The Power of Perspectives

The Canadian Bar Association

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CETA is not a done deal yet

By Erika Schneidereit November 30 2016 30 November 2016

     

    After months of uncertainty, CETA appears to be back on track. While the European Parliament has yet to formally back the agreement, it recently rejected a motion that would delay implementation, suggesting that lawmakers will consent to the treaty’s provisional application. So does that mean CETA is safe?

    Although CETA’s future looks relatively secure, any international agreement can be derailed. Canadians caught a glimpse of this with CETA’s last-minute challenge from Wallonia, the French-speaking region of Belgium. Although Walloon Minister-President Paul Magnette (pictured above) eventually withdrew his opposition, this may not be the last roadblock CETA must face.

    To secure Walloon support, Belgium agreed to ask the European Court of Justice to review CETA’s investment dispute settlement system, leaving the door open to one of CETA’s more controversial aspects. Regardless of the Court’s decision, the investment dispute settlement system remains outside the scope of CETA’s provisional application, meaning that all Parties must ratify the agreement before it comes into force. This leaves plenty of time for Wallonia, or any other region, to bring up new concerns.

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    Oversight without access to information

    By CBA/ABC National November 29 2016 29 November 2016

      Do you need a mechanism to rein in the watchers watching the watchers?

      Bill C-22, currently making its way through Parliament, seems to put a few too many constraints on a proposed Parliamentary committee that would provide oversight of all national security activity, suggests a CBA submission.

      In its 2015 submission on the previous government’s Bill C-51, the CBA recommended the creation of a Parliamentary committee “with access to secret information.” But it will not recommend passage of Bill C-22 without important amendments first being made.

      Bill C-22 contains a number of mechanisms that would actually prevent the committee from carrying out its mandate – by limiting its access to the information it needs, for example, or calling its independence into question. Essentially, the submission suggests, these proscriptions imply a lack of trust in the MPs and Senators who would sit on the committee.

       “Without trust in the members to act responsibly in the national interest, there is little point in forming a Committee,” the submission says. “If there is trust in the members of the Committee, there is no need for unnecessary restrictions that undermine its work and role...”

      The CBA’s greatest concern lies with section 16, which would allow Ministers and departments to refuse to provide information on vague national security grounds – an exemption that seems “unnecessary and illogical” because the MPs and Senators that a Minister might prevent from seeing any particular information “have the same lawful authority to see that information as the Minister him or herself.”

      The Association’s concerns with this section are severe enough that it would oppose passage of the bill if it is not removed, the submission says.

      “Put simply, section 16 would gut the proposed law and preclude the Parliamentary Committee from achieving its objective. It would create a broad and largely standardless ‘out clause’ for Ministers to exempt themselves from the Committee’s disclosure regime.”

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      Renegotiating NAFTA: Opportunities for Canada

      By Justin Ling November 29 2016 29 November 2016

         

        If you deal in trade law in Canada — or are one of many, many lawyers who have clients integrated into the North American market — you might be looking at the current continental state of affairs in one of two ways.

        The bright side: more work for lawyers.

        The downside: the world’s most ambitious trade deal could be in jeopardy.

        But despite the uncertainty thrust into the global financial markets following the election of trade-skeptic President-Elect Donald Trump, some legal experts observers are allowing themselves some degree of optimism.

        “I think we need to walk away from the notion that the negotiations are a sky-is-falling scenario,” Clifford Sosnow, a partner in Fasken Martineau’s Toronto and Ottawa offices told CBA National. “The truth of the matter is, we really don’t know. When we look at NAFTA, it really does allow for parties to modify or make additions.”

        Allowing for some changes, he says, might be perfectly healthy. At the very least, the worst-case scenario isn’t likely that bad.

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        Laws of gravity: Aviation ownership and security

        By CBA/ABC National November 28 2016 28 November 2016

           

          Look up in the sky! It’s a plane! Is it Canadian?

          That last question is a little harder to answer when it comes to a globalized aviation industry, as the CBA’s Air and Space Law Section notes in its response to the Canada Transportation Act Review Report. The Section’s response deals specifically with Chapter 9 of the report on air transport, and addresses issues of economic policy, aviation safety and customer complaints.

          The Section suggests that economic policy and competition related to air transport should be the purview of the Canada Transportation Agency (CTA), not Transport Canada. Canada appears to be the only Chicago Convention signatory-nation where economic policy matters are addressed by the same regulator that oversees aviation security.

          Recommendation 4 in the Air Transport chapter, which advises the government to allow foreigners to own up to 49 per cent of an air carrier, up from the current 25 per cent, raises the question of de facto control vs. de jure control. The Section notes that any time the Minister has previously allowed a foreign company 49 per cent ownership, this has, “notwithstanding regulatory decisions to the contrary, resulted in clear de facto control residing outside of the Canadian jurisdiction. For these reasons, should this recommendation be adopted, changes would also be necessary to the Act insofar as the de facto control provisions are concerned.”

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          SCC protects solicitor-client and litigation privilege

          By CBA/ABC National November 25 2016 25 November 2016

            The Supreme Court handed down a pair of decisions today on solicitor-client and litigation privilege.  The CBA intervened in both cases.

            In Alberta (Info. and Priv. Comm.) v. Univ. of Calgary, the Court held that Alberta’s privacy commissioner cannot order the production  of records over which an organization has claimed to be protected by solicitor-client privilege.  The case turned on s. 56 (3) of the province’s Freedom of Information and Protection of Privacy Ac. Justice Suzanne Côté wrote:

            As this Court held in Canada (Privacy Commissioner) v. Blood Tribe Department of Health, 2008 SCC 44, [2008] 2 S.C.R. 574, solicitor-client privilege cannot be set aside by inference but only by legislative language that is clear, explicit and unequivocal. In the present case, the provision at issue does not meet this standard and therefore fails to evince clear and unambiguous legislative intent to set aside solicitor-client privilege. It is well established that solicitor-client privilege is no longer merely a privilege of the law of evidence, having evolved into a substantive protection. Therefore, I am of the view that solicitor-client privilege is not captured by the expression “privilege[s] of the law of evidence”. Moreover, a reading of s. 56(3) in the context of the statute as a whole also supports the conclusion that the legislature did not intend to set aside solicitor-client privilege. Further, even if s. 56(3) could be construed as authorizing the Commissioner to review documents over which privilege is claimed, this was not an appropriate case in which to order production of the documents for review. Consequently, I would dismiss the appeal.

            Representing the CBA in this matter were former CBA president Michele Hollins and Jim Lebo of McLennan Ross LLP, both of Calgary.

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            Housekeeping items: Following up on promises for MAID

            By CBA/ABC National November 25 2016 25 November 2016

              In June, the Liberals’ Bill C-14 on medical assistance in dying received royal assent despite widespread criticism that it was more restrictive than the Supreme Court’s ruling in Carter had said it need be. The saving grace was the government’s promise that it would carry out further study “in the context of mature minors, people for whom mental illness is the sole underlying condition and advance requests” within six months of the bill passing into law.

              With the six-month deadline approaching and “planning likely underway” to begin these studies, CBA President René Basque wrote to Justice Minister Jody Wilson-Raybould and Health Minister Jane Philpott to lay out the CBA’s position on these issues.

              At the CBA Legal Conference in Ottawa this past August, Council passed three resolutions proposed by the Association’s End of Life Working Group meant to advance the discussion on medical assistance in dying on the issues the Liberals have promised to revisit.

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              Action items for Canadian lawyers

              By Jennifer Taylor November 25 2016 25 November 2016

                Like many Canadians, I knew that Donald Trump could get elected on November 8, 2016 – I just didn’t think he would. (I dressed up as a Hillary Clinton campaign volunteer for Halloween, after all.) After much cathartic crying, hugging, and talking it out, I placed myself in the camp of those who want to use the election results as a catalyst for increased community involvement. I want to make sure we in Canada strengthen our defences against the kind of intolerance, racism, and misogyny that won the election south of the border.

                Most lawyers I know are already incredibly generous with their time and impressively involved in their communities, but as my favourite podcast Another Round reminded me last week, there’s always more we can all do in our own spaces. So without further ado, some ideas, in case you too are ready to start feeling a little more helpful and hopeful, and a little less helpless and hopeless:

                 

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                Will climate litigation come to Canada?

                By Justin Ling November 24 2016 24 November 2016

                  So Canada has ratified the Paris climate agreement.

                  Now what?

                  The accord, designed to spur action on cutting CO2 emissions, though unlike the Kyoto deal not “legally binding,” has been hailed as a triumph for advancing the fight against climate change.

                  Some uncertainty for the deal notwithstanding — U.S. President-elect Donald Trump has offered mixed messages about the deal and, indeed, whether he believes in climate change at all — the legal community is already honing in on what the international deal means for Canada.

                  And there’s good reason to prepare the briefs.

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                  Answer these three questions before building a legal app

                  By Sam Sasso November 24 2016 24 November 2016

                     

                    The reason why there are relatively few law-focused apps is not because of technical hurdles, or cost, or expertise: it is simply because few lawyers have turned their minds to ideas for apps. 

                    And yet, none of this is as complicated as it sounds.  It all starts with an idea, and lawyers come up with ideas all the time.

                    Once an idea is generated, you can build your app on your own, or use professional developers.  Trust me, it takes relatively little time and expense.  Neither should be a barrier in having an app produced.

                    Also, apps can range from doing one thing to being extremely complicated.  There is no need for an app to do more than one thing if that’s all that’s needed to address a concept.  So don’t feel that an app has to be elaborate.  Simple apps can work very well.

                    All that has to be done is for lawyers to use the same analytical process they use every day to answer any one of the following three questions.

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                    Legal futures round-up: November 22nd, 2016

                    By Brandon Hastings November 22 2016 22 November 2016

                       

                      Inspired by the CBA Legal Futures report on Transforming the Delivery of Legal Services in Canada, here’s our biweekly round-up of noteworthy developments, opinions and news in the legal futures space as a means of furthering discussion about our changing legal marketplace.

                      The Canadian Forum For Civil Justice makes the point that while legal technology is often assumed to improve access to justice, many existing legal tech projects focus on enhancing existing services, instead of expanding the ways in which justice may be accessed. Similarly, Patricia Hughes of the Law Commission of Ontario wants to make sure that an increased reliance on technology in justice doesn’t serve to further diminish access to justice through an assumption that everyone is conversant with technology.

                      Ryerson’s articling alternative, the Law Practice Program (LPP), came up for review in October. Though a Law Society of Upper Canada (LSUC) Committee initially recommended that the LPP be terminated, several commentators questioned that recommendation, including Jordan Furlong, Ian Holloway, and Noel Semple. On October 31, the Professional Development and Competence Committee reversed itself, recommending that the program be extended for another 2 years, and this extension has been granted. The debate has been divisive, to say the least. Detractors complain the program has done little to create more or better-trained lawyers, while proponents call it an innovative and effective tool for training new lawyers outside of the traditional articling paradigm.

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                      What's the big deal with AI anyway?

                      By Yves Faguy November 21 2016 21 November 2016

                         

                        Ryan McClead cautions against buying into the artificial intelligence hype that has taken over legal and mainstream media – not because it isn’t real, but because our own conception of AI  is a work in progress:

                        Google isn't considered AI, but it 'knows' what you're typing as you type, and then it filters a large portion of the web to give you the most relevant pages.  It would have easily been seen as AI twenty years ago.  Siri and Alexa personal assistants respond to voice commands and can return information instantly or actually perform tasks online, but they are considered borderline AI at best these days. Completely self-driving automobiles are still seen as Science Fiction and therefore are solidly in the AI column, but I predict they will NOT widely be considered AI by the time they are commercially available.  AI is a moving target. By the time a technology is commercialized it's no longer considered Artificial Intelligence.  Consequently, we fickle humans are consistently underwhelmed by the promise of AI even as AI fundamentally changes the world around us.

                        Ajay Agrawal, Joshua Ganz and Avi Goldfarb follow some “simple rules” as economists to make a similar point in the Harvard Business Review.  And just as digital technology in the 1990s helped bring down the cost of distributing information, machine intelligence will lead to a drop in the cost of prediction:

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                        After Hillary’s defeat: Still stronger together

                        By Rebecca Bromwich November 21 2016 21 November 2016

                          As a mother, and a law teacher of both undergrads and law students, I wondered what I should say the day after the U.S. Presidential election to my children, male and female, and to my students, particularly my female students, who I am trying to help instill with hope while sustaining my own.

                          On reflection, in the wake of the Trump victory, I am dismayed but also grateful, not just to woman leaders like Secretary Clinton, but also for the collegiality, over the years, of CBA members. It is in no small part through my involvement with the CBA that I have learned, as a woman and a lawyer, I face challenges that are shared by others, and, that in facing an uncertain future I am not alone.

                          Hillary Clinton is, of course, a Democrat, and an American, and a former first lady, all particular dimensions of her social location that we, as Canadian lawyers, do not share.  But there is an important way in which she is very much like us: She is a woman lawyer.  And that means the ways in which she was reviled, ridiculed, and ultimately defeated, are relevant to and hurtful for us.

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