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Norway's turn to face a climate lawsuit

By CBA/ABC National October 19 2016 19 October 2016

    In June, Norway became the first developed country to ratify the Paris Agreement. Now environmental groups are suing its government for violating the climate treaty by forging ahead on oil exploration plans in the Barents Sea. The fight centers on Norway’s decision in May 2016 to award 10 new drilling licenses to oil companies. That decision, the plaintiffs say, goes against Article 112 of Norway’s Constitution, which reads:

    Every person has the right to an environment that is conducive to health and to a natural environment whose productivity and diversity are maintained. Natural resources shall be managed on the basis of comprehensive long-term considerations which will safeguard this right for future generations as well.

    The legal writ, published online, acknowledges that there is little precedent in the Norway for invalidating decisions under Article 112.  Nonetheless, here’s how the plaintiffs intend to argue their case:

    The presumption principle, which calls for Norwegian law to be interpreted in accordance with international law, makes international law rules and fundamental principles of international law a part of our national legal system. This means that the Climate Convention, the Paris Agreement and international human rights and environmental principles are relevant sources of law when the limitations in Article 112 of the Constitution are to be determined.

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    Malcolm Rowe nominated to the Supreme Court of Canada

    By CBA/ABC National October 17 2016 17 October 2016

      In a move that maintains the regional representation on the top court, Justin Trudeau has nominated Justice Malcolm Rowe, a first for Newfoundland & Labrador, to the Supreme Court of Canada to replace retiring Justice Thomas Cromwell.

      Justice Rowe comes from the Supreme Court of Newfoundland and Labrador (Court of Appeal). As a practitioner before that, he focused primarily on constitutional matters, foreign relations, and the arbitration of maritime boundaries.  He participated in the negotiations that led to the end of the ''turbot war'' and the agreement at the UN for a new convention on high seas fisheries

      The appointment leaves the gender balance of the court unchanged at five men to four women. This is the first nomination by the federal government under its new Supreme Court open application process.  For further insight into Justice's Rowe's background and ideas, you can read his application questionnaire here:

       

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      Fintech: Rethinking the rules of financial services

      By Mark Bourrie October 17 2016 17 October 2016

         

        Fintech companies are telling the Competition Bureau that they want a new regulation regime because it would strengthen trust in their businesses. “Building trust is extremely important in the financial services sector, in particularly in regards to access to banking, which is usually more conservative,” Vicky Eatrides, the deputy commissioner of the Competition Bureau’s Competition Promotion Branch told lawyers at the CBA’s Competition Law fall conference in Ottawa last week.

        The federal government has plans to introduce new regulations for the online financial services, or fintech, sector once it hears from business and other stakeholders.

        Eatrides said the new rules must balance consumer protection with the federal government’s policy of fostering greater competition and innovation.

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        Access to justice: Part of a lawyer’s ethical responsibilities?

        By Kerri Froc October 14 2016 14 October 2016

           

          Lawyers are invested in access to justice.  Many see pro bono work as part of their obligations as a member of the profession.  Others build access to justice, such as providing unbundled legal services, into the day to day operations of their law firm.

          But, should access to justice be built in as part of a lawyer’s ethical responsibilities and regulated by law societies?

          The CBA’s Access to Justice Committee’s report, Equal Justice: Balancing the Scales, suggests that law societies could enhance access to justice in a number of ways.  For instance:

          • The Federation of Law Societies could include an access to justice component in its competency requirements for new lawyer licensing;
          • Law societies and the Federation of Law Societies could include access to justice in their codes of conduct;
          • The Federation of Law Societies could require experiential education and/or access to justice in the law school curriculum in order to be called to the bar following law school.

          Can we – should we – foster access to justice through lawyer regulation?

          Join the CBA’s next Twitterchat, Can Regulation Advance Access to Justice?, as part of Access to Justice Week organized by TAG - The Action Group on Access to Justice. Hosted by Amy Salyzyn (@AmySalyzyn), a professor from the University of Ottawa, she is an expert in legal ethics, who is currently researching innovative ways to foster access to justice.  How can law societies help strengthen the link between access to justice and lawyers’ ethical identity?

          Tune into #cbaa2j #a2j2016 on Tuesday, October 18 at 12:00 p.m. ET to join the conversation and find out.

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          Worldwide injunction or worldwide censorship?

          By Justin Ling October 14 2016 14 October 2016

            Does the world always need more Canada?

            It’s a question the Supreme Court will have to consider in December when it hears Google v. Equustek, an appeal of B.C. ruling upholding an extraterritorial injunction ordering Google to remove certain websites from its search engine.

            It is one of the noteworthy appeals highlighted by the Chief Justice at the CBA Canadian Legal Conference in August. The case centers around just how far Canadian courts can go in order internet companies, such as Google, to suppress or remove information from the internet.

            Both the B.C. Supreme Court and the B.C. Court of Appeal approved an injunction requested by Equustek, a manufacturing company, against Google, which was indexing pages containing Equustek trade secrets and counterfeited versions of their products.

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            Legal challenges to triggering Brexit

            By CBA/ABC National October 13 2016 13 October 2016

              Does it take Parliament’s approval to trigger article 50 to notify Britain’s withdrawal from the Treaty on European Union (TEU)?  According to Theresa May’s government, lawmakers need not vote on the matter.  But opponents to Brexit have filed a legal challenge arguing that it should have a say in determining the future of Britain’s relationship with the EU. The UK High Court begins hearings this week:

              From the Guardian:

              The case could open deep rifts in the consensus over the UK’s unwritten constitution. If the judges concluded that MPs should decide, the majority might not be in favour of leaving.

              The government maintains that the decision to depart has been taken by the referendum on 23 June and that its executive powers, under the royal prerogative, are sufficient for David Davis, the Brexit secretary, to give notice on behalf of the cabinet.

              At stake is whether the government can skip introducing legislation on formally leaving the EU.  Though the British Prime Minister recently took a hard stance on Brexit, a parliamentary vote would allow lawmakers the opportunity to shape the country’s withdrawal from Europe and replace membership in the EU with something more palatable to Remainers.

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              How to enforce the Paris Agreement

              By Supriya Tandan October 11 2016 11 October 2016

                Last week, the federal government formally ratified the Paris Agreement. The year 2023 will mark the first time international progress for greenhouse gas emission reductions under the agreement will be evaluated and whether nations have met their climate commitments. So what if signatory countries are unable to keep their promises?

                While the treaty requires countries to report on their progress, the targets themselves are not legally binding.

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                Don’t axe the LPP program yet

                By CBA/ABC National October 11 2016 11 October 2016

                  Ian Holloway writes that it’s too early to give up on Ontario’s Legal Practice Program, calling it among the most innovative program to train lawyers in the last 70 years, citing Ryerson’s Legal Innovation Zone as one of the main beneficiaries:

                  What, then, was the problem? Why the recommendation to can the LPP? If, as the PD & C Committee said, the LPP might actually be a better educational product than articling, then why on earth should we want to get rid of it?

                  The answer, in a word, is brand. PD & C’s report noted that the majority of LPP students “appear to consider the LPP alternative as a second choice or, indeed, no choice at all.” And the fact is they were right. It’s true that today’s law students, if given a choice, would article rather than enrol in the LPP. Of course, they would, for that is the system by which almost every lawyer in Canada was trained. So it’s what seems reflexively “normal” to us. Moreover, the legal employment market is, to a significant degree, built on the idea of a year-long job interview.

                  Given this, how could anyone imagine that a set of professional biases as deeply ingrained as these could be undone in three years? For Heaven’s sake, that is less time than it takes many lawsuits to get to trial!

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                  CBA: Privacy Act should should require government to protect personal information

                  By CBA/ABC National October 11 2016 11 October 2016

                    The Privacy Act and the Access to Information Act are two pieces of federal legislation whose time has come – to be amended.

                    The federal Privacy Commissioner sent the government a letter outlining 16 changes that he believes need to be made to the Privacy Act. The CBA’s Privacy and Access Law Section agrees with most of those changes – in fact it has made many of the same recommendations over the past decade or more. And it doubles down by saying the Access to Information Act – which, like the Privacy Act, has not been substantially changed in 34 years – must be amended at the same time. “Both statues have been treated as a package since they were enacted and there are compelling reasons to continue doing so,” the Section says.

                    In its submission, presented to the Standing Committee on Access to Information, Privacy and Ethics in late September, the Section notes that the review must also address the “supporting infrastructure.”

                    (Hear more from Gary Dickson, who appeared before the Committee for the CBA.)

                    “More than 30 years of experience with access and privacy laws in Canada dictate that we cannot achieve a truly robust set of information rights if we focus exclusively on the enabling statute,” the submission says. “The access and privacy infrastructure includes the role and work of the Treasury Board, the role and work of ATIP Coordinators, the Open Government initiative and a host of administrative and procedural matters that directly and indirectly affect individuals asserting their information rights under either or both statutes.”

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                    Time to act on pay equity

                    By CBA/ABC National October 11 2016 11 October 2016

                      In February the federal government established a special committee on pay equity, and in June, as required by its mandate, that committee tabled a report on its findings, titled It’s Time to Act?

                      The second recommendation of that report is that the government take its time drafting pay equity legislation – a generous 18 months.

                      Recommendation #3 is that the new legislation “accept the overall direction of the 2004 Federal Pay Equity Task Force report and that the majority of the recommendations be adopted.”

                      So to recap: a 1956 federal law requiring equal pay didn’t close the gender wage gap. Neither did the 1977 law establishing a complaint-based system for equal pay for work of equal value. In 2016 a special committee suggests the government get around to drafting proactive legislation based on a report tabled 12 years ago that said it was time for women to be paid the same as men for work of equal value.

                      It’s time to act, indeed.

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                      Reactions to Ottawa’s national carbon pricing plan

                      By CBA/ABC National October 7 2016 7 October 2016

                        Jason Kroft, Jonathan Drance and Luke Sinclair size up the federal government’s plan to put a price on carbon:

                        While Trudeau’s Plan emphasized consistency between the provinces and suggested using existing regimes, such as British Columbia’s carbon tax or Ontario’s cap-and-trade, as policy anchors, the Plan doesn't yet adequately account for the fundamental differences between the two methods. The Plan also doesn't yet connect the proposed pricing floor with Canada’s commitments under the Paris Agreement at least not in any tangible way. For example, Alberta’s carbon pricing proposal, embraced by Trudeau’s Plan, aims to keep emissions flat until 2030, a far cry from the required 30% reduction under the Paris Agreement.

                        Richard Corley, Daniel Gormley and Catherine Lyons explain some of the impracticalities of transitioning to a low-carbon economy in Canada:

                        The pre-existing provincial carbon pricing models, together with the dim prospects for federal/provincial unanimity on carbon pricing, seems to have tied the federal government’s hands and to have made both the unilateral federal announcement and the return of all carbon revenues to the provinces and territories, necessary elements of the federal model. As a result, further federal action on climate change will have to be regulatory in nature and/or be funded from revenues other than the price on carbon. As the recipients of the carbon revenues, the provinces and territories will have the financial resources, and responsibility, to continue to take on a central role in achieving Canada’s climate change commitments. Under this decentralized model, it may also be more difficult for the federal government to implement carbon border adjustments (for example, as were contemplated by the ill-fated U.S. national (Waxman-Markey) cap and trade bill) which could become a more significant concern as the price on carbon continues to rise.

                         

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                        Being a mentor - it's good for you too

                        By Carolynne Burkholder-James October 7 2016 7 October 2016

                          Having good mentors can be key to a young lawyer’s success. But Stephanie Okola, a Toronto-based lawyer and mediator, says that the mentors themselves can also benefit from this relationship.

                          Okola, who specializes in litigation at Okola Law, says that her experiences as a law student and junior lawyer inspired her to mentor others.

                          “I completed my law degree outside of Canada and then came back and qualified to practise law in Ontario,” she says. “Without mentorship, that process would have been impossible for me.”

                          Okola now uses this experience to help others who are going through the same process.

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