The Power of Perspectives

The Canadian Bar Association

Mark Bourrie

Indigenous rights

Williams Lake: Crown breached fiduciary obligation at Confederation, top court rules

By Mark Bourrie February 2, 2018 2 February 2018

Williams Lake: Crown breached fiduciary obligation at Confederation, top court rules

The Canadian government is responsible for breaches of the obligations of pre-Confederation colonies to Indigenous peoples under federal legislation aimed at resolving land claims, the Supreme Court of Canada ruled in a close decision.

In Williams Lake v The Queen, the court also continued to use its decisions to strengthen the hand of tribunals to determine issues of fact and law, and found “reasonableness” to the standard of review of the Specific Claims Tribunal. This tribunal, made up of superior court judges, determines whether First Nations have property rights to specific piece of land.

In Williams Lake, the Williams Lake Indian Band argued at the Specific Claims Tribunal that the band had lived in a settlement on Williams Lake before the British Crown established a colony in what is now British Columbia in 1858. Legislation enacted by that colony guaranteed Indigenous people that settlers would not take their land.

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Competition law

Big data and merger reviews

By Mark Bourrie November 3, 2017 3 November 2017

Big data and merger reviews

 

Canadian policy makers should look at the effects on the economy of mergers of big data corporations, rather than see these deals as a threat to privacy, experts told a Canadian Bar Association conference on competition law last week.

Speaking at the Ottawa session, Paul Johnson, a former Washington, D.C.  economist who now holds the T.D. MacDonald Chair in Industrial Economics at the Conference Board of Canada, said over-enforcement of competition law could stifle technical innovation in Canada.

This was the tack taken by the Competition Bureau in a position paper released by the Competition Bureau Sept. 18, and now the focus of consultation.

“Data’s been around since the 1800s,” Johnson told about 75 competition lawyers who attended the CBA Competition Law conference session on big data and competition regulation. “Dunn and Bradstreet is a data company. They were founded at the mid-19th century. There have been big data anti-trust cases for quite some time. 

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Tax

Closing tax loopholes for professionals who incorporate

By Mark Bourrie July 19, 2017 19 July 2017

Closing tax loopholes for professionals who incorporate

 

Canada’s finance minister is taking aim at professionals who use personal corporations to avoid income tax.

Mentioning lawyers and medical doctors specifically, Bill Morneau said the federal treasury is missing out on about $500 million per year because of the way professionals are handling their corporations. There has been an eight-fold increase in the number of corporations created in Canada under federal and provincial laws since 1972, Morneau said.

The minister said the government will close loopholes that all corporation owners to dodge taxes three ways:

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Arbitration

Supreme Court makes it harder to appeal arbitration awards

By Mark Bourrie June 26, 2017 26 June 2017

Supreme Court makes it harder to appeal arbitration awards


The Supreme Court of Canada has made it even tougher to go to court to overturn decisions made by arbitrators.

It has ruled that the courts, when reviewing an arbitrator’s interpretation of statute, should use the reasonableness standard and tease out questions of law from issues of fact.

In its ruling last week in Teal Cedar Products Ltd v British Columbia, the Supreme Court overturned a British Columbia Court of Appeal decision that had allowed judicial review of an arbitrator’s decision in a dispute between a forestry company and the province. It re-affirmed its 2014 Sattva decision and tightened the standard of review.

By doing so, the court further limited the rights by parties to seek judicial review of arbitration decisions.

Arbitration clauses are increasingly being written into consumer contracts, agreements between large companies, and between governments and private companies. In this case, the parties were governed by arbitration rules written into a piece of provincial legislation, B.C.’s Revitalization Act.

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Criminal justice

Unanimous SCC confirms Jordan framework on trial delays

By Mark Bourrie June 16, 2017 16 June 2017

Unanimous SCC confirms Jordan framework on trial delays

 

The Supreme Court of Canada has sent a very clear message that it won’t roll back the timelines for trials that it set last year in R v Jordan.

In a unanimous decision in R v Cody released June 16, seven judges (including Wagner and Gascon, who dissented in Jordan), ruled that the Supreme Court will not give a break to provincial attorneys general who are struggling with the Jordan timelines. Anecdotal evidence suggests hundreds of stays have been issued in trials of summary and indictable offences across Canada after the Jordan rules were set last year.

In its Friday ruling, the court ruled in favour of an alleged St. John’s cocaine dealer whose drug and weapons charges were stayed at trial after five years of delay caused by actions of both the Crown and the defence. The Newfoundland and Labrador Court of Appeal ruled 2-1 to strike the stay and send the case back for a new trial.

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Mark Bourrie holds a PhD in Canadian and military history. He is a National Magazine Award winner and is now a second-year law student at the University of Ottawa. He is the author of the best-selling Kill the Messengers: Stephen Harper's assault on your right to know. Bourrie's 13th book, The Killing Game, an analysis of ISIS propaganda and recruitment, will be published by HarperCollins in April, 2016.

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