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The Canadian Bar Association

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When should voting irregularities annul an election?

By Yves Faguy October 25 2012 25 October 2012

    From the Chief Justice's dissent today:

    A court may annul an election under s. 531(2) if the applicant establishes that there were “irregularities . . . that affected the result of the election” within the meaning of s. 524(1)(b). The term “irregularities” should be interpreted to mean failures to comply with the requirements of the Act, unless the deficiency is merely technical or trivial. For “irregularities” to have “affected the result of the election”, they must be of a type that could affect the result of the election and impact a sufficient number of votes to have done so. Votes cast by persons not entitled to vote are irregularities that can affect the result of the election, because they are votes that should not have been cast. If the number of such votes equals or exceeds the winner’s plurality, then the result of the election is affected and the election should be annulled.


    Since the 65 votes properly set aside exceed the 26 vote plurality, the election should be annulled.

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    Opitz v. Wrzesnewskyj reactions

    By Yves Faguy October 25 2012 25 October 2012

      A couple of comments regarding today’s Supreme Court ruling confirming Conservative MP Ted Opitz win in the last federal election:

      John Ibbitson:

      The courts wade into such murky waters at their peril. The independence of the judiciary from the legislature is a cornerstone of the checks and balances on which parliamentary democracy is based. The Court affirmed, in its decision, that judges must not become embroiled in such partisan contests unless absolutely necessary. Given any kind of choice, judges must stand aside. Thursday morning, the Court stood aside.

      Paul Wells:

      There was some chatter on Twitter this morning, after the Supreme Court ruled to uphold the election results in Etobicoke Centre, to the effect that Stephen Harper has finally succeeded in stacking the top court with corrupt thugs and we are now fully entered into a post-democratic era here in KanuckiHarperStan. My hunch is that this overstates things. First, this was actually the Harper government’s first good day at the Court in a while. The Supremes have more often been in the habit of handing Harper trouble, as with the Insite supervised-injection site case and Jim Flaherty’s dead-parrot project for a national securities regulator. In those highest of high-profile cases, Harper appointees concurred with their colleagues in unanimous judgments.

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      The end of articling in Ontario?

      By Yves Faguy October 24 2012 24 October 2012

        The LSUC is struggling with how to address the articling crisis in Ontario.

        Today, the law society's Articling Task Force released its final report on reforming lawyer licensing in the province. The report will be debated live on Thursday 9:30 am at LSUC Convocation.

        Everybody on the task foce seems to agree that a change is needed. But the big question being debated tomorrow is whether the LSUC should a) approve a five-year pilot project that will allow articling and a new Law Practice Program (LPP) to operate side by side; or b) effectively scrap the articling program altogether for fear that a) would create a two-tiered licensing process.

        The majority of the task force is favouring a).

        It should make for an interesting debate.

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        Partners for progress

        By Robert Brun October 23 2012 23 October 2012

          I had an opportunity recently to speak to the Federation of Law Societies in Vancouver. It brought to mind the importance of partnership in our life as an association.

          As the voice of the legal profession in Canada, we strive to show leadership on the important issues affecting our members and our society. But it is important to recognize that we have partners who also act in the public interest, albeit from a different perspective.

          For example, the function of the law societies is to regulate the legal profession in the public interest; the job of the CBA is to represent the interests of members of the profession. There is a clear distinction between the two — and this distinction between regulator and advocate reinforces our right to self-governance.

          However, our separate roles do not preclude us both from acting in the public interest.

          It is clear that the challenges facing our justice system are matters of public interest that require all stakeholders to work together. Consider the continuing crisis surrounding access to justice. A lot of good work is already being done: the Action Committee on Access to Justice, headed by Mr. Justice Thomas Cromwell of the Supreme Court of Canada, has brought together representatives of the judiciary, government, court administrators, the practising bar and, of course, the CBA.

          The CBA has also launched the Envisioning Equal Justice Project, chaired by Dr. Melina Buckley. This initiative takes a holistic approch to the issue and examines how we can get government, the bar and the court system to work together.

          There are many stakeholders in our justice system and many competing priorities. But if we can identify where our interests intersect, we will find common ground on which to build a solution. The public interest in a sustainable, accessible justice system surely demands that we move forward together as partners to achieve progress.

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          Happy Anniversary, National!

          By October 23 2012 23 October 2012

            We’re celebrating a special anniversary at National magazine this month. It’s the 20th anniversary of the publication in magazine form, and a good time to look at how far we’ve come.

            National magazine officially made its debut in October, 1992, but the CBA was publishing asso­ciation news long before that. Stephen Hanson, senior director of communications who retired in early October, was tasked with redesigning the CBA news sheet when he arrived in 1975.

            The first incarnation of National was a tab newspaper produced under contract with Le Droit. Steve along with Hannah Bernstein (our current director of publishing), learned how to lay it out and send type (truly lost arts). Editorial independence was established early on. Content expanded to include commentary, regular features by professional writers, and a cartoonist. By the mid-1980s, the association decided it was time to create a magazine.

            An agreement was reached with Mac­lean Hunter (now Rogers) to print and distribute the magazine, an arrangement that continues to this day.

            Today we are on the cusp of another new era for National with the launch of You’ll also notice our magazine has a new look; thanks to our art director Tony Delitala for a great job in executing our new modern vision.

            I’d like to thank everyone who has helped build our success, especially the many volunteers on our communications committees and editorial boards who have provided valuable guidance and direction over the years.

            A special thanks to Steve and Hannah for building the foundation on which we stand today. National is one of Steve’s most important legacies as senior director of communications. His guidance and enthusiasm helped create a lively, intelligent publication of which we can all be proud. And I’ll be proud to build on his legacy into a bright new future for National.

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            The risks of whistleblowing at the Charbonneau Commission

            By Yves Faguy October 16 2012 16 October 2012

              In his column today, Yves Boisvert sorts through the stew of allegations made by Lino Zambito that have placed a number of politicians and political operatives in Quebec under the spotlight, not least of which is the mayor of the province’s second largest city.

              According to the star witness, Mayor Vaillancourt, a fixture in Laval municipal politics since the 1970s, was known to take a 2.5 percent cut of all city construction contracts. It can hardly be a coincidence, Boisvert suspects, that just last week an anticorruption unit came down on the mayor’s house last week with search warrants. Of course, there has been plenty of speculation as to the reasons compelling Zambito to speak as freely as he has chosen to do – he himself admits he was “no angel.” But Boisvert doesn’t deny that Zambito, for all his past dodgy dealings, is still a credible witness. Even so, the columnist is worried that the Charbonneau Commission may have overreached in allowing Zambito to name certain names:

              Lino Zambito did not witness any payment to Gilles Vaillancourt. He “was told” that the mayor took 2.5 percent of the contracts; the engineer Marc Gendron of Tecsult [an engineering firm that has admitted under oath in a tax matter to illegally financing political parties] allegedly asked him for $25,000 for the mayor, he said.

              That’s all the proof he has to offer. So up to this point, it’s all hearsay. One can imagine that had Gendron actually said that, he could conceivably have kept the money for himself – an old trick. If so, it wouldn’t have been prudent for the Commission to allow the witness to name Gilles Vaillancourt. I expect there is more to come. [My Translation]

              It’s likely that Zambito is safe from criminal prosecution or, at the very least, that he’s made an arrangement of some kind in exchange of his candour. As for the hearsay about Vaillancourt, well, there have been stern denials of any wrongdoing. But no talk of suing Zambito for defamation. After all, it was only a year ago – almost to the day – that the mayor backed off such a threat against two other politicians who had claimed that he had offered them money to help them win tough elections in their own ridings. Still, the city of Laval is considering whether it should request to be a participant in the Commission so that it may have the opportunity cross-examine him. Will he back off from that threat too?

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              Did Canada get steamrolled by China?

              By Yves Faguy October 9 2012 9 October 2012

                Paul Wells commits journalism and reads the fine print of the Foreign Investment Promotion and Protection Agreement (FIPA) between Canada and China, which will soon come into force:

                Most of the news coverage about Canada-China investment has centred on Chinese attempts to buy into Canada, especially on the Nexxen deal [sic]. But Canadians are also trying to buy into China and they have had a hard time of it. That’s what was making Harper nervous in Vancouver (and former Harper cabinet minister Jim Prentice borderline apoplectic). And the vaunted FIPA provides prospective Canadian investors (of which there are many) very limited protection compared to what it provides existing Canadian investors (of which there aren’t enough).

                Why is that? Well, because it seems that Canada abandoned its own model for FIPAs and agreed to go along with China’s preferred wording for the national treatment clause, which normally would give foreign investors the same rights in the host country as those of its own investors.

                So in its current wording, that clause excludes those Canadian investors still trying to establish themselves in China. And vice versa, mind you, which is why I can’t see how this would pose Canada a problem if it would want to block a takeover similar to CNOOC’s bid for Nexen. Still, Canadian investors not already established in China may find it difficult to get around new Chinese regulations aimed at protecting national and economic security, not to mention a number of industry-specific standards that favour domestic firms.

                But what should worry advocates of transparency are the provisions of the FIPA dealing with dispute resolution. Again, Wells drills down to the specifics:

                Here again, the language in the final treaty is very restrictive. “The treaty does not require that arbitration of disputes be done in a manner that is open to the media and the public,” Luke Eric Peterson told me. He’s a reporter in New York City with this investment arbitration newsletter. ”This is a huge concern,” he added — especially because the arbitration process is designed to supplant the previous forum for such disputes, which is the courts. “Journalists that want to cover this beat in future may be deeply chagrined to discover that they are barred from arbitration hearings and may not be able to access the ‘court file’ related to major disputes — unless the states decide that it is in the ‘public interest’ to allow such access."  So when massive commercial disputes are arbitrated under this FIPA, they will be arbitrated out of public view unless both Canada and China agree. Again, this is a departure from Canadian practice and an embrace of Chinese practice.

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                Public inquiry witness protection?

                By Yves Faguy October 5 2012 5 October 2012

                  Catherine Solyom at The Gazette wonders whether Lino Zambito of Charbonneau Commission fame is immune from prosecution in court about his own involvement in the system of collusion that ruled Montreal’s construction industry for so many years:

                  Presumably, he believes his testimony before the Commission cannot be used against him in court. But while that may be true for criminal proceedings, it is not clear whether it holds true for civil suits — including those for defamation and slander.

                  In June, when former police chief Jacques Duchesneau was testifying, Sylvain Lussier, the lead counsel for the Charbonneau Commission, at first said testimony before the commission could be used in civil suits. Then he changed his mind. He and his team had examined the relevant laws, the Commission heard, and determined that yes, witnesses are also protected against civil suits.

                  But as Solyom points out, here’s what Lussier told Luis Millán in the Lawyer’s Weekly, regarding a claim in restitution he launched representing the Canadian government against defendants for their role in the sponsorship scandal:

                  "I myself used what was said in the Gomery Commission against civil defendants and was vindicated by Justice Hébert,” said Lussier, adding that in his own opinion s. 13 of the Canadian Charter does not grant protection against self-incrimination in civil proceedings. Though on less solid ground because of the absence of precedence, Lussier also believes that witnesses who slander while providing testimony before a commission of inquiry cannot hide behind the shield of immunity.

                  And finally there’s this other quote from Lussier in Millán’s reporting:

                  “You can sue for defamation for slanderous procedures. Lawyers and clients do engage their liability if they write defamatory procedures. The fact that it’s in court does not grant immunity from defamation suits. So why would something slanderous being said before a commission (of inquiry) be immune from ulterior prosecution.

                  So it seems an admission of responsibility made before a commission of inquiry can be used in civil proceedings (in Quebec at least). Which explains why the Commission has ordered a publication ban on the remainder of Zambito’s continuing testimony.

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                  Mobile marketing for lawyers

                  By Yves Faguy October 4 2012 4 October 2012

                    Here are some striking figures from Pew Research Center's Project for Excellence in Journalism - most notably, how quickly people are embracing smartphones and tablets:

                    Nearly a quarter of U.S. adults, 22%, now own a tablet device-double the number from a year earlier. Another 3% of adults regularly use a tablet owned by someone else in their home. And nearly a quarter of those who don't have a tablet, 23%, plan to get one in the next six months. Even more U.S. adults (44%) have smartphones, according to the survey, up from 35% in May 2011.

                    And what’s encouraging for content providers (that includes lawyers, people) is this:

                    News remains an important part of what people do on their mobile devices-64% of tablet owners and 62% of smartphone owners say they use the devices for news at least weekly, tying news statistically with other popular activities such email and playing games on tablets and behind only email on smartphones (not including talking on the phone). This means fully a third of all U.S. adults now get news on a mobile device at least once a week.

                    Mobile users, moreover, are not just checking headlines on their devices, although nearly all use the devices for the latest new updates. Many also are reading longer news stories - 73% of adults who consume news on their tablet read in-depth articles at least sometimes, including 19% who do so daily. Fully 61% of smartphone news consumers at least sometimes read longer stories, 11% regularly.

                    This report is obviously great news for the media industry. But the rapidly changing habits of consumers of content have huge implications for lawyers and law firms eager to embrace social media and market themselves online.

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                    Foreign takeovers: When to say no

                    By Yves Faguy October 2 2012 2 October 2012

                      Stephen Gordon doesn't see many reasons why Ottawa should reject a foreign takeover.

                      Foreign ownership became an issue some fifty years ago, and there were credible reasons for concern. Foreign-owned branch plants tended to be less productive and less interested in innovation. But the problem wasn’t foreign ownership per se, it was the fact that the raison d’être for these branch plants was the high tariff wall protecting Canadian industry. Firms with nothing to fear from foreign competition have little reason to be concerned with low productivity.

                      Things are very different in the post-NAFTA world.This Statistics Canada study (opens pdf) finds that:

                      foreign-controlled plants are more productive, more innovative, more technology intensive, pay higher wages and use more skilled workers… [Multinational enterprises (MNEs)] have accounted for a disproportionately large share of productivity growth in the last two decades. Finally, we find robust evidence for productivity spillovers from foreign-controlled plants to domestic-controlled plants arising from increased competition and greater use of new technologies among domestic plants.

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                      What does "net benefit" mean?

                      By Yves Faguy September 29 2012 29 September 2012

                        Tom Flanagan urges the federal government to approve the CNOOC-Nexen deal before sorting out the "net benefit" rule. Rejecting it would be damaging to Canada's reputation:

                        After more than 20 years in which neither Progressive Conservative nor Liberal governments rejected any foreign acquisitions, this would be the third rejection in five years by this Conservative government.

                        Relations with China would certainly be set back, but the damage would also be wider. It would signal to international investors that any large acquisition, no matter how carefully rationalized in economic terms, can be blocked on the basis of an unpredictable variety of political considerations. Uncertainty means risk, and risk deters investment.


                        Jeffrey Simpson imagines the outcome if the roles were reversed:

                        Canada, however, is strong in energy, telecommunications, automobiles, aviation and metals – all products that China considers largely off limits to foreigners. Any free-trade deal for Canada would have to involve access in these sectors. It would also need to provide guarantees for patent protection (intellectual property) because Chinese firms are notorious (let’s be blunt here) for stealing patented technology and adapting it to their own companies. And the rule of law protecting private property is wobbly in China. As for the new investment treaty between Canada and China, only time will tell whether it’ll resolve these challenges. It’s worth noting that the protections contained in the agreement apply only to companies already operating in China.

                        Free-trade negotiations, in principle, are not to be dismissed lightly. The structure of the Chinese economy, the erratic respect for the rules of property law, and the off-limits areas of the Chinese economy mean that any talks would be long and laborious, with no guarantee that the Chinese government would agree to rules found in free-trade deals that Canada has signed with other countries.

                        The bid for Nexen is now being reviewed by the Harper government, with the nebulous term “net benefit” before a takeover is approved still unclear. If one part of the “net benefit” became “Can we do there what you’re proposing to do here?” the takeover would never be approved. Quite likely, the government will eventually approve the deal, but the condition of reciprocity won’t be there.

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                        A fresh new look for fall

                        By September 28 2012 28 September 2012

                          September might be the beginning of fall, but somehow it always feels like the start of a new year. That’s probably because September brings the start of school and the transition from the laid-back days of summer (if you’re lucky) to the more disciplined rigour of business as usual.
                          At National, we’re looking forward to the start of a brand new year, but it won’t be business as usual. First of all, We’re proud to bring you In addition to providing online access to our regular issues, the website will offer thought-provoking blogs and videos from new voices, power players and thought leaders across the legal profession. We’re looking forward to building on our tradition of editorial excellence and interacting with readers in a new way.
                          In tandem with the development of our website, we’re also giving our magazine a fresh new look. The rebranding will tie together both products, and also respond to what we’ve heard from our readers about how they currently use and enjoy the magazine.
                          Last September, the CBA and Rogers Connect Market Research Group conducted a readership survey, and your feedback was top-of-mind when we sat down with art director Tony Delitala to consider our new look. We thought about how to seamlessly integrate our French and English content; how to freshen our overall appearance; and how to tailor our editorial to meet your needs. As a result, you’ll still find your favourites, including CBA PracticeLink, Horizons and our in-depth feature articles, but knowing that your time is valuable we’ll be using more graphics and alternative story forms so you can quickly get to the heart of what matters. Other stories take time to tell so we’ll still devote space to examine worthy topics in detail. We’ll also continue to rely on high-quality illustrations and photography to enhance your reading experience.
                          You told us that National magazine is a valuable re­source. Sixty per cent of those surveyed read the magazine within the week it arrives; readers spend a median time of 20 minutes with it. That’s a significant commitment, but we’d like to do even better. So whether you’re a sole practitioner in Kamloops or a partner with Norton Rose in Montreal, we promise that you’ll find something of interest to your practice in every issue, and that your time will be well-spent. With the new website, there are greater opportunities for interaction so you can let us know how we’re doing.

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