The Power of Perspectives

The Canadian Bar Association

National Blog

C-58 Update: The government should reconsider its position on solicitor-client privilege

By Kim Covert June 27 2018 27 June 2018

     

    The legal profession will have to step up the pressure to protect solicitor-client privilege, based on the latest communication from the federal Justice Minister.

    Seven months after meeting with a delegation that included officials from the Federation of Law Societies of Canada and the CBA, and six months after receiving a submission from the Privacy and Access Law Section on Bill C-58, Justice Minister Jody Wilson-Raybould has written to President Kerry Simmons, Q.C., to politely disagree with the CBA’s position on solicitor-client privilege.

    Clauses 15 and 50 in the proposed amendments to the Access to Information Act and the Privacy Act would give Information and Privacy Commissioners unfettered access to records that are withheld by the head of a government institution on the basis that they are protected by solicitor-client privilege, professional secrecy or litigation privilege.

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    Playing our cards right: Improving the PR experience

    By Kim Covert June 26 2018 26 June 2018

       

      In a perfect world, an immigrant gets permanent resident status, receives the appropriate paperwork in a timely manner, and a new life in the new country – travel, school, employment – goes on as normal.

      And about 80 per cent of the time in Canada this is the case – applications for new permanent resident cards are processed in about two months, and renewals take about four months. But the other 20 per cent of the time, the CBA’s Immigration Law Section says, all bets are off – lawyers have had cases where it’s taken as much as 12 months to get a PR card, presenting difficulties “ranging from inconvenience to emotional and financial hardship for the applicant, their family members and their employers.”

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      Past time to create a National Commissioner for Children and Youth

      By Kim Covert June 22 2018 22 June 2018

         

        Canada is a great country, full of promise for this and future generations. What it lacks is an office to ensure that promise is kept, despite international treaty obligations that confer on it the responsibility to create one.

        When Canada ratified the UN Convention on the Rights of the Child in 1991, among other things it accepted the obligation to establish the office of a National Commissioner for Children and Youth. Six years ago, in its Concluding Observations on Canada’s Third and Fourth Reports on the CRC, the UN Committee on the Rights of the Child once again urged Canada to establish such an office.

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        What the IRB needs: Transparent appointments, adequate training

        By Kim Covert June 20 2018 20 June 2018

           

          The Immigration and Refugee Board is Canada’s largest federal administrative tribunal, and has an important role in the Canadian immigration law landscape.

          As such, it’s imperative that IRB members be appointed through a transparent process and trained properly for the roles they have to play, says the CBA’s Immigration Law Section in its contribution to the Citizenship and Immigration Committee’s study of the IRB’s appointment, training and complaints process.

          The CBA has called for transparent, accountable and impartial federal tribunals for decades, and recent problems have highlighted the need for improvements, the Section writes, with particular emphasis on enhancing transparency throughout the IRB process.

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          A shorter deadline won’t make tax reports more accurate

          By Kim Covert June 13 2018 13 June 2018

             

            Taxpayers with foreign affiliates currently have 15 months after the end of their taxation year to file information returns to show their compliance with Canadian taxation of foreign-based income. In the 2018 budget, the federal government announced its intention to shorten that filing deadline to six months beginning in 2019, to bring it in line with the corporate income tax return deadline.

            In a submission to the Department of Finance, the Joint Committee on Taxation of the Canadian Bar Association and Chartered Professional Accountants of Canada lays out its argument against this proposed move.

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            Abuse of dominance guidelines need work

            By Kim Covert June 4 2018 4 June 2018

               

              It’s not always easy to distinguish aggressive-but-pro-competitive business practices from those that are anti-competitive. That’s why the CBA’s Competition Law Section welcomes the Competition Bureau’s draft Abuse of Dominance Enforcement Guidelines as an aid to decision-making in the business community.

              That said, the Section says the guidelines could be improved to be more helpful.

              “The guidelines sometimes take an inconsistent or expansive view of existing Canadian abuse of dominance jurisprudence,” the Section says.

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              Prompt payment legislation: Focus on harmonization

              By Kim Covert May 31 2018 31 May 2018

                 

                When the Senate passed its Bill S-224, Canada Prompt Payments Act, last fall, the CBA’s Construction and Infrastructure Law Section expressed its concern with many aspects of the bill and suggested that the government not move forward with it before doing extensive consultations with the construction industry.

                So the Section was very happy to respond to the expert review carried out by the same construction lawyers who’d done similar work for the province of Ontario, which has recently passed its new construction legislation.

                So the Section was very happy to respond to the expert review carried out by the same construction lawyers who’d done similar work for the province of Ontario, which has recently passed its new construction legislation.

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                Search engines’ raison d’être at the base of online privacy debate

                By Kim Covert May 29 2018 29 May 2018

                   

                  Are search engines engaged in commercial activity? Is it practical to require them to obtain consent before gathering personal data? Is it appropriate to ask them to decide what information needs to be removed from their indexes?

                  These are just some of the thorny questions in the debate over online reputation, and the right to be forgotten. Three CBA groups – the CCCA, the Privacy and Access Law Section and the Children’s Law Committeerecently responded to the Office of the Privacy Commissioner’s Draft Position on Online Reputation and the only things the three wholeheartedly agreed on were that children must be protected online and that privacy laws, written for a different time and circumstance, need to be studied by Parliament.

                  “Privacy legislation, as well as the Canadian Charter of Rights and Freedoms, are interpreted today in a different context than when they were originally drafted,” the Sections say. “As the internet broadly, and search engines specifically, are significant sources of information for Canadians, online reputation and disclosure of personal information online are important issues for regulators, policy makers and legislatures to examine.”

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                  Voter intelligence is big business unfettered by regulation

                  By Kim Covert May 25 2018 25 May 2018

                     

                    The recent scandal surrounding information-gathering by Cambridge Analytics and Facebook opened a lot of eyes to the amount of data that is out there to be collected, and the uses to which it can be put.

                    Usually when we think about Big Data we think of it in commercial terms – companies finding ways to use personal information about consumers in order to enhance their bottom lines. But Big Data’s not just for Big Business any more –political parties are also hoovering up Canadians’ data, and they’re doing it with relative abandon, compared with the restrictions placed on the business world.

                    “Political parties are not subject to privacy laws,” the CBA’s Privacy and Access Law Section points out in a submission regarding Bill C-50, An Act to Amend the Canada Elections Act, noting that laws meant to protect Canadians privacy in almost all other aspects of their lives, including the Personal Information Protection and Electronic Documents Act, the Privacy Act, or Canada’s Anti-Spam Law, do not apply to political parties.

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                    Impact assessments: Bill C-69 needs clarity and guidance to achieve stated goals

                    By Kim Covert May 25 2018 25 May 2018

                       

                      The federal government set out a host of worthy goals in the preamble for Bill C-69,An Act to enact the Impact Assessment Act and the Canadian Energy Regulator Act, to amend the Navigation Protection Act and to make consequential amendments to other Acts, which had its first reading in the House in February.

                      The government aims to implement an assessment and regulatory system that:

                      • people can trust, that will protect the environment and the health and safety of Canadians
                      • that allows decisions to be predictable and timely, therefore providing the stability business needs
                      • reflects the government’s commitment to achieving reconciliation with First Nations
                      • uses transparent processes built on early engagement and inclusive participation
                      • considers both scientific and traditional knowledge
                      • assesses the broader impact of policies, programs and projects.

                      These are all goals the CBA can get behind, say the Aboriginal Law Section and the National Environmental, Energy and Resources Law Section in a submission centred on the proposed Impact Assessment Act.

                      The devil, as always, is in the details.

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                      Draft M&A guide takes positions inconsistent with jurisprudence

                      By Kim Covert May 23 2018 23 May 2018

                         

                        Google “mergers” and “efficiencies” and the helpful suggestion for a search that comes up is “mergers create efficiencies.” It’s apparently so true that even Google knows it.

                        In March, the Competition Bureau released a draft document, A practical guide to efficiencies analysis in merger reviews, sharing its perspective and experience on trade-off analysis, and when the Commissioner may decide not to challenge a merger due to efficiency gains.

                        The CBA’s Competition Law Section commends the Bureau on its commitment to transparency and public consultation, but has a number of concerns with the document, recommending that language in a number of areas be clarified or reconsidered.

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                        Bill C-66 not a complete fix for historically unjust convictions

                        By Kim Covert May 17 2018 17 May 2018

                           

                          We’ve come a long way, baby. Time passes and society evolves and so do its attitudes to certain behaviour. Some laws are slower to change than others, but once something becomes more socially accepted, the laws regulating that behaviour gradually fall off the books.

                          The convictions under those laws, however, are another matter.

                          Many members of the LGBTQ2S community still have a criminal record for activities that have not been illegal for some time. It is these people whom Bill C-66, the Expungement of Historically Unjust Convictions Act, is supposed to help.

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