The Power of Perspectives

The Canadian Bar Association

Yves Faguy

Defamation law

Defamation law in Canada: A look at the data

By Yves Faguy May 7, 2018 7 May 2018

Defamation law in Canada: A look at the data

 

Hilary Young, in a recent Canadian Bar Review article, brings some data to the debate surrounding defamation law reform in Canada.  Noting that defamation is “an old tort that has changed relatively little over the centuries,” Young explains that the push behind efforts to reform it are driven by changes in how society views free speech in an era where communications technology is evolving at breakneck speed.  Also driving the push until now has been “anecdotal evidence” that the threat of litigation under defamation law is putting a chill on free speech. The study focuses on reported decisions between 1973 and 1983 and between 2003 and 2013:

The study has several interesting results. It demonstrates that the average non-pecuniary damages award has almost doubled between the two periods studied—even when adjusted for inflation. It reveals that the percentage of corporate defamation cases (versus those brought only by human beings) is significant—about a third—but that the percentage has not increased greatly over the time periods examined. The study indicates that reported defamation cases resulted in liability significantly less often in he later period (in only 28% of cases) than in the earlier period. Moreover, rates of liability were higher in cases involving new media (internet and email) publications than those involving other forms of publication. The study shows that punitive damages were awarded to corporations more often than to human plaintiffs, and in higher amounts. It also shows that punitive damages were awarded in about a quarter of all defamation cases in both periods.

Read More
Intellectual property

Can a machine produce copyright material?

By Yves Faguy May 3, 2018 3 May 2018

Can a machine produce copyright material?

 

As businesses across all industries set their sights on a future built on artificial intelligence, there is a growing sense that policy makers are going to have to get serious about thinking through the impact of AI on intellectual property.  James Hinton and Peter Cowan wrote a piece about this last year, rightfully pointing out that most entrepreneurs in tech innovation have a limited understanding at best about IP in general.  Most of the concerns tend to focus on patents, particularly as Canada has set out to position itself as a hub of AI initiatives.

At the CCCA National Conference in Toronto this week Stephen Spracklin, a City of Mississauga lawyer focused on IT and IP issues raised another set of concerns around copyright, particularly as it applies to the more advanced artificial general intelligence, which is capable of learning in its own right without any human intervention (as opposed to artificial narrow intelligence – or ANI –, which is algorithmic learning that analyzes and synthesizes data, and with the input of human resources is able to arrive at a conclusion):

Read More
Corporate counsel

SCC dismisses leave in litigation privilege case dealing with internal investigation

By Yves Faguy May 3, 2018 3 May 2018

The Supreme Court of Canada has dismissed leave to appeal in Alberta v. Suncor Energy Inc. Alberta, which raised some interesting litigation privilege questions in the context of internal investigations.

The case tracked the story of a Suncor employee who died from injuries at a worksite near Fort McMurray.  In anticipation of litigation, Suncor’s legal counsel launched an internal investigation and asserted solicitor-client privilege over collected materials.  Though Suncor shared its report with government occupational health and safety officers, it would not accede to their request to interview investigators and get access to certain documents. The Alberta government sought an order to force Suncor to provide the refused materials and allow OHS to interview Suncor’s internal investigators, or provide further particulars about the claims of privilege.

The trial judge found that the dominant purpose of Suncor’s internal investigation was in contemplation of litigation. Therefore all material coming out of that investigation was subject to legal privilege.  But the Alberta Court of Appeal narrowed somewhat the privilege claim that can exist over internal investigations.  It found that the simple fact that documents were collected in the course of an investigation did not make them privileged per se, if not created for the dominant purpose of litigation (as opposed to becoming privileged by merely having been collected as part of the investigation)

The case held particular interest for corporate counsel who are the ones typically called upon to conduct internal investigation and to assess the legal risks that can result from an incident.

Read More

Doing business in the U.S.: Build your relationships

By Yves Faguy May 1, 2018 1 May 2018

Doing business in the U.S.: Build your relationships

“Relationships do matter. But remember that presidents and Congresses come and go.”

That was the message from James Blanchard, former U.S. ambassador to Canada, at the morning plenary at the CCCA National Conference, where panelists shared their thoughts on the evolving U.S. -Canada relationship.

The discussion took place only hours after the Trump administration announced its decision to postpone imposing steel and aluminum tariffs on Canada and Mexico, as the three trade partners are in the thick of renegotiating a new NAFTA deal.  Blanchard, now a partner at DLA Piper ventured a guess that President Donald Trump “will not issue a termination” of the current trade deal. “His advisors will advise against it.”

Read More
CCCA Conference

People skills in an era of advancing technology

By Yves Faguy May 1, 2018 1 May 2018

People skills in an era of advancing technology

 

With automation promising to shake up the legal industry, lawyers are understandably fearful that machines will replace them. But even as technology becomes more widely deployed, law firms will still have to focus their efforts on hiring the right people, says Mark A. Cohen, a legal strategist and a keynote speaker at the 2018 CCCA National Conference in Toronto.

In the battle for talent, there will be a premium on a mix of contemporary skills. These include an understanding of technology’s role in legal delivery, project management, marketing and data analytics. 

 

Read More