The Power of Perspectives

The Canadian Bar Association

National Blog

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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                  Decrypting the government's intentions

                  By Justin Ling October 6 2016 6 October 2016

                     

                    When Bill C-30 was tabled by then-Justice Minister Vic Toews in 2012, it was considered one of the most aggressive lurches towards lawful – authorizing law enforcement to intercept private communications – in recent Canadian history.

                    But there was one clause that, at the time, may not have seemed terribly significant. But, now, it raises questions around reasonable expectations of security, the limits of police power, and cyber security.

                    “If an intercepted communication is encoded, compressed, encrypted or otherwise treated by a telecommunications service provider, the service provider must use the means in its control to provide the intercepted communication in the same form as it was before the communication was treated by the service provider,” C-30 reads.

                    Bill C-30 never did become law as the then governing Conservatives pulled it in 2013 in the face of bad publicity targeting the warrantless mandatory disclosure of basic subscriber information, and provisions forcing telecommunications service providers to build intercept capabilities. Several provisions contained in bill C-30 later wound up in the cyberbullying bill, C-13.

                    Now as the Liberal government carries out public consultations on national security, there are once again hints about possible changes to expand warrantless access provisions in Canadian law.

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                    MLT Aikins: Western Canada’s law firm

                    By Yves Faguy October 6 2016 6 October 2016

                       

                      In 2017, Saskatchewan’s largest law firm, MacPherson Leslie & Tyerman, will merge with Manitoba’s leading firm, Aikins MacAulay & Thorvaldson, to form MLT Aikins LLP in what is being billed as Western Canada’s law firm.  CBA National caught up with Don Wilson (pictured above), managing partner of MLT and incoming managing partner of the new entity to ask him what was behind the tie-up.

                      CBA National:    What were the main drivers for the mergers?

                      Don Wilson: There were two imperatives in our growth. One, we wanted to stay in Western Canada because we felt that was our sweet spot. Those were the people and businesses we understood. Secondly, we decided we would never grow in any fashion that jeopardized our culture. Lots of firms talk about it; we actually live it. We have this team approach to things. Nobody says “my client.” We all operate out of the same profit pool. We don’t have a head office mentality. So we wanted to be careful and measured in doing it because of culture.

                      N: So why Aikins?

                      DW: Well we have known and respected Aikins forever. I’ve certainly talked to their managing partners and senior people over the years. It sounds counterintuitive, but we also felt the best way to solidify our credibility of the claim of Western Canada’s law firm, was to add the fourth western province to our team. We felt the best way for us to grow in Alberta and BC was to do this with the preeminent Manitoba firms. Obviously they dominate in Manitoba, we have continued strength in Saskatchewan. Aikins also has significant contacts in Alberta and BC and now we can go to those marketplaces with 250 lawyers with wide variety of bench strength and expertise. From Aikins’ perspective, about a year and a half ago when they heard about our BC move, they were looking at redesigning their playing field. They loved the Western Canada firm concept.

                      N: Why is that western identity so important?

                      DW: The Canadian economy is, generally speaking, a commodity based economy right across the West. Everyone in Canada understands the oil patch largely in Alberta. But I don’t think they fully understand that commodities go way beyond that. There’s obviously forestry, uranium, potash, hard rock mining of all sorts. There is a common thread to the businesses in these provinces.

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                      PNG LNG: Where do we go from here?

                      By Supriya Tandan October 4 2016 4 October 2016

                        Last week, against the backdrop of a calm B.C. Coast, the Minister of Environment and Climate Change (“the Minister”), announced that the Federal government is approving the $11 billion Pacific NorthWest LNG Project, subject to over 190 legally binding conditions.

                        It remains to be seen whether the project is still economically viable. However, if it does go ahead the Pembina Institute argues the BC Government will be incapable of meeting its own legislation-mandated targets for reductions in greenhouse gas emissions.

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                        Let the children go: The detention of immigrants is hard on the kids

                        By CBA/ABC National October 4 2016 4 October 2016

                          Children don’t belong in detention.

                          That’s the message the CBA along with nearly 400 other signatories sent to the government in an open Statement Against the Immigration Detention of Children, published on Tuesday.

                          The statement follows on the heels of a report out of the University of Toronto International Human Rights Program that “uncovers the deficient legal underpinnings and detrimental practical implications of child immigration detention in Canada.”

                          An estimated 242 children were detained in Canada each year between 2010 and 2014 – children who arrived in Canada alone, or with parents who might have been detained for immigration-related reasons.

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