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The Canadian Bar Association
Legal marketplace

Third-party litigation funding enters a new chapter

By Yves Faguy December 22, 2016 22 December 2016

Last week, Burford Capital, the world’s largest litigation finance company the world, Ltd., bought its main rival Gerchen Keller Capital for $US 160 million. The tie-up is being hailed as  a sign that the litigation funding industry is maturing in the U.S (it is far more established in other jurisdictions, namely Australia and the UK).

Alison Frankel reported on the reasoning behind the tie-up:

The two companies operate via different business models - and the combined Burford plans to continue to use them both. Burford's management owns 13 percent of its publicly traded equity, so its principals make money alongside investors when the firm's investments pay off.

Gerchen Keller, by contrast, is structured like a hedge fund. It has raised more than $1 billion in a handful of closed-end investment vehicles, mostly from large institutional investors such as university endowments and public pension funds, including Michigan and Texas municipal employee funds.

Gerchen Keller earns a stream of income from the 1-to-2 percent management fees it charges for deciding how to invest the money it has raised. It may also bring in performance fees of 15 to 50 percent if its investment decisions pay off. Gerchen's funds have not been in operation long enough to have kicked off performance fees, which will belong in the future to the combined entity.

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Legal marketplace

Looking to 2017: Jordan Furlong on the state of the legal marketplace

By Yves Faguy December 21, 2016 21 December 2016

Looking to 2017: Jordan Furlong on the state of the legal marketplace


As we close out the year, it’s time to take a look at where the legal market is at, and where it might be going. I caught up with legal market analyst and principal of, Jordan Furlong, for what is becoming an annual year-end tradition, where we discuss key developments in the legal industry.

CBA National: Where do you see the legal market going in 2017?

Jordan Furlong: There are probably two parallel tracks of change. Within the legal profession, law firms and the legal community, my sense is that we will continue to see a slow but steady evolution of service provision. I’m not seeing any imminent sign of major change or extraordinary innovation. For the most part the profession’s leadership — law societies, courts and judges, attorneys general, and of course bar associations such as the CBA — generally seem to be positioning themselves in favour of cautious, careful progress towards a number of broadly stated goals. That seems to be consistent with what we’ve seen in the past few years.

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Legal innovation

A technician of the robot revolution

By Kirsten Thompson December 20, 2016 20 December 2016

A technician of the robot revolution


I worry about my role in the future. 

Sure, pundits and thought leaders call it “legal innovation” but, frankly, I’m at risk of being replaced by a robot. And, my friend, so are you. 

The machines have already consolidated their gains in automated industries and are continuing their migration into white-collar work. Artificial intelligence (AI) and cognitive computing, the “next generation” of computing, will render most paperwork (and pushers of paper) redundant. Even contracts, the bread and butter of most lawyers, will be automated—there are already small-scale examples of self-executing “smart contracts.” 

In terms of litigation, not only are computers demonstrating pretty good batting averages in predicting case outcomes (the judicial decisions of the European Court of Human Rights were recently predicted at 79 per cent accuracy using AI) but they are also pretty good at predicting your personal batting average. That’s right—there’s at least one service (Premonition Analytics) that uses AI, predictive analytics and data mining to figure out which lawyers win the most before which judge. 

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Corporate taxes

Apple's legal challenge to EU's Irish tax decision

By Yves Faguy December 20, 2016 20 December 2016


Apple and the Irish government are challenging the European Commission’s August ruling, published yesterday, ordering Ireland to recoup undue tax breaks to the tune of $13 billion euros. The Commission found that the Irish government had selectively conferred an advantage on the iPhone maker – a measure, it says, that carries the risk of distorting competition and affecting trade between EU member states.

Under the terms of the Treaty on the Functioning of the European Union, the measure amounts to state aid, which is forbidden under the common market’s rules.

Apple has responded by charging that the EU has “retroactively changed the rules, disregarding decades of Irish tax law, U.S. tax law as well as global consensus on tax policy." The Irish government is making the case that tax matters are for each member state to decide.

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Criminal Law

Will the Criminal Code finally get a makeover in 2017?

By Justin Ling December 19, 2016 19 December 2016

Will the Criminal Code finally get a makeover in 2017?


It might not be the sexiest issue for the Minister of Justice to address, nor is it the most pressing, but an overhaul of the Canadian criminal statutes has been a long time coming, and this government has signalled that it is at least looking at taking some baby steps to cut away the dead weight inside the 2540-page-and-growing document. 

After a year in the job, Justice Minister Jody Wilson-Raybould seems to be coming around to the idea. At a speech in October, the minister highlighted that she’ll be studying the Criminal Code to see where it can be cleaned up. 

“Earlier this year, the Minister instructed officials from the Department of Justice to conduct a review of Criminal Code provisions found to be unconstitutional, with a view to updating the Criminal Code,” a spokesperson for Wilson-Raybould said in an email. “That work is ongoing.” 

She has her work cut out for her. Inside the laws are prohibitions on witchcraft, criminal sanctions on making or distributing violent comic books, and some Victorian-era language on obscenity.

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Corporate Counsel

Analyze this: How data is reshaping the in-house role

By Jennifer Lewington December 18, 2016 18 December 2016

Analyze this: How data is reshaping the in-house role

In 2014, Charles McCarragher and his legal team at TD Bank Group faced a problem familiar to in-house counsel: too much work and not enough people to do it.

More staff, in his view, was not the answer. “Adding lanes to the highway is not the way you solve rush-hour traffic,” says Mr. McCarragher, Assistant Vice-President Legal (Technology), especially without a quantitative explanation for “we’re busy.” Instead, he turned to data analytics—the business of mining internal and external company information to drive decisions—a strategy gaining ground with in-house counsel as they look to manage growing demand for legal services and add value to an organization’s bottom line.

“There is a high level of acknowledgement that data analytics is central to the discharge of a general counsel’s mandate,” says Deloitte Partner David Stewart, co-author of the consulting company’s annual General Counsel Report. “The question is, ‘Are they happy with where they are today and do they feel they are optimizing the data and tools to their full advantage?’ A lot of people would say there is a lot of room for improvement.”

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CBA Influence

Acting on the Indian Act

By CBA/ABC National December 15, 2016 15 December 2016


If the government enacts Bill S-3 – or some version of it – on or before the Feb. 3, 2017 deadline set by the Quebec Superior Court, as many as 28,000 to 35,000 people could become eligible to be registered as Status Indians under it.

And the proposed legislation’s lack of provision for that eventuality is just one of the concerns the CBA’s Aboriginal Law Section talked about in its submission when it appeared before the Senate Committee on Aboriginal Peoples on Nov. 29 and before the House Committee on Indigenous and Northern Affairs on Dec. 5.

The submission traces the long history of steps toward Bill S-3, including the 1985 Indian Act amendments that fell short of their intention to eliminate discrimination against women in the Indian Status registration system, as it retained a gender-based inequity in generations to come. 

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Cyber security

Preparing for a cyber security tsunami

By Jim Middlemiss December 15, 2016 15 December 2016

Preparing for a cyber security tsunami


Ask Nikki Latta about the biggest change in her nine years of practicing in-house at the consulting giant Deloitte LLP, and the Assistant General Counsel says it is the focus the firm’s clients are placing on cyber security and protecting their IT systems from unwanted intrusions.

“What we are seeing is that clients want to understand what security protections are in place with respect to the information they are sharing with us and with respect to the access they are providing us to their networks. They want to know who they are dealing with…so they can satisfy themselves that they are in good hands.”

Part of Latta’s job is to facilitate the negotiation of large IT outsourcing contracts, which drives part of Deloitte’s consulting business, so she has had a front-row seat to the emergence of cyber crime as a major issue facing businesses.

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Climate law

Would Canada’s framework on climate change withstand a constitutional challenge?

By Supriya Tandan December 15, 2016 15 December 2016


Last week, eight provinces and all three territories signed the Pan-Canadian Framework on Clean Growth and Climate Change, with a view to meet the country's target to reduce emissions by 30 per cent, relative to 2005, by 2030. Provinces who are already well on their way to meeting the framework include Ontario, Québec and Alberta. Opposing the framework are Saskatchewan and Manitoba, each for their own reasons. Those who have signed on have yet to announce the exact measures they will take to match the federal timetable.

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The practice

The common interest: When privileged information is shared

By Alexander Gay December 14, 2016 14 December 2016


In-house counsel are often asked to share privileged materials with third parties that have a common interest in a piece of litigation. Common interest privilege is a category of privilege that permits parties to disclose privileged evidence between themselves without losing privilege. The determination of common interest is a factual one, which may consider whether the parties share a common goal, seek a common outcome or have a self-same interest on either or both the general claims (e.g., both sued for exactly the same alleged misconduct) or certain specific allegations (e.g., an expert report on one specific matter in issue). Common interest privilege is asserted and the documents are shared—often with little to no understanding about the nature of the privilege claim being asserted or how to best share documents with the third party in a way that protects its subsequent dissemination.

A common interest privilege is not a stand-alone privilege that can be claimed on all documents shared with third parties in the face of actual or impeding litigation. In order to claim the benefit of a common interest privilege, the documents must benefit from either solicitor-client privilege or litigation privilege. Where the privileged document is shared, both the originating party and the third party receiving the document can claim a common interest privilege, independent of one another.

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Criminal justice

Real solutions for fixing court delays

By CBA/ABC National December 13, 2016 13 December 2016


Earlier this month, Ontario’s Attorney General Yasir Naqvi (pictured above) and Quebec’s Justice Minister Stephanie Vallée both announced measures to reduce the seemingly intractable problem of court delays in our justice system, primarily by promising to hire more judges and prosecutors and to inject cash into the justice system.  Nova Scotia appears to be leaning more heavily on restorative justice programs as way of moving offenders charged with less serious crimes away from the court system.

Michael Spratt calls these band-aid solutions. He argues for the government to start reigning in prosecutors:

Any public anger should rightly be directed at the actions of the Crown. And this is where the government’s attention should be focused. A handful of additional judges and prosecutors will do little to change a systemic Crown culture of complacency, possessiveness and overzealousness.

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Children's rights

Rights of the child: Have we really come such a long way?

By The Hon. Donna J. Martinson, Caterina E. Tempesta and Suzanne S. Williams December 13, 2016 13 December 2016


Twenty-five years after ratifying the United Nations Convention on the Rights of the Child (CRC) Canada ranks 17th out of 29 affluent nations for children’s overall wellbeing. Canada drops to 26th for inequality between the most affluent and least affluent children. Children of all backgrounds are affected by our poor performance, but high risk and marginalized youth are particularly vulnerable.  So, what can lawyers do to improve the state of Canadian children?

Since Canada ratified the CRC on December 13, 1991, it has become the most universally accepted human rights instrument with all but one country in the world having ratified it. The CRC contains a bundle of civil, political, economic, social and cultural rights to support children’s optimal development and wellbeing.

While the CRC is not directly incorporated into domestic law through enabling legislation, it is referenced in Canadian law in limited instances, for example, the preamble to the Youth Criminal Justice Act, and has been cited in Supreme Court of Canada decisions. Canada’s position is that such enabling legislation is not required as it ensured when the CRC was ratified and continues to ensure that its laws, policies and practices comply with the CRC. It is presumed that Canadian statutes conform to the CRC and other international instruments.

However, in the most recent “report card” on Canada’s CRC compliance, the UN Committee on the Rights of the Child said the absence of comprehensive CRC legislation results in inconsistencies in implementing child rights across the country.  Limited awareness of the CRC among not only children, but also adults, was noted by the Committee, as well as the need for child rights training for professionals working with children, including judicial authorities.

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