The Power of Perspectives

The Canadian Bar Association

National Blog

Consent guidelines: Reviewing the revisions

By Kim Covert May 9 2018 9 May 2018


    In a letter to the Office of the Privacy Commissioner, the CBA’s Privacy and Access Law Section and CCCA note that many of the problems it identified last year in the OPC’s draft guidelines for obtaining meaningful online consent were still present after those guidelines were revised.

    The Sections reiterate four recommendations from the earlier submission.

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    Proceeds of Crime Act: Leave privilege out of it

    By Kim Covert April 26 2018 26 April 2018


      Money laundering and terrorist financing is on the minds of both policy-makers and regulators this spring as the federal government carries out a statutory review of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, and the Federation of Law Societies of Canada proposes amendments to its Model Rules dealing with the subject.

      The CBA has a long history of advocacy on the issue: it was involved in the development of the first proceeds of crime legislation in Canada and has commented since on proposed legislative and regulatory changes, always asserting that the laws must protect solicitor-client privilege. The CBA was an intervenor in Canada (Attorney General) v Federation of Law Societies of Canada, in which the Supreme Court confirmed that the proceeds of crime legislation cannot impose duties on lawyers that undermine their duty of commitment to their clients’ causes.

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      Amendments to Bill C-45 good, but more needed

      By Kim Covert April 24 2018 24 April 2018


        Bill C-45, the Cannabis Act, set to become law this summer, is making its slow way through the approvals process, arriving in mid-April at the Senate Committee on Legal and Constitutional Affairs.

        The CBA made a submission on the bill earlier in the process. For this Senate committee hearing the Criminal Justice Section sent a letter acknowledging that we generally support amendments made to the bill in the House, but emphasizing that the CBA still has serious concerns.

        Amendments to the bill since our submission last fall include removing the height-restriction for home-grown plants, setting $200 as the maximum fine and specifying that probation is not to be imposed for ticketing offences, and adding certain immunities from prosecution for possession offences in the context of medical emergencies.

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        Manitoba pension review consultation

        By Kim Covert April 12 2018 12 April 2018


          CBA’s National Pensions and Benefits Law Section took part in a recent consultation on the Pension Commission of Manitoba’s review of The Pension Benefits Act, responding to questions contained in a consultation paper issued in January.

          In its submission to the commission, the Section noted that CBA members are not of one mind on the merits of defined-benefit pension plans vs. defined contribution, or shared risk plans, so it could not unequivocally recommend one or the other.

          The consultation paper covered questions such as whether a regulatory framework should be developed for defined-benefit or shared-risk plan designs; buying annuities; entitlement to ancillary benefits; locking-in provisions; and whether the new plan should be limited to unionized workplaces.

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          Eligible dependents: Share the support, share the tax credit

          By Kim Covert April 9 2018 9 April 2018


            It’s time for tax law to join the 21st century when it comes to family breakdowns.

            Gone are the days when separation and divorce automatically meant children stayed with one parent and might see the other on the weekends. These days more and more families choose to share custody, yet the CRA doesn’t see that as an option when it comes to applying the tax laws.

            When a child lives mostly with one parent, the Family Law Section says in a submission to the Finance Minister, Federal Child Support Guidelines require only one parent to pay child support, and only the recipient of the support may claim the eligible dependent tax credit for the child.

            When the child lives with both parents, the guidelines require both parents to pay support. For convenience, most families adopt an informal approach, where the higher-earning parent subtracts the lower amount of support payable from the higher amount, and pays only the difference, instead of both parents having to exchange the exact amounts of support payable.

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            CBA: Why we need ADR training in all law schools

            By Kim Covert April 4 2018 4 April 2018


              In a legal environment where most cases settle before they ever reach trial, being able to facilitate the reaching of those settlements is a valuable skill.

              That’s why the CBA has called on law societies and law schools across the country to recognize the importance of mandatory training in alternative dispute resolution.

              A 2016 CBA resolution says that since dispute resolution skills are a foundation of being an effective advocate, all graduating law students and bar admission students should be taught the spectrum of dispute resolution options.

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              Income sprinkling, income splitting, and passive investments

              By Kim Covert April 3 2018 3 April 2018


                No one is ever going to suggest that tax law is simple enough for average individuals to wrap their heads around. But the complexities in proposed changes to the “tax on split income” provisions of the Income Tax Act will go “beyond the capability of business owners and generalist advisors to comprehend and apply,” says a submission from the Joint Committee on Taxation of the Canadian Bar Association and Chartered Professional Accountants of Canada.

                The Committee commends the Finance Department for the improvements made to the draft TOSI legislation introduced in July, 2017, but note that serious technical and practical issues remain.

                Before enumerating a number of specific technical concerns with the proposals, the Committee noted a couple of areas where over-reach and complexity ran the risk of causing unintended consequences.

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                CBA has serious concerns with proposed impaired driving bill

                By Kim Covert March 28 2018 28 March 2018


                  The CBA appeared before the Senate Committee on Legal and Constitutional Affairs in late February to reiterate its concerns with a bill that it says will introduce uncertainty into the criminal law and carry serious repercussions for permanent residents and foreign nationals.

                  The CBA supports the overall aim of the bill, which contains amendments to better address both drug and alcohol impaired driving, but urges “careful consideration of our concerns and recommendations about Bill C-46.” 

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                  Bill C-49 sends mixed messages to foreign investors

                  By Kim Covert March 27 2018 27 March 2018


                    You can attract flies with honey, but if you stand there swatting at them they might not stick around.

                    That’s essentially the message from the CBA’s Air and Space Law Section in response to Bill C-49, which would increase foreign ownership limits of air carriers.

                    As it stands, in order to qualify as “Canadian” and operate a domestic or international air service, foreign ownership and de facto control of the corporation is limited to 25 per cent of the voting interest.

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                    Proposed MAID regulations open door to self-incrimination for practitioners

                    By Kim Covert March 8 2018 8 March 2018


                      The CBA’s End-of-Life Working Group has some concerns about the implications for medical professionals in the proposed Monitoring of Medical Assistance in Dying Regulations published in December.

                      The regulations require medical practitioners and nurse practitioners who receive a written request for MAID, and pharmacists who dispense the drugs, to disclose certain information so governments can track how it is being used.

                      The CBA Working Group sees problems both with the specific kinds of information requested and the fact that the information is being compelled on threat of criminal sanctions.

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                      Extrapolating the decision in Green to other limited partnership cases

                      By Kim Covert March 8 2018 8 March 2018


                        The decision in Green v R, 2017 FCA 107, was engineered to avoid an inappropriate result, but in turn could lead to other inappropriate results if applied broadly.

                        This sparked a discussion between the CRA and the Joint Committee on Taxation of the Canadian Bar Association and Chartered Professional Accountants of Canada late last year on what factors the Department should take into account if it proposes a legislative response to the decision. A recent submission sets out the Joint Committee’s position.

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                        Principles for confidentiality in IP hearings

                        By Kim Covert February 28 2018 28 February 2018


                          The CBA’s Intellectual Property Section welcomed the opportunity to comment on the Federal Court’s Draft Report on Confidentiality Orders, offering up its own proposal for a set of six principles for establishing best practices on the protection and handling of confidential information.

                          The Section says it supports the establishment of a series of guidelines or a Practice Direction based on these principles:

                          1. Parties should try to come to an out-of-court agreement on handling information they consider to be confidential. It would be beneficial, the Section says, if the court could outline specific steps the parties need to take in order for the Federal Court to have jurisdiction to enforce the agreements.

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