The Power of Perspectives

The Canadian Bar Association

National Blog

‘Tis better to govern data, than to own it

By Kim Covert October 25 2018 25 October 2018


    University of Toronto professor Lisa Austin’s problem with the idea that data is the new oil isn’t so much with the idea that data is an asset that can be shared.

    “The discussion is who should own the data, but where’s the discussion over whether data is a thing that can be owned?”

    The basic characteristic of ownership, she told the CBA’s Privacy and Access Law symposium in Ottawa in October, is the right to control or transfer a thing, and others’ obligation not to interfere with that thing.

    But if you start from the idea of ownership, she says, there’s very little in the law that says that control or ownership needs to be exercised reasonably.

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    Proposed workplace harassment regulations put burden on the victim

    By Kim Covert October 24 2018 24 October 2018


      If the #MeToo movement has done nothing else, it has started a conversation about how difficult it can be for victims of abuse and harassment to come forward. When the abuse and harassment are happening in the workplace, there can be additional obstacles for victims – regardless of gender – to overcome.

      The CBA’s Labour and Employment Law Section and the CBA Women Lawyers Forum say the burden for making changes in the workplace should not fall on the victim. They suggest the proposed regulatory framework for Bill C-65, which addresses workplace violence and harassment in federally regulated workplaces, should “explicitly contemplate” that witnesses can also bring a complaint. And they don’t stop there.

      “Even in the absence of a formal complaint, the employer may become aware of possible workplace harassment or violence and have an obligation to investigate and address the situation due to potential harm and liability,” the Sections say in their submission to Employment and Social Development Canada (ESDC). “We recommend that a formal complaint not be necessary to trigger the employer’s responsibility to investigate and remedy a situation of workplace harassment or violence.”

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      Bench press: Applying to be a judge a long and wordy process

      By Kim Covert October 19 2018 19 October 2018


        The new process developed in 2016 to increase transparency in judicial appointments and diversity on the bench brought with it a brand new questionnaire that was more than double the length of the previous one.

        The new application form offers more guidance for completing the optional self-identification portion, and offers more information on filling out the employment history section. It also requires more – and more varied – references, has a written skills assessment section in which the applicant has to provide five written judgments (along with a synopsis of each and the reasons why those five were chosen), and five 750-1,000-word essays “on questions related to the role of the judiciary in Canada’s legal system.”

        Holy writer’s cramp, Batman!

        In a letter to the Justice Minister, the CBA’s Judicial Issues Subcommittee notes that it has received comments that the application was “overwhelming” and “could deter potential candidates from applying.” The Subcommittee says it’s hard to assess the impact of the new application package, given the lack of hard historical data about applicants, but it does acknowledge that the requirements of the application may be commensurate with the position sought.

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        Joint Tax Committee’s thoughts on 2018 tax proposals

        By Kim Covert September 28 2018 28 September 2018


          In July, the government proposed amendments to the Income Tax Act to implement parts of the 2018 federal budget for both personal and business tax.

          The Joint Committee on Taxation of the Canadian Bar Association and Chartered Professional Accountants of Canada commented on the proposed amendments in September.

          In the 2018 budget the federal government announced its intention to impose a new filing obligation on certain trusts that would require the trusts to report the identity of all trustees, beneficiaries and settlors of the trust, and each person who has the ability to exert control over trustee decisions. Exceptions included lawyers’ general trust accounts.

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          Omnibus Bill C-75 attracts wide-ranging response from CBA

          By Kim Covert September 25 2018 25 September 2018


            As is perhaps fitting for omnibus legislation, the CBA Criminal Justice Section’s response to Bill C-75 ranges from “Absolutely!” to “Absolutely not!” and hits “yes,” “no,” and “maybe, if” a number of times in between.

            The bill, which represents the federal government’s response to R v Jordan, deals with court delays (as well as reforms unrelated to court delays, such as intimate partner violence), and includes proposals which would “exacerbate, rather than alleviate, court delays, while simultaneously sacrificing important procedural protections.”

            Tony Paisana and Kathryn Pentz appeared before the Standing Committee on Justice and Human Rights on Sept. 19 in support of the CBA submission.

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            Time for Canada’s Constitution to be fully bilingual

            By Kim Covert September 17 2018 17 September 2018


              The CBA’s French Speaking Members Section says any modernization of the Official Languages Act should include a requirement for the federal Justice Minister to ensure that the Constitution of Canada is enacted and enforceable in both official languages – and that she show her work.

              While French versions of portions of the Constitution were tabled in Parliament 28 years ago, in 1990, the Section notes that they have yet to be enacted.

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              First Nation claims: Tribunal practice directions must consider funding available to claimants

              By Kim Covert September 5 2018 5 September 2018


                Stable, adequate funding is a clear concern for the CBA’s Aboriginal Law Section when it comes to appearances before the Specific Claims Tribunal, which handles claims made by First Nations alleging that the federal government has violated a treaty or the Indian Act.

                Commenting on draft practice directions which were circulated among members of the Tribunal’s Advisory Committee – which includes Section representatives – members stated the general need for the Tribunal to consider the financial implications of any new procedural steps.

                Acknowledging that the Tribunal has no power over funding levels, the Section notes claimants “often have access to significantly less resources than respondents” and that the Tribunal needs to be attuned to this lack.

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                Time to let charities and not-for-profits make money

                By Kim Covert August 29 2018 29 August 2018


                  Every year the federal government asks Canadians what its priorities should be in the next budget.

                  This year the CBA’s Charities and Not-for-Profit Law Section has essentially replied: “Let our people make money.”

                  “We urge the federal government to amend the Income Tax Act to clarify that charities and not-for-profit organizations must be able to innovate, carry on business activities and earn tax-exempt profits, as long as those profits are used for the purposes of the organization and not for the undue benefit of any party or the personal benefit of any director, shareholder or member, directly or indirectly,” the Section writes in its submission to the Finance Committee. “We also urge the federal government to remove barriers that inhibit charities from working with not-for-profits or non-registered charities, allowing them to maximize their success.”

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                  Technology could help streamline, accelerate IRB’s refugee work

                  By Kim Covert August 28 2018 28 August 2018


                    The Immigration and Refugee Board has a number of resource and efficiency issues, and adding another layer of bureaucracy is unlikely to improve the situation, the CBA’s Immigration Law Section says in a recent submission responding to an independent review of refugee determination procedures.

                    The report on the review proposes creating an Asylum System Management Board at the deputy minister level to recommend an annual plan for the asylum system.

                    Noting that the Immigration and Refugee Board is hailed internationally as a model for independent refugee determination, the Section says that a separate board world bring the refugee determination process under further government control, undermining the IRB’s independent decision-making.

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                    C-43 plus C-46 equals disproportionate penalties for immigrants

                    By Kim Covert August 24 2018 24 August 2018


                      The harsh measures in 2013’s Faster Removal of Foreign Criminals Act will be exacerbated when the recently adopted Bill C-46 comes into effect, says the CBA’s Immigration Law Section. And the government should act now to prevent the disparate impact on immigrants.

                      Under the 2013 legislation, people who had been convicted of a crime in Canada and sentenced to six months in jail – a reduction from the previous two years – were denied the right to appeal their status before the Immigration Appeal Division, on the grounds of “serious criminality.” The law also denied appeal rights to permanent residents and foreign nationals convicted of foreign offences, regardless of sentence. These were just two of the grounds on which the Section objected to the bill at the time. The Section also made objections to bill C-46 before it passed.

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                      National registry makes sense for unlocatable pension plan members

                      By Kim Covert August 23 2018 23 August 2018


                        What do you do with pension benefits when you can’t find the plan member?

                        That’s a question the Canadian Association of Pension Supervisory Authorities is trying to answer with its Guideline No. 9, Searching for Un-locatable Members of a Pension Plan.

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                        Response to CCMR draft prospectus: Harmony is the key

                        By Kim Covert August 22 2018 22 August 2018


                          Consistency in regulations and harmonized approach across jurisdictions are important factors for the Cooperative Capital Markets Regulatory System, the CBA’s Business Law Section says.

                          The Section was responding to a draft prospectus and related registration exemptions under the Capital Markets Act published earlier this year. 

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