The Power of Perspectives

The Canadian Bar Association

CBA/ABC National

UK

Legal challenges to triggering Brexit

By CBA/ABC National October 13, 2016 13 October 2016

Does it take Parliament’s approval to trigger article 50 to notify Britain’s withdrawal from the Treaty on European Union (TEU)?  According to Theresa May’s government, lawmakers need not vote on the matter.  But opponents to Brexit have filed a legal challenge arguing that it should have a say in determining the future of Britain’s relationship with the EU. The UK High Court begins hearings this week:

From the Guardian:

The case could open deep rifts in the consensus over the UK’s unwritten constitution. If the judges concluded that MPs should decide, the majority might not be in favour of leaving.

The government maintains that the decision to depart has been taken by the referendum on 23 June and that its executive powers, under the royal prerogative, are sufficient for David Davis, the Brexit secretary, to give notice on behalf of the cabinet.

At stake is whether the government can skip introducing legislation on formally leaving the EU.  Though the British Prime Minister recently took a hard stance on Brexit, a parliamentary vote would allow lawmakers the opportunity to shape the country’s withdrawal from Europe and replace membership in the EU with something more palatable to Remainers.

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The profession

Don’t axe the LPP program yet

By CBA/ABC National October 11, 2016 11 October 2016

Ian Holloway writes that it’s too early to give up on Ontario’s Legal Practice Program, calling it among the most innovative program to train lawyers in the last 70 years, citing Ryerson’s Legal Innovation Zone as one of the main beneficiaries:

What, then, was the problem? Why the recommendation to can the LPP? If, as the PD & C Committee said, the LPP might actually be a better educational product than articling, then why on earth should we want to get rid of it?

The answer, in a word, is brand. PD & C’s report noted that the majority of LPP students “appear to consider the LPP alternative as a second choice or, indeed, no choice at all.” And the fact is they were right. It’s true that today’s law students, if given a choice, would article rather than enrol in the LPP. Of course, they would, for that is the system by which almost every lawyer in Canada was trained. So it’s what seems reflexively “normal” to us. Moreover, the legal employment market is, to a significant degree, built on the idea of a year-long job interview.

Given this, how could anyone imagine that a set of professional biases as deeply ingrained as these could be undone in three years? For Heaven’s sake, that is less time than it takes many lawsuits to get to trial!

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CBA influence

CBA: Privacy Act should should require government to protect personal information

By CBA/ABC National October 11, 2016 11 October 2016

The Privacy Act and the Access to Information Act are two pieces of federal legislation whose time has come – to be amended.

The federal Privacy Commissioner sent the government a letter outlining 16 changes that he believes need to be made to the Privacy Act. The CBA’s Privacy and Access Law Section agrees with most of those changes – in fact it has made many of the same recommendations over the past decade or more. And it doubles down by saying the Access to Information Act – which, like the Privacy Act, has not been substantially changed in 34 years – must be amended at the same time. “Both statues have been treated as a package since they were enacted and there are compelling reasons to continue doing so,” the Section says.

In its submission, presented to the Standing Committee on Access to Information, Privacy and Ethics in late September, the Section notes that the review must also address the “supporting infrastructure.”

(Hear more from Gary Dickson, who appeared before the Committee for the CBA.)

“More than 30 years of experience with access and privacy laws in Canada dictate that we cannot achieve a truly robust set of information rights if we focus exclusively on the enabling statute,” the submission says. “The access and privacy infrastructure includes the role and work of the Treasury Board, the role and work of ATIP Coordinators, the Open Government initiative and a host of administrative and procedural matters that directly and indirectly affect individuals asserting their information rights under either or both statutes.”

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CBA influence

Time to act on pay equity

By CBA/ABC National October 11, 2016 11 October 2016

In February the federal government established a special committee on pay equity, and in June, as required by its mandate, that committee tabled a report on its findings, titled It’s Time to Act?

The second recommendation of that report is that the government take its time drafting pay equity legislation – a generous 18 months.

Recommendation #3 is that the new legislation “accept the overall direction of the 2004 Federal Pay Equity Task Force report and that the majority of the recommendations be adopted.”

So to recap: a 1956 federal law requiring equal pay didn’t close the gender wage gap. Neither did the 1977 law establishing a complaint-based system for equal pay for work of equal value. In 2016 a special committee suggests the government get around to drafting proactive legislation based on a report tabled 12 years ago that said it was time for women to be paid the same as men for work of equal value.

It’s time to act, indeed.

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Climate change

Reactions to Ottawa’s national carbon pricing plan

By CBA/ABC National October 7, 2016 7 October 2016

Jason Kroft, Jonathan Drance and Luke Sinclair size up the federal government’s plan to put a price on carbon:

While Trudeau’s Plan emphasized consistency between the provinces and suggested using existing regimes, such as British Columbia’s carbon tax or Ontario’s cap-and-trade, as policy anchors, the Plan doesn't yet adequately account for the fundamental differences between the two methods. The Plan also doesn't yet connect the proposed pricing floor with Canada’s commitments under the Paris Agreement at least not in any tangible way. For example, Alberta’s carbon pricing proposal, embraced by Trudeau’s Plan, aims to keep emissions flat until 2030, a far cry from the required 30% reduction under the Paris Agreement.

Richard Corley, Daniel Gormley and Catherine Lyons explain some of the impracticalities of transitioning to a low-carbon economy in Canada:

The pre-existing provincial carbon pricing models, together with the dim prospects for federal/provincial unanimity on carbon pricing, seems to have tied the federal government’s hands and to have made both the unilateral federal announcement and the return of all carbon revenues to the provinces and territories, necessary elements of the federal model. As a result, further federal action on climate change will have to be regulatory in nature and/or be funded from revenues other than the price on carbon. As the recipients of the carbon revenues, the provinces and territories will have the financial resources, and responsibility, to continue to take on a central role in achieving Canada’s climate change commitments. Under this decentralized model, it may also be more difficult for the federal government to implement carbon border adjustments (for example, as were contemplated by the ill-fated U.S. national (Waxman-Markey) cap and trade bill) which could become a more significant concern as the price on carbon continues to rise.

 

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