Customs and Border Protection issued a new directive for border searches of electronic devices. It outlines the extent to which U.S. CBP agents can inspect the phones, laptops, etc. of travellers crossing the border. The U.S. Department of Homeland Security justified the measures as necessary to combat crimes like terrorism, human smuggling, and child pornography.

More than just an inconvenience, the directive creates a serious problem for Canada’s lawyers, as it hinders their ability to preserve solicitor-client privilege.

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Legal marketplace

Alternative legal services: A catch-22 for law firms

By Yves Faguy February 7, 2018 7 February 2018

Alternative legal services: A catch-22 for law firms

The recent Thomson Reuters 2017 Alternative Legal Service Study reports that alternative legal services providers (ALSPs) have grown into a $US 8.4 billion global industry:

The largest component of the market consists of independent LPOs and e-discovery and document review service providers, at $6.2 billion. The Big 4’s legal services units and contract lawyer and staffing services have another $900 million in revenue each. Captive LPOs and Managed Legal Services are smaller segments in terms of revenue.

By comparison, the total of all US law firm revenues is about $275 billion, and we estimate total global legal spending to be around $700 billion. ALSPs have clearly not swamped the incumbent players. But at $8.4 billion and growing, ALSPs represent one of the most dynamic segments of the legal services industry and they are likely to continue to play a role as competitors and disruptors for years to come.

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Arbitration

The consequences of ignoring costs submissions in arbitration

By Alexander Gay February 6, 2018 6 February 2018

The consequences of ignoring costs submissions in arbitration

 

How are costs to be handled by an arbitral tribunal?  Legislation in Ontario, as well as in most other Canadian jurisdictions, offers little guidance. After a number of attempts, the international arbitration community has also tried and failed to articulate clear guidelines for arbitrators. 

That’s in part because arbitral tribunals will typically defer to domestic law in making their assessments.  But different jurisdictions have different approaches to awarding costs.  And in Canada, we have few decided cases on the issue. 

There is, however, a new case out of the United Kingdom that speaks to the risks associated with failing to adequately deal with costs in arbitration. It could have some application here in Canada.

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The Supreme Court

The new Chief Justice on not taking our judicial institutions for granted

By Yves Faguy February 5, 2018 5 February 2018

The new Chief Justice on not taking our judicial institutions for granted

On the occasion of his official welcome ceremony, Chief Justice Richard Wagner remarked how, in today’s media environment, there are far fewer reporters assigned to cover the Supreme Court of Canada as their primary beat.

That reality, he says, presents challenges to his court in communicating with Canadians, particularly at a time marked by the explosion of social media, and a growing distrust in institutions.

The Chief Justice has been building up to the theme. Last week speaking at the University of Western Ontario's faculty of law, he promised greater transparency at the Supreme Court, as he announced it will publish plain language case summaries on its website and on Facebook, to help Canadians understand its rulings.

Echoing previous statements made by his predecessor, Beverley McLachlin, he has been warning against taking “our democratic assets” for granted in Canada.

Acknowledging that the Supreme Court building is “an architectural gem,” he was quick to point out that “it is no ivory tower,” and that it belongs to Canadians. "We just work here for them."

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Indigenous rights

Williams Lake: Crown breached fiduciary obligation at Confederation, top court rules

By Mark Bourrie February 2, 2018 2 February 2018

Williams Lake: Crown breached fiduciary obligation at Confederation, top court rules

The Canadian government is responsible for breaches of the obligations of pre-Confederation colonies to Indigenous peoples under federal legislation aimed at resolving land claims, the Supreme Court of Canada ruled in a close decision.

In Williams Lake v The Queen, the court also continued to use its decisions to strengthen the hand of tribunals to determine issues of fact and law, and found “reasonableness” to the standard of review of the Specific Claims Tribunal. This tribunal, made up of superior court judges, determines whether First Nations have property rights to specific piece of land.

In Williams Lake, the Williams Lake Indian Band argued at the Specific Claims Tribunal that the band had lived in a settlement on Williams Lake before the British Crown established a colony in what is now British Columbia in 1858. Legislation enacted by that colony guaranteed Indigenous people that settlers would not take their land.

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