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The Canadian Bar Association

National Blog

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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    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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        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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          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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            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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              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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                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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                  Dear Ministers: The TRC’s calls to action

                  By National May 16 2016 16 May 2016


                    The CBA has followed up its response to the Truth and Reconciliation Commission’s calls to action with a letter to the ministers of Justice, Indigenous and Northern Affairs, and Public Safety, to underline the association’s support for the government’s stated intention to implement of the recommendations.

                    The letter, from CBA President Janet Fuhrer, outlines a number of the actions the CBA has already taken that advance the calls to action, and while those have been enumerated elsewhere, they bear repeating:

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                    Following the Big Four model, Cont'd

                    By National May 16 2016 16 May 2016


                      Lawyers still skeptical about the ability of the Big Four accounting firms moving into the legal services marketplace might like to spend a little time reading this essay by David B. Wilkins and Maria Jose Esteban, which suggests that global law firms in the know are well on their way to exhibiting the sincerest form of flattery, at least from a marketing perspective:

                      Several of the largest and most influential global law firms are now advertising themselves in ways that are indistinguishable from the Big Four’s self-presentation, dramatically underscoring just how much the legal world as a whole has moved to the latter’s terrain. When one adds the fact that the legal world is also shifting rapidly toward emerging markets in Asia-Pacific, Latin America, Eastern Europe, and Africa, where the Big Four already have a significant presence, the potential for the Big Four to carve out an even more dominant position in the global market for corporate legal services becomes even more apparent.

                      Time will tell whether these changes will finally allow the Big Four to achieve their renewed ambition to not only be important players in the global market for legal services but reshape the very definition of that market toward a view that law is simply one part of achieving a “globally integrated business solution.” And it remains to be seen what effect the Big Four’s growing presence in law will have on larger issues of lawyer professionalism, client service, and public policy. For now, we simply conclude by urging both practitioners and commentators to pay greater attention to what these important players are doing—and, equally as important, to what law firms, clients, and regulators are, or should be, doing in response.


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                      Canada's support for UNDRIP: Symbolism as substance

                      By Emily Alderson May 16 2016 16 May 2016


                        Canada is now a “full supporter” of the United Nations Declaration on the Rights of Indigenous Peoples. That was the message from Indigenous Affairs Minister Carolyn Bennett last week, when she announced that Canada is no longer an objector to the Declaration during a speech at the United Nations in New York.

                        Whether the government’s actions will have any lasting impact on the relations with indigenous people in Canada is another matter. In the immediate at least, the change in the policy means little in practice.

                        Still, the Declaration is a wide-ranging document, aimed at protecting the rights of indigenous peoples to equality, self-determination, language, culture, and economic development, among other things. Canada actually endorsed the Declaration in 2010, but the Conservative government at the time called it an “aspirational document” and maintained some objections. It was one of only four countries to vote against the Declaration when it was created in 2007. The other objectors – Australia, New Zealand, and the United States – all removed their objections by 2014. As the last of these holdouts, Canada’s recent announcement was greeted by a rare standing ovation at the United Nations.

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                        BidSettle: Taking the emotions (and lawyers) out of settlements

                        By Yves Faguy May 13 2016 13 May 2016

                          BidSettle is a new online tool that facilitates online settlements by allowing parties in a dispute to exchange  confidential settlement offers and counter-offers. CBA National sat down with its co-founder and CEO, Alexandre Désy (pictured above; the other co-founder is lawyer Philippe Lacoursiere) about using technology to help give people access to legal solutions.

                          CBA National: What gap in the market is BidSettle trying to fill?

                          Alexandre Désy: Well there's a huge gap in the market. Nobody uses legal services anymore except the rich, the poor who can use legal aid, and companies. At the least three quarters of the people don't use legal services anymore. We're trying to help those people help themselves. So a two-day trial will cost you $25,000 to go through the whole process — $50,000 if you take into consideration both parties, and we’re not even [factoring in] the risk and emotional hassle that a three-, or four-year long process will do to you.  So for anything under $60,000, it's not interesting economically to use the justice system.

                          N: How does BidSettle work?

                          AD: If you're getting sued for, say $20,000, the website will ask you what is the maximum that you're ready to give to settle, and to the other party it asks it what's the minimum it’s ready to receive to settle. And if they overlap, we split it in half and the settlements are automatically sent to both parties. It's free to use until a settlement is reached. Then we take 2.5 per cent for both parties. We then give back 15 per cent of our profits to access-to-justice initiatives.

                          N: What kind of cases is it ideal for?

                          AD: Sometimes emotions are involved and you want to preserve a relationship where people need to say I'm sorry; and so there are a lot of situations where BidSettle doesn't apply. But there are also situations where emotions get into the way and where it's better to have an emotionless process, because some people just can't talk to each other. It's only for cases that can be settled for a [dollar] amount.

                          N: How often are settlements reached?

                          AD: We launched [a couple of months] ago, so the stats can't tell us right now with certainty. It also takes time to use the tool because you might not find an overlap right away.


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