The Power of Perspectives

The Canadian Bar Association

Yves Faguy

Trade

What it will take to get NAFTA negotiations back on track

By Yves Faguy June 14, 2018 14 June 2018

 

Harsh language rarely helps the cause. Emphasizing a more positive intention is generally the best way to get parties to agree to a deal.  That was the subtext of the message delivered yesterday by Public Safety Minister Ralph Goodale who, in an interview on a Fox News business, made the case that Canada still wants to make a deal to update the North American Free Trade Agreement. 

It didn’t go unnoticed that Goodale squeezed in some heartfelt compliments to U.S. President Donald Trump for reaching an agreement with North Korean leader Kim Jong Un in Singapore this week.

Hopefully, the change in tone will get Canada and the United States back on track to find a resolution to their fraying trade relations after the Quebec G7 Summit, says Clifford Sosnow, a lawyer and partner at Fasken Martineau DuMoulin, based in Ottawa and Toronto.

The other major challenge, he says, is figuring out what the end game is for the Trump administration.

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SCC: Correctional Service's psychological assessment tools may be culturally biased

By Yves Faguy June 14, 2018 14 June 2018

SCC: Correctional Service's psychological assessment tools may be culturally biased

The Supreme Court of Canada has ruled in a 7-2 decision that the Correctional Service of Canada failed to take reasonable steps to ensure the accuracy of psychological assessment tools for Indigenous offenders. The assessment tools have been used in a number of situations, from helping determine eligibility for parole and access to rehabilitation programs.

The ruling concludes a challenge brought forward by Jeffrey Ewert, a métis offender in his fifties who has spent more than 30 years in federal penitentiaries serving two life sentences for second degree murder and attempted murder. For much of that time, the CSC has relied on risk assessment scores to discourage Ewert from accessing rehabilitative opportunities, even though he had become eligible for parole over 20 years ago.

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Duty to consult

The Bigstone ruling and what it means for Trans Mountain

By Yves Faguy June 12, 2018 12 June 2018

The Bigstone ruling and what it means for Trans Mountain

 

The Trans Mountain project has understandably consumed most of the coverage of pipeline politics of late (The Canada Pension Plan Investment Board the latest to get drawn in).  As the story turns to the legal challenges brought against it by Indigenous groups, David. V Wright takes note of the recent Federal Court of Appeal decision in Bigstone Cree Nation v. Nova Gas Transmission Ltd., which he believes is instructive for how it will ultimately decide in the TMX case. In its decision the court upheld regulatory and political approvals to expand Trans Canada’s Nova Gas Transmission Ltd. System in northern Alberta.  Wright sees “an emerging consensus” in the wake of recent Supreme Court of Canada rulings in Clyde River and Chippewas of the Thames First Nation. The Crown, it seems, can “rely on an existing regulatory process like that of the NEB for undertaking consultation, and that Indigenous groups have a responsibility to make use of such processes if they wish to voice their concerns,” he writes.

Noting that after its election in 2015, the current government “created additional time and space” for deeper consultations, Wright concludes that the government is carefully following the playbook outlined in the Federal Court of Appeal’s Gitxaala Nation decision in 2016.  That ruling made headlines for quashing Canada’s approval of the Northern Gateway Pipeline Project, because of the government’s failure to adequately consult with affected First Nations:

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CBA Futures

Legal futures round-up

By Yves Faguy June 11, 2018 11 June 2018

Legal futures round-up

Time for a quick round-up of notable trends and developments and views that highlight innovation in the legal industry.

Another month. Another law firm announces its intentions to go public. Mere weeks after Rosenblatt Solicitors announced its plans to list on the London Stock Exchange, UK regional firm Knights Law has confirmed its plans to follow suit, valuing the firm at £100m (This would make it the country's largest-ever law firm flotation). The firm says it will use the money raised in the IPO to pay down debt and finance growth through acquisitions.

On that topic, according to a Thomson Reuters survey of the UK’s top 100 law firms, 20 per cent of their finance directors are considering initial public offerings as a possibility to raise cash.  What’s more, 24 per cent would consider private equity as a source of funding.

It appears that there is growing interest in England’s liberalized market from investors, too. Goldman Sachs and Singapore’s sovereign wealth fund Temasek are getting together to invest £13m in UK-based legal AI company Eigen Technologies, as part of a Series A round of financing.

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Trade

Trying to get Trump to listen on tariffs

By Yves Faguy June 5, 2018 5 June 2018

Trying to get Trump to listen on tariffs

Growing opposition to the Trump administration’s trade tariffs on steel and aluminum announced last week is gathering steam among U.S. domestic interests. Politico is reporting on a major lobbying effort under way, for the most part to win further exemptions and product exclusions, which appear to be piling up faster than an understaffed Commerce Department can handle. 

Meanwhile, the industrialist Koch brothers, influential in U.S. conservative circles (and erstwhile Trump allies), have promised to massively finance a sustained “multi-year, multimillion dollar” campaign in favour of free trade.

Already on the legislative front in the U.S., there is also an effort to draw up legislation that would reverse the tariffs by subjecting them to congressional approval. The problem is that to become law anytime soon, it would require the president’s signature.

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