The Power of Perspectives

The Canadian Bar Association

National Blog

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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            Consulting firms position themselves in an evolving legal landscape

            By Joseph Donia November 21 2016 21 November 2016

              Recent headlines might have you thinking that the legal sector is under siege. Disruptive technology, globalized markets, increased client expectations and downward price pressure might have some fresh graduates re-thinking their decision to go to law school. Clearly, the times are changing.

              While the bulk of attention has been focused on the effects of disruptive technologies like AI and automation, a new threat to the status quo has been quietly evolving – the multidisciplinary professional service organization (MDP).

              You are likely familiar with the better known MDPs - the so-called ‘Big Four’. It’s been a while since the Big Four have been in the accounting business. After rebranding and repositioning as MDPs in the early 1990s, they and other firms have steadily increased the range of their offerings.

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              Wake-up call: Canada’s human rights abuses and global trade

              By Supriya Tandan November 18 2016 18 November 2016

                Lost in the noise amidst all the discontent with trade agreements, is how little international labour laws are enforced in foreign countries, where labour is often cheap. A spate of lawsuits against Canadian mining companies operating abroad could change that.

                In a recent decision handed down by the British Columbia Supreme Court, Araya v. Nevsun Resources Ltd, Justice Patrice Abrioux ruled that a lawsuit launched by Eritrean miners alleging human right abuses could proceed to trial. These are foreign claimants who are relying on customary international law to sue a Canadian company in Canada. The major issues at play include applications of forum, the act of state doctrine and the use of customary international law within British Columbia/Canada.

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                The “normalization” of Trump and implications for the right to equality in Canada

                By Kerri Froc November 17 2016 17 November 2016

                  Those on the left are still in a state of shock and dismay following the Donald Trump as President of the United States on November 9, 2016.  The late-night comedy shows lately have felt more like wakes than entertainment. Kate MacKinnon on Saturday Night Live (for the last time in her Hillary Clinton get-up) sang Leonard Cohen’s Hallelujah, ending with a promise and  a call to perseverance: “I’m not giving up and neither should you.” One strategy touted repeatedly by the media this week as part of “not giving up” is to resist the “normalization” of Trump and his administration. 

                  In this context, Hua Hsu of the New Yorker this week suggested that “normalization” is “the ways in which dangerous things come to be viewed as just another part of everyday life…It’s on the late-night talk show, when the comedian giggles as he tousles Donald Trump’s hair, signalling that this madman can take a joke; it’s in the life-style magazine that works to humanize him and those around him.”  The danger, he says, is that normalization “shapes our field of vision; it tells a story of the world and its possibilities.”

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                  NAFTA and good faith breaches of Canadian law

                  By Justin Ling November 16 2016 16 November 2016

                    NAFTA is racking up enemies, lately. An ongoing fight surrounding the rejection of coastal quarry and marine terminal in Nova Scotia stands to either vindicate those naysayers, or serve as a sorely needed win for the defenders of Donald Trump’s least favourite trade deal.

                    The trade fight was sparked by a 2007 judgment from a Canada-Nova Scotia environmental assessment review panel that denied Bilcon, a Delaware-registered construction company that was looking to expand its quarry mine near Digby, by installing a new marine terminal to ship the basalt to a processing plant in the United States.

                    The panel, according to a backgrounder from the federal government, concluded the terminal “should not be permitted to proceed because it would have a significant and adverse environmental effect on ‘community core values.’” Ottawa drew the same conclusion under the Canadian Environmental Assessment Act.

                    Instead of appealing the decision domestically, in 2008 Bilcon filed a NAFTA challenge under Chapter 11, which protects the interests of foreign investors.

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                    The growing prestige of the legal ops professional

                    By Yves Faguy November 15 2016 15 November 2016

                      We live in pretty fluid times, where all professionals are seeking out a competitive edge. Over the last few years much of the discussion in legal circles has focused on how the legal industry has shifted from a seller’s to a buyer’s market. The presumption flowing from that is that the shift is empowering in-house counsel who are increasingly demanding that external firms do more for less.

                      Now, things move slowly in the legal world.  Altman Weil, in its 2016 Chief Legal Officer Survey, revealed something interesting recently that D. Casey Flaherty picks up on, namely that law departments are, more often than not, neglecting to ask their firms to change their ways:

                      Reorganizing those numbers a bit, only 30.8% of CLOs rate themselves satisfied because they generally are (17.4%) or because they are pleased with their results from asking for change (13.4%). Of 69.2% who are not satisfied, the vast majority have not exercised their inherent authority to ask for change because they are focused only on outcomes/don't think it is their job to ask (43.2%) or have simply taken their business elsewhere (11.7%). The remaining 14.5% asked for change but did not get it.

                      This is what one might call an impasse:

                      - Law firms are waiting on clients to make them change

                      - Clients are waiting on law firms to be proactive or change in response to market pressure

                      Well, it's an impasse that may not last for long.  Thomson Reuters released a report, in which it fully acknowledges that there are no dramatic shifts in change implementation strategies carried out by law departments, save perhaps one. GCs are relying more and more on legal department operations professionals:

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                      Seeking clemency: It’s time to let Leonard Peltier go

                      By CBA/ABC National November 14 2016 14 November 2016

                         

                        “I know that to watch him die in prison, without clearing his name, would devastate our family even more than the past four decades have.” – Kathy Peltier, writing in Time magazine in August

                        In August, about the same time that Kathy Peltier was waiting anxiously to hear whether President Barack Obama had added her father’s name to the list of pardons in his last year in office, CBA Council passed a resolution to add its voice to the chorus of those pleading for clemency for a man who has spent 40 years in prison after being convicted on fraudulent evidence.

                        Leonard Peltier was present when two FBI agents were killed at the Pine Ridge Reservation in South Dakota in 1975. But he was later extradited from Canada and faced murder charges in their killings based on what has been proved to be faulty evidence. And yet he remains in prison, 70 years old and ailing.

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                        NAFTA: Goodbye to all that?

                        By Yves Faguy November 11 2016 11 November 2016

                          Canada and Mexico, it seems, are now happy to renegotiate NAFTA. But what if a President Donald Trump were really to scrap NAFTA, as he has promised he would if he can’t what he wants out of renegotiations? Article 2205 stipulates that “a Party may withdraw from this Agreement six months after it provides written  notice of withdrawal to the other Parties.” It’s unclear whether Trump could act alone or whether he would require a vote from Congress. Still it’s worth remembering, there is still an underlying 1989 Free Trade Agreement between the U.S. and Canada, which was never repealed. Thomas Walkom suggests that the end of NAFTA wouldn’t be all bad for Canada because, contrary to NAFTA, the 1989 FTA doesn’t have an investor-state dispute settlement mechanism:

                          A 2015 study found that of the completed NAFTA disputes involving Canada, roughly half were decided in favour of the corporations.

                          Others never made it to the dispute-resolution stage because Canadian governments caved in.

                          By contrast, no Canadian corporate attempt to challenge U.S. laws under NAFTA has ever succeeded.

                          In short, a U.S. decision to pull out of NAFTA could benefit this country. Technically, Canada and Mexico could continue on with the pact. But it was designed around the giant U.S. market and makes little sense without it.

                          Wishful thinking perhaps. Michael Geist tries to guess at what NAFTA renegotiations might look like:

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