The Power of Perspectives

The Canadian Bar Association

Kim Covert


Automation bias may be the end of us all

By Kim Covert November 7, 2018 7 November 2018

Automation bias may be the end of us all


Game 2, Move 37. A machine, AlphaGo, made a move in the game of Go that no human would have made.

AlphaGo itself worked out the chances of a human making that move as one in 10,000.

That 2016 game marked a turning point in the field of artificial intelligence – the machine had been able to teach itself to make such a “genius” move.

Two games later, AlphaGo’s human opponent, Lee Sedol, one of the world’s best Go players, made a move that AlphaGo did not expect – another one in 10,000 move that threw AlphaGo off its game so badly that Sedol won his first and only game of the five-game match.

One thing that stands out for the world of AI in these games is that playing against the machine made the human player better – if AlphaGo hadn’t startled him so with Move 37, Sedol might not have made his own move, which followers dubbed “God’s Touch.”

The thing that’s important about Game 2, Move 37 as far as the law is concerned, says University of Ottawa professor Ian Kerr, is that the machine making an unprogrammed move was not a matter of product liability or failure – the move was unprogrammed but not, in a real sense unanticipated.

We need new paradigms for thinking about a world where machines can teach themselves to do things humans wouldn’t, Kerr told a recent CBA Privacy and Access to Information Law conference session on artificial intelligence.

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CBA influence

Input tax credit rules ain’t broke – careful how you fix ‘em

By Kim Covert October 30, 2018 30 October 2018


The CBA’s Commodity Tax, Customs and Trade Law Section was happy to respond to Finance Canada’s proposed amendments to GST/HST holding corporation rules issued in July. But it had one big question about the changes: Why?

The current rules are effective and accomplish their goal, the Section says in a letter to the Department of Finance. It notes that the courts have adopted a flexible and sensible approach to input tax credits, where GST/HST credits should be recoverable as a matter of tax credits.

“Given the current constructive state of the rules, we trust that the rationale for the proposed amendments is to clarify (and not restrict) the existing approach to ITCs for holding corporations,” the Section says. “We would appreciate, however, clarification on the rationale for the proposed amendments.”

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CBA influence

Quantum of political participation: Proposed changes remove limits for charities

By Kim Covert October 29, 2018 29 October 2018


Draft legislation that would lift the limits placed on non-partisan political activities by charitable organizations are a welcome change, says the CBA’s Charities and Not-for-Profit Law Section.

“These proposals will hopefully afford charities more freedom to conduct non-partisan political activities, such as public advocacy, than in the past, which we support,” the Section says in a submission to Finance Canada’s Tax Policy Branch.

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Privacy law

‘Tis better to govern data, than to own it

By Kim Covert October 25, 2018 25 October 2018


University of Toronto professor Lisa Austin’s problem with the idea that data is the new oil isn’t so much with the idea that data is an asset that can be shared.

“The discussion is who should own the data, but where’s the discussion over whether data is a thing that can be owned?”

The basic characteristic of ownership, she told the CBA’s Privacy and Access Law symposium in Ottawa in October, is the right to control or transfer a thing, and others’ obligation not to interfere with that thing.

But if you start from the idea of ownership, she says, there’s very little in the law that says that control or ownership needs to be exercised reasonably.

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CBA influence

Proposed workplace harassment regulations put burden on the victim

By Kim Covert October 24, 2018 24 October 2018


If the #MeToo movement has done nothing else, it has started a conversation about how difficult it can be for victims of abuse and harassment to come forward. When the abuse and harassment are happening in the workplace, there can be additional obstacles for victims – regardless of gender – to overcome.

The CBA’s Labour and Employment Law Section and the CBA Women Lawyers Forum say the burden for making changes in the workplace should not fall on the victim. They suggest the proposed regulatory framework for Bill C-65, which addresses workplace violence and harassment in federally regulated workplaces, should “explicitly contemplate” that witnesses can also bring a complaint. And they don’t stop there.

“Even in the absence of a formal complaint, the employer may become aware of possible workplace harassment or violence and have an obligation to investigate and address the situation due to potential harm and liability,” the Sections say in their submission to Employment and Social Development Canada (ESDC). “We recommend that a formal complaint not be necessary to trigger the employer’s responsibility to investigate and remedy a situation of workplace harassment or violence.”

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