The Power of Perspectives

The Canadian Bar Association
CBA influence

Technology-neutral PIPEDA’s consent model has aged well; Regulations have not

By Kim Covert April 7, 2017 7 April 2017


If it ain’t broke…

That’s essentially what the CBA told the Access to Information, Privacy and Ethics Committee in March about the existing consent model in PIPEDA – the Personal Information and Protection of Electronic Documents Act that was enacted in 2001.

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CBA influence

Bill C-23: This strip of my country is your country

By Kim Covert April 6, 2017 6 April 2017

Bill C-23: This strip of my country is your country

 

What do you do with a bill to implement an agreement reached by governments in two countries that have each been replaced by administrations with very different priorities and ideologies?

When it comes to Bill C-23, which would implement the Agreement on Land, Rail, Marine and Air Transport Preclearance reached between Canada under Stephen Harper’s Conservatives and the U.S. under Barack Obama’s Democrats, a number of national CBA Sections suggest you step back – waaaaay back – and think hard about what the legislation would mean once enacted.

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Money-laundering

Who’s in Control? Unmasking the beneficial owners of companies

By Noah Arshinoff April 6, 2017 6 April 2017

Who’s in Control? Unmasking the beneficial owners of companies

 

They’ve been called the “puppet masters” by the World Bank. Indeed, the Panama Papers shed light on how beneficial owners, or the real people who own/control companies, sometimes go to great lengths to keep their identities hidden. And according to Transparency International, Canada’s opaque laws on beneficial ownership make it an ideal breeding ground for tax evaders and money launderers.

Canadian law permits the use of nominees—essentially custodians—for directors and shareholders, thereby masking the beneficial owners of a company. For in-house counsel, navigating this environment can be complex, especially within a company’s due diligence program.

Why it matters

According to the World Bank, anonymous companies are the most common way US$1-$2 trillion are lost to money laundering each year. They are also used to finance terrorist activities and line the pockets of drug traffickers and corrupt politicians. While no company means to aid those with illicit intentions, the absence of any sort of national registry of beneficial ownership can make it very difficult to determine who you are actually doing business with.

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CBA influence

CBA groups urge repeal of Criminal Code section 159 at ‘earliest opportunity’

By Kim Covert April 6, 2017 6 April 2017


It used to be that when the Criminal Code talked about sex, it talked about sexual acts – and it made a whole host of them illegal – particularly if they were associated with homosexuality. But in the 1980s, a more open-minded wind blew through the Code, bringing with it the idea that the specific acts should be less of a focus than the age of the people performing them and their capacity to consent to them.

As it currently stands, the age of consent is 16, and 16-year-olds can consent to any form of sexual activity that it pleases them to engage in – except one.

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Corporate counsel

Conduct risk threat rising

By Jim Middlemiss April 3, 2017 3 April 2017

Conduct risk threat rising

 

Banking giant Wells Fargo fires 5,300 employees for opening fake accounts, which would later cost the CEO his job. Stadium caterer Centerplate fires its CEO after elevator video surfaces showing him kicking a dog, but not before the matter is painfully stretched out over days amid much second-guessing and threats of food boycotts. Soccer giant FIFA finds itself embroiled in bribery allegations over the World Cup. The Russian Olympic federation engages in mass doping.

What do these seemingly disparate scandals have in common? At the centre of their storm is some form of alleged bad conduct by key actors in the organization, showing critical ethical lapses that exposed their organizations to risk.

“Conduct risk” is quickly emerging as a leading threat in-house counsel and their C-level executives must manage. It comes at a time when regulators, legislators and a grumpy public are aiming their arrows at what seems to be a growing phenomenon of bad behaviour across both corporate and public institutions.

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Public safety

Is a new warrantless access program in the works?

By Justin Ling March 31, 2017 31 March 2017

Is a new warrantless access program in the works?

 

In its landmark search and seizure ruling in R. v. Spencer, the Supreme Court was unanimous that real-time requests made by police to link Canadians’ IP addresses with basic subscriber information required a warrant, except in exigent circumstances. At least that appeared to be the obvious conclusion.

 “Some degree of anonymity is a feature of much internet activity and depending on the totality of the circumstances, anonymity may be the foundation of a privacy interest that engages constitutional protection against unreasonable search and seizure,” the court wrote, in declaring a warrantless access regime being used by Canadian police to be unconstitutional.

But new documents suggest that Ottawa is entertaining a somewhat different read of that court decision.

A background document, obtained under access to information laws from Public Safety Canada, reads that “the Court stated that where [basic subscriber information] can reveal a person’s ‘personal choices or lifestyles,’ which may be compared to the ‘biographical core information’ protected under s.8 of the Charter, a reasonable law, warrant, or exigent circumstances are required for that information to be obtained lawfully.”

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The profession

SCC: Lawyers can be suspended for not doing CPD

By Yves Faguy March 30, 2017 30 March 2017

SCC: Lawyers can be suspended for not doing CPD

 

The Supreme Court of Canada has ruled that law societies can suspend lawyers for not completing their mandatory continuing professional development.  The top court held that the Law Society of Manitoba should enjoy “considerable latitude” in making rules that are the public interest.

Justice Richard Wagner wrote for the court:

To ensure that those standards have an effect, the Law Society must establish consequences for those who fail to adhere to them. As a practical matter, an unenforced educational standard is not a standard at all, but is merely aspirational.

A suspension is a reasonable way to ensure that lawyers comply with the CPD program’s educational requirements. Its purpose relates to compliance, not to punishment or professional competence. Other consequences, such as fines, may not ensure that the Law Society’s members comply with those requirements. An educational program that one can opt out of by paying a fine is not genuinely universal. I am mindful of the fact that in making these mandatory rules, the Law Society was responding to the reality that many lawyers in Manitoba had not complied with the CPD program when it was voluntary.

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Human rights

The IOC and human rights

By Erika Schneidereit March 30, 2017 30 March 2017

The IOC and human rights

 

The Olympic Games – these words conjure up images of national anthems, medal counts, and the world’s best athletes competing for glory on the international stage.

But for many, reports of widespread human rights violations in the lead-up to the 2008, 2014 and 2016 Games overshadowed the excitement of watching the world’s finest go for gold.

The International Olympic Committee (IOC) has heeded calls from human rights organizations and other groups to establish the protection of human rights as a core value of the Games. In February, the IOC announced that it had revised its Host City Contract for the 2024 Games to strengthen human rights protections, including its first explicit reference to the United Nations Guiding Principles on Business and Human Rights. The amended contract states that host cities are required to:

protect and respect human rights and ensure any violation of human rights is remedied in a manner consistent with international agreements, laws and regulations applicable in the Host Country and in a manner consistent with all internationally-recognized human rights standards and principles, including the United Nations Guiding Principles on Business and Human Rights, applicable in the Host Country.

So, will this amendment really have an impact on the actions of future hosts?

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Legal marketplace

A sign that in-house legal support is becoming big business

By Yves Faguy March 29, 2017 29 March 2017

A sign that in-house legal support is becoming big business

 

Catrin Griffiths reports that mid-tier firms are right to worry about PwC’s recent decision to snap up half of GE’s tax department – along with 600 of its lawyers – as part of a five-year deal to provide tax services to the multinational conglomerate, starting April 1:

So here’s the initial question for PwC: how long can you get away with providing business services to a market you are also competing with? Isn’t this doomed?

The answer is no, it’s not in the slightest bit doomed. PwC has been consistently smart about what it wants long-term, and right now what it’s doing is disrupting its own business. However strong its law firm consultancy service is, it pales into insignificance against the growth potential of its legal arm, which grossed £60m in the UK last year alone with a 24 per cent increase in billings. Yes, PwC may have lost audit clients among the top 100 – Burges Salmon and Ince & Co being two examples – but at the same time, it has won Clifford Chance and Herbert Smith Freehills. Neither CC nor HSF is likely to have sleepless nights over PwC as a competitor; they’re too busy worrying about the US firms.

Part of the worry for law firms, understandably, resides in what one industry watcher called a “rapid blurring of the boundaries between what used to be thought of as separate and distinct professional services.”

Fair enough. But another takeaway is that that PWC’s efforts are really a confirmation that clients see value in the delivery of in-house legal services.

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Meaning of consent

Involuntary parenthood claims don’t pay

By Jennifer Taylor March 28, 2017 28 March 2017

Involuntary parenthood claims don’t pay

 

There is no right to sue for “involuntary parenthood.” That’s according to the Court of Appeal for Ontario in PP v DD, which upheld a lower court decision to toss out a father’s lawsuit against his former female sexual partner for making him a parent before he wanted to become one.

The decision helps prevent tort law from being used to control women by making them pay – literally – for the consequences of their reproductive choices.

I wrote about the lower court decision last year, arguing that it was the right call for women’s reproductive autonomy.

Let’s back up and recall the facts: PP, the male plaintiff (a doctor), and DD, the female defendant (who also worked in health care), had a brief sexual relationship in 2014. PP understood that DD took birth control pills, so they did not use condoms. DD became pregnant and informed PP, who suggested that she have an abortion. DD decided to have the baby, born in early 2015.

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Constitution 150

Why are we ignoring the Constitution Act of 1867?

By Léonid Sirota March 27, 2017 27 March 2017

Why are we ignoring the Constitution Act of 1867?

 

An anniversary might be thought an occasion for commemorating the event to which it refers. Not so, apparently, the sesquicentennial of Confederation. Celebrations are due to take place, to be sure, but a visitor to Canada might be forgiven for wondering what it is that we are about to celebrate. He or she might head to the government’s Canada 150 website, and find plenty of information about the festivities that are due to occur―but precious little about the historical events that we will, or will not, be marking. Yet in case you forgot, July 1 will be the anniversary of the coming into force of what we now call the Constitution Act, 1867.

This lack of interest in one part of our constitution is all the more remarkable when contrasted with the attention being showered on another―the Canadian Charter of Rights and Freedoms. It is turning 35 this year, and the Canadian government wants to make sure we know. A special section of the Department of Justice’s website, complete with nifty graphics, is dedicated to the Charter’s 35th anniversary, while the Justice Minister herself is travelling the country speaking and tweeting. There was indignation when the previous government ignored the Charter’s 30th. The watchword this time seems to be “never again”―except, that is, for that pesky old Constitution Act.

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Q&A

Law is A Buyer's Market: Jordan Furlong talks about his new book

By Yves Faguy March 24, 2017 24 March 2017

Law is A Buyer's Market: Jordan Furlong talks about his new book

 

CBA National sat down with author and analyst of the global legal market (and former editor-in-chief of this publication) Jordan Furlong to talk about his just released book, Law Is A Buyer’s Market: Building a Client-First Law Firm in which he describes a rebalancing of power in the legal marketplace from sellers towards buyers, and offers some guidance on how law firms can respond to this fundamental shift.

CBA National: What surprised you the most about writing this book?

Jordan Furlong: I suppose one of the positive, unexpected takeaways is that we're not as far behind, collectively speaking, as we might otherwise have expected to be. When I first approached the subject, I proceeded on the assumption that there really weren't very many examples of law firms or organizations that are making strides towards becoming the kind of legal service supplier that the legal market requires. And I'm happy to report that there really are some. The obvious ones that are always mentioned – and they should be. In the U.S. Bryan Cave is a clear leader; Littler Mendelson, which of course now has an office in Toronto; Seyfarth Shaw.  Some other firms don't get quite as much attention but are making strides in this direction: Perkins Coie is one of those; Davis Wright Tremaine certainly. Here in Canada, Gowlings usually heads my list of firms that are making real strides in this direction. But McCarthy's is making a serious investment and so is Osler. Among increasingly innovative Canadian firms, there’s Blakes and Torys too. I think the primary value in that for lawyers and law firms is they can say, “look, this can be done and it is being done right now in the market. There's no reason why we can't do it either.” And they can point them out to more skeptical colleagues.

N: So let’s say a firm recognizes that law is now a buyer’s market and is ready to align their innovation strategy, their interests and priorities with those of their clients. Where do you start?

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