The Power of Perspectives

The Canadian Bar Association

Yves Faguy


Fighting Foreign Corruption Act

By Yves Faguy March 8, 2013 8 March 2013

The CBA’s anti-corruption team appeared on Wednesday before the Senate Committee on Foreign Affairs and International Trade to endorses the government’s efforts to crack down on foreign corruption and to propose improvements to Bill S-14, Fighting Foreign Corruption Act, which aims to strengthen the current Corruption of Foreign Public Officials Act (CFPOA). We caught up with Michael Osborne, a partner at Affleck Greene McMurtry and a member of the team to explain the proposed changes and share with us the CBA's position.  


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Adapting to a disruptive new model

By Yves Faguy March 8, 2013 8 March 2013

Now The Economist picks up on the theme of the sharing economy and some of the legal challenges it faces:

As they become more numerous and more popular, however, sharing services have started to run up against snags. There are questions around insurance and legal liability. Some services are falling foul of industry-specific regulations. Landlords are clamping down on tenants who sub-let their properties in violation of the terms of their leases. Tax collectors are asking whether all the income from sharing schemes is being declared. Meanwhile, the big boys are moving in, as large companies that face disruption from sharing schemes start to embrace the model themselves. As the sharing economy expands, it is experiencing growing pains.

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How to kickstart crowdfunding in Canada

By Yves Faguy March 5, 2013 5 March 2013

Michael Geist has a helpful post on why Kickstarter and other crowdfunding sites are having trouble getting traction in Canada (an issue Leo Singer recently looked into in a recent article for National on the sharing economy):

The barriers to Canadian crowdfunding extend beyond payment problems and sparsely populated websites. Legal uncertainty about venturing into crowdsourced investment has limited the ability of Canadian creators to tap into their home market. Canadian sites are typically based on a donation model in which there is no expectation of financial return, though some creators offer incentives and gifts in return for support. The United States has opened the door to an investment model that would allow for crowdfunding investments that could result in revenue sharing or the issuance of stock in the project or company.

The Ontario Securities Commission just closed a consultation on the issue with many potential safeguards being considered. These include registration requirements, investment limits, disclosure obligations, and "cooling off" periods that would allow investors to back out of an investment.

The failure of Canadian crowdfunding sites to keep pace with sites such as Kickstarter unsurprisingly means that creators are forced to look south of the border for financial support.

Of course, part of the problem too is that there is no single securities regulator in Canada. If the provinces are ever to permit crowdfunding by Canadian issuers, they'll have to change the rules Geist refers to under each of their respective Canadian securities laws.

That said, crowdsourcing does have its critics who might applaud Canada's slow pace of change. Steve Rattner, slamming the US JOBS Act, compared it in a recent NYT article to gambling:

While such lightly regulated capital raising has existed for years, until now, “investors” could receive only trinkets and other items of small value, similar to the way public television raises funds. As soon as regulations required to implement the new rules are completed, people who invest money in start-ups through sites similar to Kickstarter will be able to receive a financial interest in the soliciting company, much like buying shares on the stock exchange. But the enterprises soliciting these funds will hardly be big corporations like Wal-Mart or Exxon; they will be small start-ups with no track records.

Picking winners among the many young companies seeking money is a tough business, even for the most sophisticated investors. Indeed, most professionally run venture funds lose money. For individuals, it’s pure folly. Buy a lottery ticket instead. Your chance of winning is likely to be higher.

Which might explain its popularity. According to Deloite estimates, crowdfunding portals will lend $1.4 billion worldwide in 2013, up from 50 per cent in 2012. More on the state of international crowdfunding here.

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Whatcott reactions, continued

By Yves Faguy March 1, 2013 1 March 2013

The Whatcott decision generated a ton of commentary, so we rounded up a few more reactions.

Ariane Krol recognizes that the court struggled to bring clarity to the debate, but the decision, she writes, still leaves plenty of room for interpretation:

The trouble is that the Court’s test rests on impressionistic criteria. Could it be the reason why it took the justices 16 months to reach a decision about four pamphlets?

The [hateful] expression must not only inspire violent and extreme sentiments, but must be “likely to expose the targeted person or group to hatred by others.” Following the decision, we must ask ourselves what “a reasonable person, aware of the context and circumstances’ would think. But that won’t change anything. Measuring intensity and the evaluating the possible consequences is an inherently subjective exercise. It’s to be expected that the administrative tribunals that will have to apply these criteria will continue to render controversial rulings. (Our translation)

It’s a nuanced and well-crafted decision, according to Michael Plaxton, but one that forces us to confront difficult questions:

The decision in Whatcott forces one to ask just how important it is that matters of private sexual morality be debated in the public sphere. Maybe it’s fair enough to say that the state has no place in the bedrooms of the nation. But does that mean private citizens should not be allowed to express an opinion about what goes on in them? After all, although it may seem a trivial matter for many of us, for others, sexual morality is tied to questions of the highest spiritual significance and urgency. Perhaps a commitment to equality demands that their views be muffled somewhat. If that is true, though, we should be honest about what we are doing.

(More after the jump)


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Getting serious about oil spill liability

By Yves Faguy February 28, 2013 28 February 2013

Earlier this year there were reports that Ottawa is planning on raising spill liability limits for offshore drilling. It isn’t clear yet whether new rules would apply to inland pipelines as well. As things stand now, provided there is no negligence, oil companies have their liability capped at an absurdly low $40 million in the North and $30 million off the East Coast. To put things in perspective, the BP spill in the Gulf of Mexico three years ago caused damages estimated at $40 billion. Who knows how much worse it could be in Arctic waters?

We caught up with Will Amos, director of the Ecojustice clinic at the University of Ottawa, to give us some insight on where the government might be headed, how it should handle this issue and what it might mean for the resource industry.

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