The Power of Perspectives

The Canadian Bar Association

National Blog

Wake-up call: Canada’s human rights abuses and global trade

By Supriya Tandan November 18 2016 18 November 2016

    Lost in the noise amidst all the discontent with trade agreements, is how little international labour laws are enforced in foreign countries, where labour is often cheap. A spate of lawsuits against Canadian mining companies operating abroad could change that.

    In a recent decision handed down by the British Columbia Supreme Court, Araya v. Nevsun Resources Ltd, Justice Patrice Abrioux ruled that a lawsuit launched by Eritrean miners alleging human right abuses could proceed to trial. These are foreign claimants who are relying on customary international law to sue a Canadian company in Canada. The major issues at play include applications of forum, the act of state doctrine and the use of customary international law within British Columbia/Canada.

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    The “normalization” of Trump and implications for the right to equality in Canada

    By Kerri Froc November 17 2016 17 November 2016

      Those on the left are still in a state of shock and dismay following the Donald Trump as President of the United States on November 9, 2016.  The late-night comedy shows lately have felt more like wakes than entertainment. Kate MacKinnon on Saturday Night Live (for the last time in her Hillary Clinton get-up) sang Leonard Cohen’s Hallelujah, ending with a promise and  a call to perseverance: “I’m not giving up and neither should you.” One strategy touted repeatedly by the media this week as part of “not giving up” is to resist the “normalization” of Trump and his administration. 

      In this context, Hua Hsu of the New Yorker this week suggested that “normalization” is “the ways in which dangerous things come to be viewed as just another part of everyday life…It’s on the late-night talk show, when the comedian giggles as he tousles Donald Trump’s hair, signalling that this madman can take a joke; it’s in the life-style magazine that works to humanize him and those around him.”  The danger, he says, is that normalization “shapes our field of vision; it tells a story of the world and its possibilities.”

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      NAFTA and good faith breaches of Canadian law

      By Justin Ling November 16 2016 16 November 2016

        NAFTA is racking up enemies, lately. An ongoing fight surrounding the rejection of coastal quarry and marine terminal in Nova Scotia stands to either vindicate those naysayers, or serve as a sorely needed win for the defenders of Donald Trump’s least favourite trade deal.

        The trade fight was sparked by a 2007 judgment from a Canada-Nova Scotia environmental assessment review panel that denied Bilcon, a Delaware-registered construction company that was looking to expand its quarry mine near Digby, by installing a new marine terminal to ship the basalt to a processing plant in the United States.

        The panel, according to a backgrounder from the federal government, concluded the terminal “should not be permitted to proceed because it would have a significant and adverse environmental effect on ‘community core values.’” Ottawa drew the same conclusion under the Canadian Environmental Assessment Act.

        Instead of appealing the decision domestically, in 2008 Bilcon filed a NAFTA challenge under Chapter 11, which protects the interests of foreign investors.

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        The growing prestige of the legal ops professional

        By Yves Faguy November 15 2016 15 November 2016

          We live in pretty fluid times, where all professionals are seeking out a competitive edge. Over the last few years much of the discussion in legal circles has focused on how the legal industry has shifted from a seller’s to a buyer’s market. The presumption flowing from that is that the shift is empowering in-house counsel who are increasingly demanding that external firms do more for less.

          Now, things move slowly in the legal world.  Altman Weil, in its 2016 Chief Legal Officer Survey, revealed something interesting recently that D. Casey Flaherty picks up on, namely that law departments are, more often than not, neglecting to ask their firms to change their ways:

          Reorganizing those numbers a bit, only 30.8% of CLOs rate themselves satisfied because they generally are (17.4%) or because they are pleased with their results from asking for change (13.4%). Of 69.2% who are not satisfied, the vast majority have not exercised their inherent authority to ask for change because they are focused only on outcomes/don't think it is their job to ask (43.2%) or have simply taken their business elsewhere (11.7%). The remaining 14.5% asked for change but did not get it.

          This is what one might call an impasse:

          - Law firms are waiting on clients to make them change

          - Clients are waiting on law firms to be proactive or change in response to market pressure

          Well, it's an impasse that may not last for long.  Thomson Reuters released a report, in which it fully acknowledges that there are no dramatic shifts in change implementation strategies carried out by law departments, save perhaps one. GCs are relying more and more on legal department operations professionals:

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          Seeking clemency: It’s time to let Leonard Peltier go

          By CBA/ABC National November 14 2016 14 November 2016


            “I know that to watch him die in prison, without clearing his name, would devastate our family even more than the past four decades have.” – Kathy Peltier, writing in Time magazine in August

            In August, about the same time that Kathy Peltier was waiting anxiously to hear whether President Barack Obama had added her father’s name to the list of pardons in his last year in office, CBA Council passed a resolution to add its voice to the chorus of those pleading for clemency for a man who has spent 40 years in prison after being convicted on fraudulent evidence.

            Leonard Peltier was present when two FBI agents were killed at the Pine Ridge Reservation in South Dakota in 1975. But he was later extradited from Canada and faced murder charges in their killings based on what has been proved to be faulty evidence. And yet he remains in prison, 70 years old and ailing.

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            NAFTA: Goodbye to all that?

            By Yves Faguy November 11 2016 11 November 2016

              Canada and Mexico, it seems, are now happy to renegotiate NAFTA. But what if a President Donald Trump were really to scrap NAFTA, as he has promised he would if he can’t what he wants out of renegotiations? Article 2205 stipulates that “a Party may withdraw from this Agreement six months after it provides written  notice of withdrawal to the other Parties.” It’s unclear whether Trump could act alone or whether he would require a vote from Congress. Still it’s worth remembering, there is still an underlying 1989 Free Trade Agreement between the U.S. and Canada, which was never repealed. Thomas Walkom suggests that the end of NAFTA wouldn’t be all bad for Canada because, contrary to NAFTA, the 1989 FTA doesn’t have an investor-state dispute settlement mechanism:

              A 2015 study found that of the completed NAFTA disputes involving Canada, roughly half were decided in favour of the corporations.

              Others never made it to the dispute-resolution stage because Canadian governments caved in.

              By contrast, no Canadian corporate attempt to challenge U.S. laws under NAFTA has ever succeeded.

              In short, a U.S. decision to pull out of NAFTA could benefit this country. Technically, Canada and Mexico could continue on with the pact. But it was designed around the giant U.S. market and makes little sense without it.

              Wishful thinking perhaps. Michael Geist tries to guess at what NAFTA renegotiations might look like:

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              The LPP pilot project is extended for two additional licensing years

              By Mariane Gravelle November 10 2016 10 November 2016

                On September 22nd, 2016, the Professional Development and Competence Committee of the Law Society of Upper Canada released its Report to Convocation, addressing the Pathways Pilot Project. In that report, the committee recommended ending the Law Practice Program following the completion of its third year (2016-2017) because it “[…]does not appear to be providing an alternative to articling that has gained acceptance by candidates and the profession and that is sustainable in the long term.” (Report to ConvocationSeptember 22, 2016, page 2)

                Following the release of that report, the LSUC received “[…] 93 public submissions from individuals, plus 104 additional individual comments linked to a petition, and 32 from organizations, associations, legal clinics, law schools and others.” The overwhelming majority of these submissions argued in favour of retaining the program, citing – amongst other things – the lack of verifiable data to support the allegation of the creation of a two-tiered system, as well as their own positive experiences with the LPP.

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                Is Uber taking its drivers for a ride?

                By Michael Motala November 10 2016 10 November 2016


                  A landmark ruling out of a British tribunal has put Uber’s wage policies in the cross-hairs. In the decision delivered on October 28th in London, Justice Anthony Snelson blasted Uber’s labour market practices. The tribunal’s ruling comes in the wake of the Airbnb ban in New York City and the EU’s ongoing battle with Google, another sign of a worldwide regulatory backlash against the so-called “sharing economy.”

                  “The lady doth protest too much, methinks,” read Justice Snelson’s reasons, quoting Shakespeare’s Hamlet as he responded to the “grimly loyal evidence” presented by Uber’s lawyers. At times, the judge found that Uber’s defense had resorted to “fictions, twisted language, and even brand new terminology.”

                  Contrary to Uber’s claim that drivers are independent contractors, a finding that would allow the tech company to continue operating while skirting the relevant labour regulations, the tribunal declared that they are in fact workers.

                  “The notion that Uber in London is a mosaic of 30,000 small businesses linked by a common platform is to our minds ridiculous,” read the decision.

                  Classified as workers, the tribunal held that the time drivers spend between rides qualifies as unmeasured time in accordance with the UK’s National Minimum Wage Regulations. The decision means Uber, and similarly modeled tech companies operating in Britain, could be on the hook for the minimum wage and holiday pay.

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                  Working toward climate change governance

                  By Supriya Tandan November 10 2016 10 November 2016

                    Monday marked the start of COP22 in Marrakech, where climate negotiators meet for a fortnight to transform political climate commitments into definitive action. Following the ratification of the Paris Agreement by 55 countries, representing 55 percent of global emissions, the Paris Agreement became a fully binding legal treaty, albeit one lacking any enforcement mechanisms. It provides goals for greenhouse gas emissions reductions but not, as many observers have noted, the methodology by which that can happen. COP22 is to address this gap by developing the rules, timelines and processes that will guide how the world will limit temperature increases to 1.5 – 2 degrees Celsius.

                    To build this methodology, parties will have to tackle  climate change governance, namely with respect to transparency and reporting, mechanisms to fund the adoption of alternative technologies by developing countries, a compliance structure; and tying it all together, the creation of the CMA (aka “the Conference of the Parties serving as the meeting of the Parties to the Paris Agreement”). The CMA will be the de facto governing body for the Paris Agreement and is made up of those countries of who have joined the Paris Agreement.

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                    National security legal analysts brace themselves

                    By CBA/ABC National November 10 2016 10 November 2016


                      Benjamin Wittes of the Brookings Institution and the editor in chief of Lawfare defines his role in the years ahead during the coming Trump presidency:

                      Trump’s election will fundamentally change my work on this site over the next few years, and probably off the site too. Because at least for me, Trump does not enter office with a presumption of regularity in his work. He does not enter office with a presumption that as President he will pursue a vision of what national security means that is remotely related to my own or that he will do so in a rational fashion—or even that he and I share a common idea of what aspects of this nation we are trying to secure. I take what he has said, over a long period of time now, too seriously for that.  

                      So in a way I never did with George W. Bush or Barack Obama or Bill Clinton—the other presidents I have covered as a journalist or analyst—I will write about the actions of the Trump presidency with the working assumption that our nation must be protected both by and from the president. I will support him and dispassionately analyze policy and law related to his functioning as the lawful executive responsible for the nation’s security. But I will always also keep the sharpest of eyes out for the areas where he himself is the threat and dispassionately analyze policy and law related to the threat he poses.

                      Craig Forcese, noting the unlikelihood of a Trump administration being “a government of law by lawyers,” tackles the ripple effects in Canada:

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                      Conflicting decisions on conflicting rights

                      By Jena McGill November 9 2016 9 November 2016


                        This week the Law Society of British Columbia (LSBC) announced its intention to seek leave to appeal to the Supreme Court of Canada the recent decision of the British Columbia Court of Appeal in Trinity Western University v the Law Society of British Columbia. TWU has already filed its leave application in the parallel Ontario case. The opposing conclusions reached by the appeal courts in British Columbia and Ontario on the reasonable balance between the religious rights of the TWU community and the equality rights of LGBTQ Canadians are sure to make for a particularly contentious debate at the country’s highest court.

                        The facts of the TWU law school dispute are by now well known: all TWU students must sign a Community Covenant that prohibits sexual intimacy outside of heterosexual marriage.  In 2014, the law societies of British Columbia and Ontario (as well as Nova Scotia) denied TWU’s applications for accreditation of its proposed law school on the basis that the Covenant discriminates against LGBTQ students.  The refusals mean that graduates of TWU would not be eligible to be called to the bar in these provinces. TWU sought judicial review of these decisions.

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                        How Trump could dump the Paris Agreement

                        By Supriya Tandan November 9 2016 9 November 2016

                          A month before the last night’s election the  Sandra Day O’Connor College of Law published a document outlining the legal pathways a U.S. President could use to withdraw from the Paris Agreement. There are two major routes.

                          The slower route would be to withdraw from the Paris Agreement itself. Article 28.1 of the Paris Agreement authorizes a country to withdraw from the agreement without reason or justification. The only limitation is timing. Countries would only cease to have emission reduction and reporting obligations four years after the agreement came into force. If President Trump gives notification for withdrawal on the first day of his term, then the withdrawal would only come into force on November 4, 2020.

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