The Power of Perspectives

The Canadian Bar Association

Yves Faguy

Justice

David Lametti, Canada’s new Minister of Justice and Attorney General

By Yves Faguy January 14, 2019 14 January 2019

David Lametti, Canada’s new Minister of Justice and Attorney General

 

David Lametti has been sworn in as Canada’s new Minister of Justice and Attorney General of Canada, replacing Jody Wilson-Raybould.  The Montreal MP for LaSalle-Emard-Verdun steps into his new role as Prime Minister Justin Trudeau was prompted to shuffle his cabinet following last week’s announced departure of former Treasury Board president Scott Brison.

“On behalf of CBA members, I congratulate the new Minister on his appointment. We look forward to meeting him in the coming weeks to discuss issues of mutual interest on which we can work together,” said CBA President Ray Adlington. He also wishes former minister Wilson-Raybould well as she takes up her new duties as Minister of Veteran Affairs. He acknowledged her efforts at handling many challenging justice files — from the legalization of cannabis to medical assistance in dying and criminal law reform. “Minister Wilson-Raybould also deserves recognition for all her success in diversifying the Canadian judiciary through her appointments.”

Lametti, previously a well-regarded parliamentary secretary to Innovation Minister Navdeep Bains, was a law professor at McGill before he entered politics. He taught civil and common law property, intellectual property, property theory, and ethics, and co-founded the Centre for Intellectual Property Policy.  He won his riding's seat in Parliament in the 2015 federal election.

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Litigation

Expert evidence: What is reliable specialized knowledge?

By Yves Faguy January 8, 2019 8 January 2019

Expert evidence: What is reliable specialized knowledge?

 

There is always a risk that experts will unduly influence the outcome of a trial. Because of this, Jason M. Chin notes in a recent Canadian Bar Review article, courts will scrutinize the reliability of their evidence by branding the expertise as either science or “specialized knowledge” – all depending on “the witness’ training, experience, and research.”

Chin takes a careful look at Ontario’s leading opinion on the issue, a 2009 Court of Appeal ruling in R v Abbey, which distinguished between the “product of scientific inquiry” and “specialized knowledge gained through experience and specialized training in the relevant field.” The author is critical of this categorization and it’s worth noting that the Abbey ruling involved evidence that was admitted, but later discovered to be unreliable.  Still, according to Chin, courts have often relied on the Abbey ruling to justify giving almost no scrutiny to specialized knowledge.  He calls for more scrutiny over the manner of demonstrating transparency and proficiency of the expert, given the task at hand:

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Contracts

Online boilerplate contracts and the muddle of judicial policymaking

By Yves Faguy January 3, 2019 3 January 2019

Online boilerplate contracts and the muddle of judicial policymaking

 

When, in 2017, the Supreme Court of Canada ruled in Douez v. Facebook that the Privacy Act superseded the forum selection clause in Facebook’s boilerplate terms of use, it was continuing an unfortunate trend, in contract law, of blurring the lines between policymaking and doctrinal considerations. That’s the takeaway from Jason MacLean’s recently published article in the Canadian Bar Review.

Briefly, in Douez v. Facebook, a B.C. woman succeeded in getting a class action certified against Facebook for deploying its users’ photos in its sponsored content postings, in violation of the province’s Privacy Act. Facebook countered, however, that the B.C. Supreme Court, which handles all Privacy Act cases in the province, was not the right venue. Indeed, she had agreed to the media giant’s terms of use, and that California would be the jurisdiction to litigate any disputes arising from them. The SCC ultimately held that the Privacy Act superseded the forum selection clause in Facebook’s terms, and in doing so slightly modified an earlier two-step test (the Pompey test) when those types of clauses apply. The Pompey test required asking, first, whether there is an enforceable contract binding the parties; and if so, is there strong enough cause for the clause not to be enforced, mainly because another forum would be far better suited to hear the case?

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Q&A

Jeff Beedell on what to expect from the SCC in 2019

By Yves Faguy January 2, 2019 2 January 2019

Jeff Beedell on what to expect from the SCC in 2019

 

We recently sat down with Jeff Beedell, a partner in Gowling WLG’s Ottawa office whose practice provides Supreme Court of Canada agency services. In a recent interview with CBA National, he gave us a preview of what to look out for in the coming year at the SCC. 

CBA National: It’s been roughly a year since Richard Wagner has taken up the role Chief Justice. What are your impressions and takeaways so far?

Jeff Beedell: One impression is that there’s been a healthy contribution of dissenting opinions written in the first year of Chief Justice Wagner’s leadership. Everyone acknowledges Justice [Suzanne] Côté as our new ‘great dissenter’ but Justices Rowe, Brown, and Gascon also haven’t been shy about expressing independent judicial views. I can’t say if our new Chief Justice marks any change in the pattern of dissents because when I look back at 2017 [the year former Chief Justice Beverley McLachlin retired], we saw the most split decisions in 10 years. Of 67 appeals heard, 36 were unanimous and 31 were split decisions. So, comparing 2018 against 2017, I don't know that there’s any new trend to describe other than that we have a good bench of independent legal thinkers.

N: Is that a good thing or a bad thing to have a little more dissent on the Court?

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Q&A

How law firms should prepare for the next economic downturn

By Yves Faguy December 18, 2018 18 December 2018

How law firms should prepare for the next economic downturn

 

Jordan Furlong, whom you all know from his writing at Law21.ca, was kind enough to sit down with me for our annual year-end discussion on the state of the legal market. This time we discussed a range of topics, from legal innovation in Canada and pushes towards regulatory reform, to the growing presence of the Big Four in legal, and advice on preparing for the next economic downturn. 

CBA National: Has innovation finally come to the Canadian legal marketplace?

Jordan Furlong: To a certain extent. Everybody talks about innovation, of course. But for me, innovation starts growing teeth when actual money is spent and actual lawyers' time is dedicated to creating products and services and systems and changes that did not exist before. We're at that first stage now, and in fairness, you're seeing many large Canadian firms doing this. In no particular order, Fasken Martineau, Osler, McCarthy Tétrault are out in front in these areas. Gowling WLG and Blakes are also showing real interest. You'll find other firms that are a bit more around the periphery of this change. The next steps are harder, though, because they involve two things that are really difficult for lawyers individually, and law firms collectively, to do. The first is to truly listen to what their clients are telling them that they want; about their business and their industry; what their internal targets and mandates are. Firms should listen, go away, think about it on their own time, and come back with something that will help them meet their goals and objectives. The second aspect — even harder — is that innovation needs to change how the law firm works, how lawyers work, and how the law firm operates. That's the kind of innovation that is most desperately needed. But the number one thing to do is figure out how to compensate people within your firm, based on their accomplishments, and not just the hours they bill. Also, how are you pricing the services that you are providing to your clients?

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