The Power of Perspectives

The Canadian Bar Association

Doug Beazley

Administrative law

Rebooting the standard of review: Can it be done?

By Doug Beazley October 9, 2018 9 October 2018

Rebooting the standard of review: Can it be done?

 

In December, the Supreme Court of Canada will hear three concurrent appeals touching on one awkward question: where courts should draw the line on revisiting, and overturning, the decisions of government-appointed panels and individuals tasked by governments with administering the law.

The facts of the appeals are intriguing enough on their own. One deals with a government decision to rescind the citizenship of a Canadian-born son of Russian spies. The other two are going after the CRTC’s decision in 2016 to prohibit the practice of “simultaneous substitution” — buying American TV programming (in this case, the Super Bowl) and swapping American commercials for Canadian ones.

Espionage and football — a weird combination that guarantees intense media interest. But that’s not why lawyers will be watching.

Administrative law — the law that governs the actions of a wide spectrum of government-empowered administrators making binding legal decisions — tends to be both low profile and ubiquitous.

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Trade

Why the U.S. agreed to scrap NAFTA’s Chapter 11

By Doug Beazley October 5, 2018 5 October 2018

Why the U.S. agreed to scrap NAFTA’s Chapter 11

 

Complex, sprawling international trade treaties like the new United States-Canada-Mexico Agreement, or USMCA (or NAFTA 2.0, if you find President Trump’s preferred title a little lumpy), can be difficult to sell to hardcore ideologues. Big treaties have a lot of moving parts; one side gives something up to get something, while the other side does much the same.

So USMCA has a couple of features that aren’t easy to file away as ‘left’ or ‘right’. Take, for example, the fate of NAFTA’s Chapter 11 — the ‘investor-state dispute settlement’ (ISDS) chapter that managed conflicts between nations and foreign investors.

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Environment

Right to be forgotten sets privacy against freedom of expression

By Doug Beazley September 11, 2018 11 September 2018

Right to be forgotten sets privacy against freedom of expression

 

Sir Timothy John Berners-Lee, the British engineer credited with inventing the World Wide Web, called it “dangerous.” Jimmy Wales, founder of Wikipedia, described it as “deeply immoral.” The New York Times warned darkly that it could “undermine press freedoms and freedom of speech.”

“It” is the 2014 ruling by the Court of Justice of the European Union upholding a regulatory agency’s decision to order Google to delete any links to an old news article about an auction of some property belonging to a Spanish lawyer.  The court agreed the old story was no longer relevant, introducing to the EU what many have called a new human right — the “right to be forgotten.”

The debate over the propriety of a right to be forgotten — RTBF, for short — has been raging on both sides of the Atlantic ever since. Its proponents say it’s the only way to protect personal privacy in an age when online information is practically permanent and universally accessible. The Office of the Privacy Commissioner got the ball rolling in Canada with a call for submissions on RTBF and online reputation in 2016, and the release of a draft position paper on the subject in early 2018.

 

Photo: Licensed under Creative Commons by www.quotecatalog.com. Some rights reserved

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Insolvency

Lenders vs pensioners: Whose claims should be preferred?

By Doug Beazley September 6, 2018 6 September 2018

Lenders vs pensioners: Whose claims should be preferred?

Attilio Malatesta worked in sales for Sears Canada for more than four decades. In early August, he got the news he’d been dreading: his pension was being cut by $800 a month.

"Who the hell's going to hire a 73-year-old guy?" he said. "I can only stay on my feet for so many hours. I have arthritis.”

When Sears went under in early 2018, it left behind a pension plan burdened with a $260 million actuarial shortfall serving about 18,000 former employees. That shortfall is forcing deep cuts in retirees’ incomes, pushing many of them back into the job market late in life.

This fall, the retirees are going to court to seek an order for a priority claim on Sears’ remaining assets to shore up the pension plan. Even if they win, they’ll lose: those assets can only cover a little more than half of the shortfall.

And the retirees’ case stands a good chance of falling down in the face of a basic aspect of Canadian insolvency law: when a failed company’s pension plan can’t pay what it owes, retirees typically find themselves at the tail end of a long queue of creditors.

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Criminal law

Can Holocaust denial legally be considered hate speech?

By Doug Beazley August 9, 2018 9 August 2018

Can Holocaust denial legally be considered hate speech?

“The past,” William Faulkner wrote, “is never dead. It's not even past.” He wasn’t talking about the legacy of the Second World War — but he might have been.

Around the world, racist and far-right movements are on the march. In Canada, a media marketing firm reported a sixfold increase in online hate speech between 2015 and 2016. In the United States a year ago, a resurgent far-right movement erupted into the public sphere with a rally of torch-bearing white supremacists in Charlottesville, Virginia that ended with the death of a counter-protester. Throughout Europe, far right and anti-immigrant political movements have been making strides in politics, while in Germany, one university study found that the share of online content classified as anti-Semitic rose from 7.5 per cent in 2007 to more than 30 per cent in 2017.

Against that backdrop, the trial of Monika Schaefer in Germany might seem like small beer. Schaefer, a German-Canadian (and a former Green Party candidate in Alberta) has published multiple videos online denying the fact of the Holocaust. She was arrested on January 3 while visiting relatives in Germany and now faces six charges of “incitement of the people.” She faces up to three years’ imprisonment on each charge.

(Photo: Some rights reserved by Luke McKernan)

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