The Power of Perspectives

The Canadian Bar Association

National Blog

Does digital piracy really hurt sales?

By Yves Faguy March 20 2013 20 March 2013

    It depends on who you ask. Two interesting studies have come out recently on the impact of digital piracy. A recent study by the European Commission’s Joint Research Centre has found -- for the time being at least -- that piracy doesn't hurt digital music sales (more after the jump).

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    Should NAFTA partners and the EU start TAP dancing?

    By Cyndee Todgham Cherniak March 18 2013 18 March 2013

      Since President Obama announced that the United States would commence negotiations of a free trade agreement with the European Union and the Canada-EU CETA negotiations appear to be at the breaking point, questions arise about whether the negotiating table is about to get a whole lot longer.

      Some are asking whether the Canada-EU Comprehensive Economic and Trade Agreeement ("CETA") negotiating table is going to add additional sections and a large number of chairs to accommodate representatives from the United States (including representatives from each State) and representaitves from Mexico.  If the hard issues in the negotiation of the Canada-EU CETA are not resolved soon, will the EU propose a Trans-Atlantic Partnership ("TAP"), modeled on the Trans-Pacific Partnership ("TPP") (also referred to buy some as a potential Trans-Atlantic Free Trade Agreement or "TAFTA")?

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      Fighting Foreign Corruption Act

      By Yves Faguy March 8 2013 8 March 2013

        The CBA’s anti-corruption team appeared on Wednesday before the Senate Committee on Foreign Affairs and International Trade to endorses the government’s efforts to crack down on foreign corruption and to propose improvements to Bill S-14, Fighting Foreign Corruption Act, which aims to strengthen the current Corruption of Foreign Public Officials Act (CFPOA). We caught up with Michael Osborne, a partner at Affleck Greene McMurtry and a member of the team to explain the proposed changes and share with us the CBA's position.  


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        Adapting to a disruptive new model

        By Yves Faguy March 8 2013 8 March 2013

          Now The Economist picks up on the theme of the sharing economy and some of the legal challenges it faces:

          As they become more numerous and more popular, however, sharing services have started to run up against snags. There are questions around insurance and legal liability. Some services are falling foul of industry-specific regulations. Landlords are clamping down on tenants who sub-let their properties in violation of the terms of their leases. Tax collectors are asking whether all the income from sharing schemes is being declared. Meanwhile, the big boys are moving in, as large companies that face disruption from sharing schemes start to embrace the model themselves. As the sharing economy expands, it is experiencing growing pains.

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          Taking up the challenge

          By Robert Brun March 7 2013 7 March 2013

            One of the great joys of my year as president has been visiting our branches across the country. It’s a terrific opportunity to meet members face-to-face and reinforce the ties that bind us as an association.
            Whether I’m in Nunavut or Alberta, New Bruns­wick or Manitoba, I am always impressed by the work our branches do to advance the work of the CBA. The access to justice file is just one example.
            As you have heard, the CBA has launched a two-year national initiative aimed at preparing Canada’s lawyers for the future of the profession and ensuring it remains highly relevant to the lives of Canadians. It looks at both the business and public side of the legal profession on the assumption that access to justice and the future of legal services go hand in hand.
            The access to justice component will examine the problems among low- and middle-income Canadians, and marginalized communities, in gaining access to legal services and advice. Our branches know those problems well.
            For example, in New Brunswick, lawyers and judges have put the spotlight on family law, calling on the province to revisit the findings of a 2009 government task force, which made 50 recommendations aimed at improving access to family court.
            Last September, the Alberta branch struck its own access to justice committee, focused on public legal education with a variety of not-for-profit groups. I’m also glad to see that the Alberta branch, like the branch in my home province of British Columbia, has embraced the challenge of keeping lawyers in small communities as an aspect of access to justice. It’s an important piece of the access to justice puzzle.
            These initiatives at the branch level are a powerful reminder of how the work of our branches helps build the CBA’s  credibility to not only  lead the public debate on access to justice, but to enhance our position as the voice of the legal profession.

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            Can’t get through to people?

            By Beverley Spencer March 7 2013 7 March 2013

              Effective communication is the bread and butter of legal practice, but how many lawyers are really good at it? The answer might surprise you.
              As Ann Macaulay reports in Your Practice this month, one-third of all legal malpractice claims filed with the Lawyers’ Professional Indemnity Company stem from lack of communication between lawyers and clients.
              Why the disconnect? After reading Susan Cain’s excellent book, Quiet: The power of introverts in a world that can’t stop talking, it occurred to me that personality might play a role. Yes, you can work to improve your skills at effective communication, but your personality influences your communication style. And while we can’t change our personalities, we can learn how they help or hinder our efforts to get our message across to clients, co-workers, and other people in our lives.  One of the crucial factors is whether we are introverts or extroverts.
              As Cain explains, the key difference between introverts and extroverts lies in our response to stimulation. The introvert prefers low-key en­viron­ments, needs time to recharge after being around others, is careful, focused and a good listener. The extrovert loves to talk, is energized by being around others and actually becomes bored and listless in the absence of stimulation.
              Like everyone, lawyers struggle to communicate with people who have the opposite personality. But addressing this communication gap is vital to effective communications.
              Martha Newman of Top Lawyer Coach recommends for example, that extroverts remember introverts need to quietly focus on one thing at a time and that they do their best thinking alone. Understanding this means the extrovert is less likely to get frustrated that the individual is not forthcoming or is difficult to deal with. Introverts are encouraged to focus on their strengths and speak up when an issue is important.
              Skill-building is important. But like most things, efforts rooted in self-knowledge will bear the most fruit.

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              How to kickstart crowdfunding in Canada

              By Yves Faguy March 5 2013 5 March 2013

                Michael Geist has a helpful post on why Kickstarter and other crowdfunding sites are having trouble getting traction in Canada (an issue Leo Singer recently looked into in a recent article for National on the sharing economy):

                The barriers to Canadian crowdfunding extend beyond payment problems and sparsely populated websites. Legal uncertainty about venturing into crowdsourced investment has limited the ability of Canadian creators to tap into their home market. Canadian sites are typically based on a donation model in which there is no expectation of financial return, though some creators offer incentives and gifts in return for support. The United States has opened the door to an investment model that would allow for crowdfunding investments that could result in revenue sharing or the issuance of stock in the project or company.

                The Ontario Securities Commission just closed a consultation on the issue with many potential safeguards being considered. These include registration requirements, investment limits, disclosure obligations, and "cooling off" periods that would allow investors to back out of an investment.

                The failure of Canadian crowdfunding sites to keep pace with sites such as Kickstarter unsurprisingly means that creators are forced to look south of the border for financial support.

                Of course, part of the problem too is that there is no single securities regulator in Canada. If the provinces are ever to permit crowdfunding by Canadian issuers, they'll have to change the rules Geist refers to under each of their respective Canadian securities laws.

                That said, crowdsourcing does have its critics who might applaud Canada's slow pace of change. Steve Rattner, slamming the US JOBS Act, compared it in a recent NYT article to gambling:

                While such lightly regulated capital raising has existed for years, until now, “investors” could receive only trinkets and other items of small value, similar to the way public television raises funds. As soon as regulations required to implement the new rules are completed, people who invest money in start-ups through sites similar to Kickstarter will be able to receive a financial interest in the soliciting company, much like buying shares on the stock exchange. But the enterprises soliciting these funds will hardly be big corporations like Wal-Mart or Exxon; they will be small start-ups with no track records.

                Picking winners among the many young companies seeking money is a tough business, even for the most sophisticated investors. Indeed, most professionally run venture funds lose money. For individuals, it’s pure folly. Buy a lottery ticket instead. Your chance of winning is likely to be higher.

                Which might explain its popularity. According to Deloite estimates, crowdfunding portals will lend $1.4 billion worldwide in 2013, up from 50 per cent in 2012. More on the state of international crowdfunding here.

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                Whatcott reactions, continued

                By Yves Faguy March 1 2013 1 March 2013

                  The Whatcott decision generated a ton of commentary, so we rounded up a few more reactions.

                  Ariane Krol recognizes that the court struggled to bring clarity to the debate, but the decision, she writes, still leaves plenty of room for interpretation:

                  The trouble is that the Court’s test rests on impressionistic criteria. Could it be the reason why it took the justices 16 months to reach a decision about four pamphlets?

                  The [hateful] expression must not only inspire violent and extreme sentiments, but must be “likely to expose the targeted person or group to hatred by others.” Following the decision, we must ask ourselves what “a reasonable person, aware of the context and circumstances’ would think. But that won’t change anything. Measuring intensity and the evaluating the possible consequences is an inherently subjective exercise. It’s to be expected that the administrative tribunals that will have to apply these criteria will continue to render controversial rulings. (Our translation)

                  It’s a nuanced and well-crafted decision, according to Michael Plaxton, but one that forces us to confront difficult questions:

                  The decision in Whatcott forces one to ask just how important it is that matters of private sexual morality be debated in the public sphere. Maybe it’s fair enough to say that the state has no place in the bedrooms of the nation. But does that mean private citizens should not be allowed to express an opinion about what goes on in them? After all, although it may seem a trivial matter for many of us, for others, sexual morality is tied to questions of the highest spiritual significance and urgency. Perhaps a commitment to equality demands that their views be muffled somewhat. If that is true, though, we should be honest about what we are doing.

                  (More after the jump)


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                  Getting serious about oil spill liability

                  By Yves Faguy February 28 2013 28 February 2013

                    Earlier this year there were reports that Ottawa is planning on raising spill liability limits for offshore drilling. It isn’t clear yet whether new rules would apply to inland pipelines as well. As things stand now, provided there is no negligence, oil companies have their liability capped at an absurdly low $40 million in the North and $30 million off the East Coast. To put things in perspective, the BP spill in the Gulf of Mexico three years ago caused damages estimated at $40 billion. Who knows how much worse it could be in Arctic waters?

                    We caught up with Will Amos, director of the Ecojustice clinic at the University of Ottawa, to give us some insight on where the government might be headed, how it should handle this issue and what it might mean for the resource industry.

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                    NEXUS privileges: Saving time at the border

                    By Cyndee Todgham Cherniak February 27 2013 27 February 2013

                      Many NEXUS card holders in the Trusted Traveler Program are not aware that there are on-line forms available that they can complete prior to returning to Canada with their purchases.  The declaration process is simplified by the NEXUS Traveller Declaration Card (TDC).  Canadian residents who are members of the trusted traveler programs may complete this form to declare goods purchased and/or acquired outside Canada and must give the completed TDC to the Canada Border Services Agency (CBSA).  At many land border crossings, there is a secure deposit box in which to submit the completed forms in the NEXUS lane.

                      (More after the jump)

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                      Whatcott reactions

                      By Yves Faguy February 27 2013 27 February 2013

                        It took 16 months for the Supreme Court to release its unanimous decision in Whatcott. Though predictably, reactions split both ways. Here’s the bottom line from a somewhat disappointed Jonathan Kay:

                        The Supreme Court of Canada’s decision in the case of Saskatchewan Human Rights Commission v. Whatcott can’t be considered a win for free-speech champions — especially religious conservatives. But nor is it an outright victory for human-rights censors. By reaffirming that human rights commissions cannot punish speech that merely “ridicules, belittles or otherwise affronts the dignity of” an alleged victim group, the Court struck a measured blow against political correctness.

                        Charlie Gillis writes that the compromise was inevitable. And yet:

                        To me, their decision to stand-pat represents a missed opportunity to erect robust legal protections around a bedrock Canadian value. And yes, my employer has a stake in this. But if we learned anything from the Maclean’s-Ezra Levant human-rights fiascos, it’s that the rights process is too blunt, too one-sided an instrument to deal with such a sensitive issue as speech.

                        A couple of other thoughts: all eyes should now turn to the provinces that have anti-hate speech provisions in their human rights codes, some of whose leaders have echoed the above-stated qualms. They’ve been sitting on the sidelines to see whether Whatcott would give them the cover needed to do the right thing, and now the onus is on them.

                        (More after the jump)

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                        Shareholder activism: Is it going too far?

                        By Yves Faguy February 26 2013 26 February 2013

                          National recently had an item on shareholder activism and the substantial increase in proxy fights in Canada. Walied Soliman, a partner with Norton Rose is quoted in the article as saying he has been involved in some 40 proxy battles over the past three or four years. What’s more, he believes we’ll see the number of proxy fights increase in Canada “mainly because there’s evidence of success.”

                          Well the big success story in New York, and perhaps a harbinger of things to come in Canada, is last week’s ruling by a federal court judge in favour of hedge fund manager David Einhorn in his legal battle against Apple. Einhorn is trying to pressure the company into distributing some of its massive cash reserves to shareholders through the issuance of (cutely-named and) dividend-paying iPrefs. Apple responded by trying to limit its ability to issue preferred shares by submitting a bundled proposal that was supposed to be put to a vote at this week's annual shareholder meeting. But the judge rejected the actual bundling of the proposal with other poposals.

                          Admittedly, the win is no more than a procedural – some might say “trivial” – one for Einhorn. Nevertheless, Andrew Ross Sorkin looks at the big picture (Einhorn’s attempt to force Apple to distribute its cash) with an interesting column today on abuses of shareholder power (more after the jump).

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