The Power of Perspectives

The Canadian Bar Association
Trade

NAFTA: Canada and Mexico's prisoners' dilemma

By Yves Faguy February 22, 2017 22 February 2017

NAFTA: Canada and Mexico's prisoners' dilemma

 

In recent days, we heard Canadian and Mexican officials say that NAFTA should be re-negotiated trilaterally.  Foreign Minister Chrystia Freeland has stated that NAFTA talks must involve Mexico. And former PM Brian Mulroney has warned, “throwing friends and neighbours and allies under the bus is a position for a weak leader.”

That may be easier said than done, given that economic ties between Mexico and Canada, while not negligible, pale in comparison to ties between Canada and the U.S. on the one hand, and the U.S. and Mexico on the other. That can make standing united in the face of U.S. pressure to re-negotiate a little awkward.

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Legal marketplace

Why traditional firms will want re-regulation of the legal industry

By Yves Faguy February 20, 2017 20 February 2017

 

Last year, Malcolm Mercer wrote about the various regulatory challenges in the U.S. and Canada with respect to innovation in the provision of legal services. He describes how protectionist pressures have put the breaks on any efforts to involve law societies (and the ABA in the U.S.) in facilitating new ways of providing legal services.  Then, casting an eye to the future, Mercer guesses that, ultimately, regulators will be forced to face the music one way or the other:

It seems to me inevitable and proper that new ways of providing legal services will be allowed in unserved and underserved areas. Whether Canadian law societies are up to the challenge of allowing this is unclear. But if they don’t, someone else will.

If encouraging the evolution of the existing practice of law with new forms of capital and expertise is not in the cards, permitting new entrants is the alternative. The question then will be how new entrants should be regulated and by whom.

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Access to justice

How self-represented litigants view the justice system

By Yves Faguy February 17, 2017 17 February 2017

 

The National Self-Represented Litigants Project has released its report for 2015-16 tracking trends among the SRL population, including data about income:

We continue to see the majority of those representing themselves reporting lower income levels below $50,000 with the majority below $30,000. In the latest sampling, 51% state that their income is under $30,000 (in the 2013 Study this figure was 40%, and in the 2014-15 Intake Report it was 45%).

The next largest group (15%) report annual income of between $50,000- $75,000, followed closely by those reporting income of $30,000-$50,000 (1%). This also closely resembles the data reported in both the 2013 Study and the 2014-15 Intake Report.

Also consistent with earlier reporting, 8% of respondents (6% in both the 2013 Study and the 2014-15 Intake Report) report earning more than $100,000. As income rises, so does the likelihood that the respondent previously retained a lawyer for this matter. One respondent in this sample group reported having spent more than $100,000 on legal fees before becoming self-represented.

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Not Just a Bystander

Q&A: Dr. Harry Stefanakis on preventing violence in the workplace

By Mariane Gravelle February 17, 2017 17 February 2017

Q&A: Dr. Harry Stefanakis on preventing violence in the workplace


On March 8, 2017, coinciding with International Women’s Day, the CBA will release its new “Not Just a Bystander” Podcast, which is presented by the Women Lawyers Forum in collaboration with various CBA National Sections and the CCCA. This new podcast builds off of the Forum’s recent #WriteYourWrong campaign, through which individuals were encouraged to anonymously submit stories of their encounters with sexual assault and sexual harassment in the workplace, and strives to continue the discussion on this important issue and examine what lawyers, clients, and the community can do to fix this problem.

As part of a weekly series leading up to the release of the podcast, we’ve spoken with each of the podcast’s panelists about their efforts to end sexual harassment and violence. This week’s Q&A is with Dr. Harry Stefanakis, a psychologist and educator in Vancouver, British Columbia.  Dr. Stefanakis is an active participant in programs seeking to end violence in relationships and workplaces, and he has appeared in the video “Men Speak Up: Ending Violence Together”.

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Security

CBA on the Security of Canadians Information Sharing Act

By Mariane Gravelle February 16, 2017 16 February 2017

CBA on the Security of Canadians Information Sharing Act

 

The Privacy and Access Law Section has been active in law reform this year, engaging in a number of initiatives – including initiatives related to SCISA, the Privacy Act, Canada’s Anti-Spam Laws (CASL), and the Personal Information and Protection of Electronic Data Act (PIPEDA) – the latest of which being the CBA’s January 31st, 2017 submission to the Standing Committee on Access to Information, Privacy and Ethics (ETHI) study on the Security of Canadians Information Sharing Act (SCISA).

This appearance and submission to the ETHI Committee, led by Stikeman Elliott’s David Elder, was a follow-up to the recent CBA submission in response to the Government’s Green Paper on National Security, which itself echoed many of the concerns that the CBA had raised previously in its submission respecting Bill C-51, part of which contained SCISA.

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Charter law

Improving the Court Challenges Program

By Yves Faguy February 16, 2017 16 February 2017

 

Léonid Sirota sizes up the reinstated Court Challenges Program and reiterates his concern that “choosing to fund court litigation based on language and equality rights,” Parliament is in fact saying that it values those right over constitutionally protected rights.

Nicolas Hay acknowledges the argument, but writes that a well designed program still has merit. He cites the Canadian Human Rights Tribunal case upholding a discrimination complaint against the federal government by failing to provide an adequate level of child welfare on First Nations reserves, as the type of challenge that requires a financing program:

I wholeheartedly agree: privileging some rights over others can have serious implications for federalism, and a Program that treated all rights equally would be more appropriate.

The Program is undoubtedly worth saving if it were adjusted to include the changes I have outlined so far: a more accountable selection process; a more robust method of allocating subsidies; and an expansion to include all Charter rights...

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Environmental law

How to fix Canada's broken environmental assessment framework

By Supriya Tandan February 15, 2017 15 February 2017

How to fix Canada's broken environmental assessment framework

 

The Ministry of Environment and Climate Change has passed the halfway mark of its review of Canada’s environmental assessment laws and procedures.

The current framework originated with the passage of the Canadian Environmental Assessment Act in 1992. In 2012, the Harper government tried to limit the scope of the Act, by repealing and replacing it with a new version intending to reduce the number of projects that fell under its purview. However, the 2012 version of the CEAA 2012 has come under criticism for being unable to adequately address the magnitude of modern environmental problems. Most experts agree that in order to modernize the environmental assessment process, we cannot just tinker with the existing legislation but need to completely repeal and replace it. What is needed, they argue, is a brand new legislation with an evaluation infrastructure capable of grappling with the diffuse, inter-related and complex nature of environmental problems.

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Contract law

One-sided jurisdiction clauses: The case for validity

By Alexander Gay February 15, 2017 15 February 2017

One-sided jurisdiction clauses: The case for validity

 

Is it abusive for one party to an agreement to have the right to choose to pursue a claim in any competent court while the other party is bound to only one jurisdiction?

Until recently, asymmetrical jurisdiction clauses – also know as one-sided clauses –  in commercial agreements have come under assault.

Fortunately, that appears to be changing.

There have been a number of court decisions, from the French courts in particular, declaring asymmetrical jurisdiction clauses to be unfair and abusive and are therefore void. These courts have held that these clauses contravene the basic procedural principle of equality of parties, where one party is granted under the agreement better opportunities to bring claims against the other.

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Opinion

A telling reminder that what we do as lawyers matters

By Rebecca Bromwich February 14, 2017 14 February 2017

Many times, over the tinkling of glasses at dinner parties, I have heard lawyers reference the quote from William Shakespeare that runs ''The first thing we do, let's kill all the lawyers.'' The line comes from Henry VI and is uttered by Dick the Butcher, a supporter of the dissident Jack Cade, who supposed that if he disturbed the rule of law, he could seize the throne. Lawyers often rely on this quotation in speeches that present grand narratives about the important role of lawyers in warding off despotism.

 

Reference to this quotation has often felt unduly self-laudatory.  Praise for lawyers as defenders of democracy can ring discordant with the contemporary realities of the rising cost of legal services and other barriers to access to justice.

That isn’t to say that lawyers don’t deserve some recognition for what they do. The practice of law is a tough slog in many areas, and the machinery of the administration of justice, and the cultural baggage and business forms of the legal profession, can make work as a lawyer difficult indeed.

 

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Not Just a Bystander

Q&A: Gail Lynn Gatchalian on the pervasiveness of workplace sexual harassment

By Mariane Gravelle February 10, 2017 10 February 2017

Q&A: Gail Lynn Gatchalian on the pervasiveness of workplace sexual harassment

 

On March 8, 2017, coinciding with International Women’s Day, the CBA will release its new “Not Just a Bystander” Podcast, which is presented by the Women Lawyers Forum in collaboration with various CBA National Sections and the CCCA. This new podcast builds off of the Forum’s recent #WriteYourWrong campaign, through which individuals were encouraged to anonymously submit stories of their encounters with sexual assault and sexual harassment in the workplace, and strives to continue the discussion on this important issue and examine what lawyers, clients, and the community can do to fix this problem.

As part of a weekly series leading up to the release of the podcast, we’ve spoken with each of the podcast’s panelists about their efforts to end sexual harassment and violence. This week’s Q&A is with Gail Lynn Gatchalian, a lawyer and workplace investigator at Pink Larkin in Halifax, Nova Scotia. She is also the Vice Chair of the National Labour and Employment Law Section of the Canada Bar Association.

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CBA Board of Directors Elections

CBA Board of Directors Elections

By Mariane Gravelle February 9, 2017 9 February 2017

The CBA wants YOU – to join its board of directors!

Regular CBA members who want to contribute to the evolution of a more member-centric CBA are encouraged to apply for election to its Board of Directors. Deadline is February 17, 2017.

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Charter rights

Court Challenges Program reinstated and expanded

By Justin Ling February 7, 2017 7 February 2017

Court Challenges Program reinstated and expanded

 

The federal government has followed through on an election promise to reinstate the Court Challenges Program, and have agreed with a chorus of lawyers that Section 7 of the Charter of Rights and Freedoms ought to be included in the program.

“I am confident that through the new court challenges program, Canadians will have greater access to justice and greater protection of their rights,” Justice Minister Jody Wilson-Raybould said at a press conference on Tuesday.

The Canadian Bar Association has released a statement in support of the reinstated programme, also calling it a win for access to justice. “This program benefits all Canadians by funding test cases and interventions that will clarify our understanding of Charter and Official language rights,” the statement reads.

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