The Power of Perspectives

The Canadian Bar Association

Doug Beazley

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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Environment

Climate change litigation: Public nuisance strategy latest to fail

By Doug Beazley July 13, 2018 13 July 2018

Climate change litigation: Public nuisance strategy latest to fail

 

You’ve got to give him credit — he did the homework.

Last March, U.S. District Court Judge William Alsup was hearing a lawsuit filed by the cities of San Francisco and Oakland against five major oil firms on a claim of “public nuisance”, seeking compensation for the damage done by human-driven climate change. Alsup ordered the defendants and plaintiffs to take part in a five-hour tutorial explaining the ins and outs of climate science. By the end of it, he was arguably more qualified to hold forth on the topic than any member of Congress.

From the plaintiffs’ point of view, it didn’t help. Last month, Alsup threw out the lawsuit, saying the question of whether private firms can be held accountable for the climate effects of consuming a legal product is one for politicians to answer, not judges.

Previous attempts to pursue climate change nuisance claims under American federal law had foundered at the U.S. Supreme Court, which ruled in 2011 that the federal common law of ‘nuisance’ had been displaced by the passage of the Clean Air Act in 1963. Activists in the U.S. and Canada hoping to use the courts to do what most governments seem reluctant to do — hold energy companies directly accountable for the consequences of carbon pollution — have to see Alsup’s decision as a setback (even if it’s a symbolic one in Canada’s case).

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Employment

Legal marijuana and the challenges of workplace drug testing

By Doug Beazley June 26, 2018 26 June 2018

Legal marijuana and the challenges of workplace drug testing

 

As the federal Liberals will no doubt remind you over the coming year, they made history this spring. The Senate (after a lot of grumbling, and the rejection by the government of a stack of amendments) passed C-45, the bill creating a legal market for recreational marijuana.

Prime Minister Justin Trudeau called it a promise kept. His opponents called it a catastrophe in the making. The Liberals were sending out fundraising emails on the topic within a day of the bill’s passage.

Mission accomplished? Not by a long shot. Provinces still have to define rules for transport and sale. Municipalities need to settle questions about zoning. There could be a court battle between Ottawa and provinces that wish to restrict or ban home cultivation.

But the biggest gap in the legal framework surrounding recreational cannabis has to do with the workplace. 

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