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The Canadian Bar Association
CBA Influence

Lack of adequate funding for Federal Courts ‘untenable’

By Kim Covert August 16, 2017 16 August 2017


The CBA revisited the need for adequate funding for courts in a letter to the Justice Minister in early July which called for a mechanism to ensure ongoing funding for the Federal Court, Court Martial Appeal Court, Tax Court and Federal Court of Appeal.

Inadequate funding affects the independence of the judiciary and also becomes an obstacle to access to justice at a time when courts are coming under increasing fire for delays and backlogs.

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Justice

Access to justice and Quebec's dispute over claim limits in provincial court

By Yves Faguy August 15, 2017 15 August 2017

Access to justice and Quebec's dispute over claim limits in provincial court

 

There is a growing concern over a constitutional challenge by a group of Quebec Superior Court judges against the federal government and the province that may have profound implications for access to justice in Canada.

In their suit the judges are seeking a judgment (in Superior Court no less) declaring that the Court of Québec has exclusive jurisdiction only over civil claims under $10,000 (a figure that has been adjusted for inflation), in accordance with section 96 of the Constitution Act, 1867. Under current civil procedure rules in the province, the court can hear claims up to $85,000.

Montreal litigator and blogger Karim Renno calls the challenge justified.  “It’s an important constitutional question and it’s difficult to imagine who would be in a better position than judges of the Superior Court to submit the matter for adjudication,” he told Droit-inc (Our translation).

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Trade

Updating NAFTA's labour and environmental standards

By Yves Faguy August 14, 2017 14 August 2017

Updating NAFTA's labour and environmental standards

NAFTA talks begin this week, a challenge John Geddes notes that “has emerged, unexpectedly, as a defining issue for Prime Minister Justin Trudeau’s still-young Liberal government.” 

Today, Foreign Affairs Minister Chrystia Freeland was at the University of Ottawa to talk about Canada’s goals in modernizing NAFTA, namely by pushing for stronger labour and environmental safeguards into the core of the trade deal. “We are seizing this opportunity to make what is already a good agreement, even better,” was Freeland’s main message.

Freeland has in the past praised Canada’s trade deal with the EU and its labour and environmental provisions as model for NAFTA.

But in their primer on what to expect from the upcoming talks, trade lawyers at McCarthy throw a measure of cold water on those twin objectives:

There are two points of interest here. First, while both sets of US Objectives discuss incorporating the sections into NAFTA itself, and contain provisions requiring certain actions and panels to investigate and ensure commitments are met, there is no US Objective setting out proposed consequences for breach. CETA attracted a great deal of attention for being a “Green” free trade agreement because it included a chapter on the environment. However, without concrete enforcement provisions, including the loss of concessions up on a breach, these commitments remain window dressing. CETA, for all of its progressive claims, falls into this category: the environmental and labour chapters lack teeth.

Second, the US Objectives on labour do not deal with the freedom of movement of citizens or residents of the countries for business or other purposes. One of the key elements of CETA was a recognition that, to properly supply services, there had to be a guarantee for business travellers and business travel between the participating countries. There were also ground-breaking provisions relating to the framework for mutual recognition of credentials for professional workers (such as architects, engineers, or lawyers).

It will likely be difficult for the Canadian government to extract any concessions on this front from the United States. All the same, given the current trajectory of US demands, including broad access for service suppliers conducting business internationally, there may be limited room for liberalization for professional and business workers.

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Risk management

A new normal: Climate and cybersecurity risks in financial disclosures

By Yves Faguy August 9, 2017 9 August 2017

A new normal: Climate and cybersecurity risks in financial disclosures

Kevin LaCroix, discussing directors' and officers' liability, points to some telling signs of the times:

One of the fundamental principles on which our system of securities regulation is based is the importance of disclosure. The system is built on the notion that companies must disclose certain basic information about their operations and performance so that investors can make informed investment decisions. While the disclosures required are a matter of regulation and statute, investors’ and regulators’ expectations about what must be disclosed changes over time. Signs are that disclosure expectations  — and as a result disclosure practices — are changing rapidly in two particular areas: cybersecurity and climate change.

As if to underline the point, Australia's top bank is now the target of a shareholder suit over climate change risks. As The Guardian reports, the case marks a first test to gauge how courts will hold companies to account on disclosure requirements that should be identified in their annual reports:

The move comes six months after the Australian financial regulator warned climate change poses a material risk to the entire financial system, and called for companies to report on climate change-related risks as financial risks.

The sorts of risks the Commonwealth Bank might face as a result of climate change are diverse, said David Barnden, a lawyer at Environmental Justice Australia.

“CBA has exposure to the Australian economy in general. We could be talking about anything from extractive projects to the housing market, which might face risks from sea level rise,” Barnden said.

Reputational risks for the bank as the economy moves away from fossil fuels could also be significant, Barnden said, with the shareholders raising concerns about the bank’s position on funding Adani’s proposed Carmichael coalmine and associated infrastructure.

 

 

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Criminal law

Algorithms that predict crime need more public scrutiny

By Yves Faguy August 8, 2017 8 August 2017

Algorithms that predict crime need more public scrutiny

 

The predictive value of algorithms in criminal matters is obviously a controversial one.  Last year, the not-for-profit ProPublica newsroom published an investigative piece arguing that there is racial bias in a tool called COMPASS, used by courts in bail sentencing to predict the likelihood of people reoffending.

The case study found that black defendants are more likely to be incorrectly labeled high risk and white defendants low-risk, in large part because the algorithm itself tends to reflect existing social inequality and therefore reinforcing the bias. Ultimately, the study found that risk scores were unreliable in forecasting violent crime. The Chicago Police Department's Strategic Subject List, commonly called the Heat List, has also come under attack for its reliance on an algorithm that critics charge is assigning risk scores in an overly simplistic manner and without proper transparency (often because the owner of the predictive software will cite proprietary technology as a reason not to share details of its inner workings).

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International law

Google's US court challenge to SCC "repugnant" order

By Justin Ling August 4, 2017 4 August 2017

Google's US court challenge to SCC "repugnant" order

The long-running legal wrangle between Google and Equustek Solutions Inc, a B.C. technology company, is far from over.

In June, the Supreme Court of Canada upheld an injunction against Google forcing it to remove search results for a former Equustek distributor, who had been violating the company’s intellectual property through shell companies in different jurisdictions outside Canada.

Now it is Google that has changed venues to challenge the Equustek ruling. It filed a 13-page application in a California court trying to block the Canadian order.

 “Google now turns to this Court, asking it to declare that the rights established by the First Amendment and the Communications Decency Act are not merely theoretical,” the application reads. “The Canadian order is repugnant to those rights.”

Google is seeking a preliminary injunction to stop enforcement of the Canadian order as it “violates principles of international comity, particularly since the Canadian plaintiffs never established any violation of their rights under U.S. law.”

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The practice

How to deal with practice disruptions

By Ann Macaulay August 3, 2017 3 August 2017

How to deal with practice disruptions

 

Plenty of things can disrupt your law practice, from unanticipated events like sudden illness or a natural disaster, to more expected things, such as pregnancy or moving your firm to a new location. Fortunately, there’s a great deal you can do to minimize the potential fallout. Planning ahead and being organized can go a long way to keep chaos at bay.

“What’s your plan if you’re hit by a bus?” is the first thing to ask yourself, says former lawyer Joanne Clarfield Schaefer of JSchaefer Coaching in Toronto, who had an unexpected medical leave after depression struck her completely out of the blue.

Clarfield Schaefer advises lawyers to create a list in anticipation of not being able to work, including passwords, phone numbers and names of clients, as well as the key people in your firm. If you can’t communicate and can’t make it in to the office, there should be someone available who knows everything about your practice, she adds. She recommends having what she calls an “emergency ghost,” someone “who you trust with your files and your clients so you can call on them readily to step in if you’re completely incapacitated.” That person should have your password so they can figure things out simply by sitting down and accessing your files.

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Freedom of expression

Free speech on social media: Whose right is it anyway?

By Yves Faguy August 2, 2017 2 August 2017

Free speech on social media: Whose right is it anyway?

 

One of the privileges that presumably come with freedom of speech is that you don’t have to listen to what your critics say — unless, perhaps, you happen to be the President of the United States. 

Last month, a group of Twitter users, blocked by Trump, sued him on grounds that the president's account is a “public forum” and that they have a right to participate in public debate. The lawsuit reads:

The @realDonaldTrump account is a kind of digital town hall in which the president and his aides use the tweet function to communicate news and information to the public, and members of the public use the reply function to respond to the president and his aides and exchange views with one another.

Noah Feldman has suggested that the legal arguments are specious at best:

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Securities law

What the SEC's DAO ruling means for Canadian initial coin offerings

By Yves Faguy August 1, 2017 1 August 2017

What the SEC's DAO ruling means for Canadian initial coin offerings

 

Addison Cameron-Huff points to last week’s Securities and Exchange Commission report ruling that an initial coin offering (ICO) of Decentralized Autonomous Organization (DAO) tokens, dating back to 2016, are securities.  An ICO is essentially is similar to an initial public offering; only here it is the practice of raising funds in exchange for “digital tokens.” It has been mostly unregulated until now, but the SEC report confirms that U.S. securities law will apply to ICOs with a similar structure as the DAO.  The DAO, which was crowdfunded through its token sale in 2016, is a blockchain-enabled organization that exists as a set of contracts tied to the Ethereum network.

As Cameron-Huff notes, the SEC has opted not to enforce any action against the DAO at this particular time. But the message is pretty clear. The SEC is open to blockchain technologies and token sales, but is putting future ICO issuers on notice that they must register and be compliant:

Blair Wiley and Evan Thomas at Osler boil it down:

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Competition law

Antitrust leniency programs: A disincentive to self-report?

By Yves Faguy July 31, 2017 31 July 2017

Antitrust leniency programs: A disincentive to self-report?

 

Morgan Lewis has a report out showing a major downward trend this year in cartel fines (only US $1.2 billion so far in 2017, compared to $7.8 billion for the full calendar year in 2016). In Canada fines have reached $9.9 in 2017, due to an ongoing automotive parts investigation.

Gabe Friedman reports on why the fines are dropping, in spite of the success of leniency programs adopted around the world over the last decade and a half.  He quotes antitrust partner Clay Everett who suggests that, ironically, the proliferation of leniency programs in different juridictions could be making it more difficult for those companies willing to self-report to be the first in order to secure a promise of immunity:

“There’s been a real surge in enforcement in those types of cases,” said Everett, adding that “a very high percentage of international cartel cases, in the past fifteen years, have been generated through the leniency programs.”

But he said the proliferation of “leniency” programs, and the increased penalties around the world for price-fixing, means that coming forward to self-report a violation now requires a more complicated calculus: There are so many authorities with overlapping jurisdictions, and many cartel members are skeptical that they will receive global credit for being first to self-disclose.

Thus, cartel members must make a strategic calculation about whether self-disclosing and receiving only partial credit is better than staying quiet and hoping authorities never learn about their cartel, Everett said.

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Justice Canada

Justice Canada to overhaul litigation management software

By Justin Ling July 27, 2017 27 July 2017

Justice Canada to overhaul litigation management software

 

The federal Justice Department is on track for a big software update.

It posted a request for information this week, seeking software developers to propose a new solution for their litigation management programs.

That new software, which will replace the current tools, would be designed to search, tag, and preserve documents in various government systems and mark them as relevant for ongoing litigation. The ideal legislation would also be able to archive and crawl webpages, monitor sites for changes, store legal research on the issue, and centralize all relevant information on a chosen case.

The new software would be used to manage workflow and discovery for the 2,000 employees of Justice dealing with some 42,000 litigation cases each year.

The aim is to get the new software online by April, 2020.

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Duty to consult

NEB can fulfill duty to consult, but must do so meaningfully

By Yves Faguy July 26, 2017 26 July 2017

NEB can fulfill duty to consult, but must do so meaningfully

 

The top court handed down two major rulings today on the duty to consult Indigenous communities.

In Clyde River (Hamlet) v. Petroleum Geo‑Services Inc., it quashed a National Energy Board granting authorization to conduct offshore seismic testing for oil and gas off Baffin Island, noting, “No one benefits — not project proponents, not Indigenous peoples, and not non-Indigenous members of affected communities — when projects are prematurely approved only to be subjected to litigation.”

The Crown, it held, can rely on the NEB’s process to fulfill its duty to consult, but in this case the regulatory agency failed to conduct deep consultation:

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