The Power of Perspectives

The Canadian Bar Association

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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CBA influence

A shorter deadline won’t make tax reports more accurate

By Kim Covert June 13, 2018 13 June 2018

 

Taxpayers with foreign affiliates currently have 15 months after the end of their taxation year to file information returns to show their compliance with Canadian taxation of foreign-based income. In the 2018 budget, the federal government announced its intention to shorten that filing deadline to six months beginning in 2019, to bring it in line with the corporate income tax return deadline.

In a submission to the Department of Finance, the Joint Committee on Taxation of the Canadian Bar Association and Chartered Professional Accountants of Canada lays out its argument against this proposed move.

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Corporate counsel

Global cybersecurity: Do we need more law?

By Karen Sadler June 13, 2018 13 June 2018

Global cybersecurity: Do we need more law?

 

“Should we be worried? Extremely worried?” That’s the question Rosemary McCarney (pictured above) opened with at the 2018 CCCA National Conference & In-House Counsel World Summit earlier this spring. As the Canadian Ambassador and Permanent Representative to the United Nations (and the Conference on Disarmament in Geneva in 2015), she’s well poised to shed light on the pros and cons of the internet as well as the steps we need to take to address cybersecurity concerns as the world gets smaller and smaller.

“I was struck by how quickly what I wanted to say even just a few weeks ago was overtaken by real-time events,” she began. “Our cyber codependency, while still offering both advantages and opportunities, will cause us some sleepless nights because it makes us vulnerable.”

Cyberthreats are in the top three of global threats reported by the World Economic Forum, and are becoming more frequent and more disruptive. However, McCarney is optimistic. She argues that the myriad of treaties, conventions, standards and norms that make up the international rules-based order we rely on to govern trade, foreign policy, commerce and war are more than sufficient to govern cybercrime and cybersecurity issues too. Is the global commons under threat? Absolutely. But McCarney strongly believes we’re up to the task of defending it.

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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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Securities law

It’s becoming easier to be green – with better returns

By Doug Beazley June 7, 2018 7 June 2018

It’s becoming easier to be green – with better returns

 

It’s a very good time to be in the planet-saving business. Decades back, when the nascent “socially responsible investment” sector was just getting started, SRI was a boutique product.

It had scored some conspicuous victories — having played a key role in pressuring South Africa’s business community to publicly repudiate apartheid, for example – but it was still a niche market, a way for conscientious investors to sacrifice a few points of profit to their ethics. Nobody really expected SRI products to keep pace with the market. But then they did — and then some.

Genus’s Fossil-Free CanGlobe Equity Fund, which excludes oil companies and high-carbon emitters, has increased in value 102 per cent since it started in 2013. A comparable benchmark fund composed of large-cap Canadian and international stocks grew by roughly 81 per cent over the same period. The Jantzi Social Index, which tracks large-cap Canadian firms that meet a high standard of social and environmental responsibility, has seen those firms rise in value more than 41 per cent since 2006; the S&P/TSX 60 trailed at least two points behind.

 

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Defamation law

No country for libel tourism

By Justin Ling June 6, 2018 6 June 2018

No country for libel tourism

 

Canada isn’t set to become a favourite forum for libel tourists.

The Supreme Court ruled Wednesday that an Ontario court was not, in fact, the best suited to hear a defamation suit filed by a Canadian businessman against an Israeli newspaper. In doing so it allowed a stay on the proceedings.

But the decision split the bench. Justice Suzanne Côté wrote the majority decision, with Justices Russell Brown and Malcolm Rowe concurring. Justices Andromache Karakatsanis, Rosalie Abella and Richard Wagner all filed their own concurring reasons. Justices Michael Moldaver and Clément Gascon, as well as (then) Chief Justice Beverley McLachlin filed joint dissenting reasons.

While the outcome of the case might be relatively clear, the roadmap on dealing with forum selection for online libel cases is less so.

 

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Environment

The Trans Mountain purchase: Some unresolved legal issues

By Doug Beazley June 6, 2018 6 June 2018

The Trans Mountain purchase: Some unresolved legal issues

 

Given the kind of year Rachel Notley has had, you could forgive the Alberta premier for taking a small victory lap last month after the federal government went all the way for Trans Mountain.

Reacting to the Trudeau government’s announcement that it would be purchasing the existing Trans Mountain pipeline for $4.5 billion — to guarantee construction of a politically-fraught expansion to transport Alberta’s bitumen to the Pacific coast — Notley argued the purchase would put an end to B.C. Premier John Horgan’s legal attempts to frustrate the work.

“As a result of the pipeline having been purchased by the federal government, they have a form of Crown immunity which actually limits the degree to which provincial laws would apply to the project because it’s a federal project now,” Notley told reporters.

“I suspect premier Horgan will be going off to get legal advice … some folks would suggest their reference case will have less relevance than before today’s announcement.”

Is she right? Horgan hasn’t taken off the table his government’s reference case before the provincial Court of Appeal — to rule on the province’s power to restrict the flow of diluted bitumen through British Columbia. Does he know something Notley doesn’t?

 

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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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CBA influence

Abuse of dominance guidelines need work

By Kim Covert June 4, 2018 4 June 2018

 

It’s not always easy to distinguish aggressive-but-pro-competitive business practices from those that are anti-competitive. That’s why the CBA’s Competition Law Section welcomes the Competition Bureau’s draft Abuse of Dominance Enforcement Guidelines as an aid to decision-making in the business community.

That said, the Section says the guidelines could be improved to be more helpful.

“The guidelines sometimes take an inconsistent or expansive view of existing Canadian abuse of dominance jurisprudence,” the Section says.

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The profession

Groia ruling: Right approach. Wrong call.

By Yves Faguy June 1, 2018 1 June 2018

Groia ruling: Right approach. Wrong call.

 

The Supreme Court of Canada has ruled in a 6-3 decision that Toronto lawyer Joe Groia was not guilty of committing professional misconduct. The ruling establishes an incivility test for when courtroom conduct crosses the line.

“The CBA is pleased with the SCC’s decision as it underlines the importance of both civility and resolute advocacy in the administration of justice,” CBA President Kerry L. Simmons,  Q.C. said in a statement today.

Represented by Norton Rose’s Pierre Bienvenu, Andres Garin and Jean-Christophe Marte, the CBA intervened in support of a test that balances the values courtroom civility, the independence of the judiciary, and the right of litigants to fearless and zealous representation. 

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Trade

Canada’s trade fight: The legal options are slim

By Yves Faguy June 1, 2018 1 June 2018

Canada’s trade fight: The legal options are slim

 

The world’s second largest trade relationship has hit another tough patch, and it’s hard to see how it gets repaired anytime soon.

In response to the announcement of U.S. metal tariffs, Canada has announced its intention to retaliate by imposing its own countermeasures on certain U.S.-origin goods — $16.6-billion worth of U.S. imports starting July 1.  “Canada will also challenge these illegal & counterproductive measures under NAFTA Chapter 20 and at the WTO,” the prime minister tweeted yesterday.

Clearly Trudeau, who until now has gone out of his way to keep things cordial, has lost patience.  “We have to believe at some point common sense will prevail. But we see no sign of that in the U.S. action today,” he said yesterday and even allowed himself to share details of the NAFTA negotiations. Trudeau also shared details of NAFTA negotiations – normally not discussed publicly.  He explained that a new deal was close and that he had offered to go to Washington to finalize it, but it fell apart when Vice-President Mike Pence told him over the phone that the Trump administration would on including a 5-year sunset clause. Pence has since contradicted Trudeau’s version, claiming that the trade partners were not in fact close to a deal.

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SCC backs law societies in denying accreditation to TWU

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Global cybersecurity: Do we need more law?

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Canada’s trade fight: The legal options are slim

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