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The Canadian Bar Association

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Legal futures round-up: January 10, 2017

By Brandon Hastings January 10 2017 10 January 2017

     

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

    Burford Capital, the world’s largest litigation finance company the world, bought its main rival Gerchen Keller Capital for $US 160 million. The tie-up has commentators calling it a sign that the litigation funding industry is maturing in the U.S.

    According to a recent roundtable, summarized in this white paper, commentators expect that litigation funding will become increasingly prevalent in Canada. As a new wave in legal business, and an access to justice initiative, litigation funding (where large pieces of litigation is financed by third parties) litigation funding could help change the liability landscape in Canadian courts. Litigation which attracts funding currently requires a claim of $10 to $15 million.

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    Political activities for charities: Reframe the question

    By Kim Covert January 9 2017 9 January 2017

      The personal is political – and so is the charitable it seems. Federal regulations limiting activities of a political nature have left charities tying themselves into knots and spending valuable resources trying to decide whether any given activity or statement is political – or more importantly perhaps, could be perceived to be so.

      The problem is worsened by the fact that many things a charity does can be seen through the lens of political activity. Charities have a unique role to play in public policy debates, as acknowledged in the government’s public policy guidance on political activities, which states in part:

      Through their dedicated delivery of essential programs, many charities have acquired a wealth of knowledge about how government policies affect peoples’ lives. Charities are well-placed to study, assess, and comment on those government policies. Canadians benefit from the efforts of charities and the practical, innovative ways they use to resolve complex issues related to delivering social services. Beyond service delivery, their expertise is also a vital source of information for governments to help guide policy decisions. It is therefore essential that charities continue to offer their direct knowledge of social issues to public policy debates.

      But with limits placed on political activities, many in the voluntary sector feel it’s not worth the risk to undertake them.

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      My resolution for legal education: Breaking through the echo chambers

      By Rebecca Bromwich January 6 2017 6 January 2017

         

        2017. It is a new year, a time of new snow, and a time for new ideas. I suggest one counter-cultural notion for all of our consideration that is more often expected from a right-wing thinker than a soft leftie like me:  what if legal classrooms are not meant to be safe spaces?  What if they need to be raw with articulated disagreement and debate in order for learning, and democracy, to take place?

        The echo chambers of the 2016 U.S. election have insight to offer us about legal education.  My resolution for 2017 follows from this.  I want to encourage disagreement to take place within my classrooms when I teach. My resolution for 2017 is to do as Desmond Tutu says, “If you want peace, don’t talk to your friends, talk to your enemies.”

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        Third-party litigation funding enters a new chapter

        By Yves Faguy December 22 2016 22 December 2016

          Last week, Burford Capital, the world’s largest litigation finance company the world, Ltd., bought its main rival Gerchen Keller Capital for $US 160 million. The tie-up is being hailed as  a sign that the litigation funding industry is maturing in the U.S (it is far more established in other jurisdictions, namely Australia and the UK).

          Alison Frankel reported on the reasoning behind the tie-up:

          The two companies operate via different business models - and the combined Burford plans to continue to use them both. Burford's management owns 13 percent of its publicly traded equity, so its principals make money alongside investors when the firm's investments pay off.

          Gerchen Keller, by contrast, is structured like a hedge fund. It has raised more than $1 billion in a handful of closed-end investment vehicles, mostly from large institutional investors such as university endowments and public pension funds, including Michigan and Texas municipal employee funds.

          Gerchen Keller earns a stream of income from the 1-to-2 percent management fees it charges for deciding how to invest the money it has raised. It may also bring in performance fees of 15 to 50 percent if its investment decisions pay off. Gerchen's funds have not been in operation long enough to have kicked off performance fees, which will belong in the future to the combined entity.

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          Apple's legal challenge to EU's Irish tax decision

          By Yves Faguy December 20 2016 20 December 2016

             

            Apple and the Irish government are challenging the European Commission’s August ruling, published yesterday, ordering Ireland to recoup undue tax breaks to the tune of $13 billion euros. The Commission found that the Irish government had selectively conferred an advantage on the iPhone maker – a measure, it says, that carries the risk of distorting competition and affecting trade between EU member states.

            Under the terms of the Treaty on the Functioning of the European Union, the measure amounts to state aid, which is forbidden under the common market’s rules.

            Apple has responded by charging that the EU has “retroactively changed the rules, disregarding decades of Irish tax law, U.S. tax law as well as global consensus on tax policy." The Irish government is making the case that tax matters are for each member state to decide.

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            Acting on the Indian Act

            By CBA/ABC National December 15 2016 15 December 2016

               

              If the government enacts Bill S-3 – or some version of it – on or before the Feb. 3, 2017 deadline set by the Quebec Superior Court, as many as 28,000 to 35,000 people could become eligible to be registered as Status Indians under it.

              And the proposed legislation’s lack of provision for that eventuality is just one of the concerns the CBA’s Aboriginal Law Section talked about in its submission when it appeared before the Senate Committee on Aboriginal Peoples on Nov. 29 and before the House Committee on Indigenous and Northern Affairs on Dec. 5.

              The submission traces the long history of steps toward Bill S-3, including the 1985 Indian Act amendments that fell short of their intention to eliminate discrimination against women in the Indian Status registration system, as it retained a gender-based inequity in generations to come. 

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              Would Canada’s framework on climate change withstand a constitutional challenge?

              By Supriya Tandan December 15 2016 15 December 2016

                 

                Last week, eight provinces and all three territories signed the Pan-Canadian Framework on Clean Growth and Climate Change, with a view to meet the country's target to reduce emissions by 30 per cent, relative to 2005, by 2030. Provinces who are already well on their way to meeting the framework include Ontario, Québec and Alberta. Opposing the framework are Saskatchewan and Manitoba, each for their own reasons. Those who have signed on have yet to announce the exact measures they will take to match the federal timetable.

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                The common interest: When privileged information is shared

                By Alexander Gay December 14 2016 14 December 2016

                   

                  In-house counsel are often asked to share privileged materials with third parties that have a common interest in a piece of litigation. Common interest privilege is a category of privilege that permits parties to disclose privileged evidence between themselves without losing privilege. The determination of common interest is a factual one, which may consider whether the parties share a common goal, seek a common outcome or have a self-same interest on either or both the general claims (e.g., both sued for exactly the same alleged misconduct) or certain specific allegations (e.g., an expert report on one specific matter in issue). Common interest privilege is asserted and the documents are shared—often with little to no understanding about the nature of the privilege claim being asserted or how to best share documents with the third party in a way that protects its subsequent dissemination.

                  A common interest privilege is not a stand-alone privilege that can be claimed on all documents shared with third parties in the face of actual or impeding litigation. In order to claim the benefit of a common interest privilege, the documents must benefit from either solicitor-client privilege or litigation privilege. Where the privileged document is shared, both the originating party and the third party receiving the document can claim a common interest privilege, independent of one another.

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                  Real solutions for fixing court delays

                  By CBA/ABC National December 13 2016 13 December 2016

                     

                    Earlier this month, Ontario’s Attorney General Yasir Naqvi (pictured above) and Quebec’s Justice Minister Stephanie Vallée both announced measures to reduce the seemingly intractable problem of court delays in our justice system, primarily by promising to hire more judges and prosecutors and to inject cash into the justice system.  Nova Scotia appears to be leaning more heavily on restorative justice programs as way of moving offenders charged with less serious crimes away from the court system.

                    Michael Spratt calls these band-aid solutions. He argues for the government to start reigning in prosecutors:

                    Any public anger should rightly be directed at the actions of the Crown. And this is where the government’s attention should be focused. A handful of additional judges and prosecutors will do little to change a systemic Crown culture of complacency, possessiveness and overzealousness.

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                    Rights of the child: Have we really come such a long way?

                    By The Hon. Donna J. Martinson, Caterina E. Tempesta and Suzanne S. Williams December 13 2016 13 December 2016

                       

                      Twenty-five years after ratifying the United Nations Convention on the Rights of the Child (CRC) Canada ranks 17th out of 29 affluent nations for children’s overall wellbeing. Canada drops to 26th for inequality between the most affluent and least affluent children. Children of all backgrounds are affected by our poor performance, but high risk and marginalized youth are particularly vulnerable.  So, what can lawyers do to improve the state of Canadian children?

                      Since Canada ratified the CRC on December 13, 1991, it has become the most universally accepted human rights instrument with all but one country in the world having ratified it. The CRC contains a bundle of civil, political, economic, social and cultural rights to support children’s optimal development and wellbeing.

                      While the CRC is not directly incorporated into domestic law through enabling legislation, it is referenced in Canadian law in limited instances, for example, the preamble to the Youth Criminal Justice Act, and has been cited in Supreme Court of Canada decisions. Canada’s position is that such enabling legislation is not required as it ensured when the CRC was ratified and continues to ensure that its laws, policies and practices comply with the CRC. It is presumed that Canadian statutes conform to the CRC and other international instruments.

                      However, in the most recent “report card” on Canada’s CRC compliance, the UN Committee on the Rights of the Child said the absence of comprehensive CRC legislation results in inconsistencies in implementing child rights across the country.  Limited awareness of the CRC among not only children, but also adults, was noted by the Committee, as well as the need for child rights training for professionals working with children, including judicial authorities.

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                      US extraterritorial hacking warrants in effect

                      By Mariane Gravelle December 12 2016 12 December 2016

                         

                        As the landscape of our society has changed significantly with the advent of the internet, it should come as no surprise that an extensive amount of criminal activity takes place online. This poses new challenges to law enforcement agencies as the development of rules and regulations has not been as quick to evolve as technology has.

                        In April 2016, however, the Supreme Court of the United States approved changes to rule 41 of the Federal Rules of Criminal Procedure, which came into effect last month, that allow law enforcement agencies to obtain search warrants that are enforceable in extraterritorial jurisdictions. Simply put, this will allow American law enforcement agencies to, amongst other things, hack into the computers of individuals located outside of the jurisdiction they operate in. These changes came into effect Thursday December 1st, 2016.

                        Of the changes, Motherboard contributor Joseph Cox writes

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                        Building a legal app: What principle do you want to teach?

                        By Sam Sasso December 12 2016 12 December 2016

                           

                          When coming up with an idea for building a legal app, the first question you should answer is what principle it is that you want to teach.

                          Start with the area of law you enjoy most.  Be honest.  It's okay to enjoy tax law above all others.  Personally, insurance is my favourite.

                          Make the principle you want to teach as personal as possible, that is make sure it's something you are going to work on for hours on end, or present to your clients or other lawyers as part of a seminar.  With any luck, you could become a go to person with respect to that principle, so make it one that you would like to be attached to for a while.

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