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The Canadian Bar Association
CBA Futures

Legal futures round-up

By Yves Faguy May 16, 2018 16 May 2018

Legal futures round-up

 

Time for a round-up of notable trends and developments that highlight innovation in the legal industry.

Rosenblatt Solicitors announced plans to go public, and is hoping to raise £43m on its IPO, which would make it the largest of its kind. It would be the fourth English law firm to do so since the liberalization of the market for legal services in England and Wales five years ago. The other three are Gately, Keystone and Gordon Dadds.  

Allen & Overy (A&O) is bringing in a second cohort of startups into its tech space Fuse, which launched in London last year. The new cohort, includes Canadian based AI document review platform Kira Systems. According to Fuse chairman Jonathan Brayne: “This cohort’s focus is very different to that of the first – there’s a strong AI theme here.”

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Religious freedoms

Canada’s “institutional turn” in religious freedom litigation

By Yves Faguy May 14, 2018 14 May 2018

Canada’s “institutional turn” in religious freedom litigation

 

Kathryn Chan writes in an article published in the Canadian Bar Review that the “institutional turn” in religious freedom litigation we have seen in Europe and the United States is now apparent in Canada.

The Supreme Court of Canada is scheduled to render judgment in three religious freedom cases in the fall, in Wall v Highwood Congregation of Jehovah’s Witnesses and two Trinity Western University appeals. But until now, the top court’s approach to institutional religious freedom claims, “is deeply ambiguous,” Chan explains:

The big unanswered question is the “constitutional personhood” question: are corporations included in the “everyone” that is entitled to the protections of freedom of conscience and religion under section 2(a) of the Charter? In Loyola High School, the majority of the Court declined to decide whether corporations “enjoy religious freedom in their own right under ... the Charter”, “since the Minister was bound ... to exercise her discretion in a way that respect[ed] ... [the] religious freedom of the members of the Loyola community who [wished to offer or] receive a Catholic education.” However, the remaining three justices declared their willingness to recognize the religious freedom of a “non-profit religious corporation”, constituted for the purpose of offering a Jesuit education to Catholic children in Quebec. The minority justices also proposed a general test for an institutional religious freedom claim, stating “that an organization [should meet] the requirements for s. 2(a) protection if (1) it is constituted primarily for religious purposes, and (2) its operation accords with these religious purposes.”

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Competition law

Hipster antitrust: Not so cool

By Justin Ling May 11, 2018 11 May 2018

Hipster antitrust: Not so cool

There are many things antitrust law shouldn’t do: Like fixing everything from bad labour practices, low wages, media centralization, and everything in between. At least that was the consensus among a panel of legal experts discussing the growing influence of the hipster antitrust movement at the CBA’s Competition Law Spring Conference in Toronto on Thursday.

The question put to them for debate, at a time when there is a growing backlash against tech giants in particular, was whether public interest or other consumer-focused considerations have a place in antitrust enforcement.

Joshua Wright, a George Mason University Professor and Executive Director of the Global Antitrust Institute, located near D.C., has been pushing back against the rising tide of populism that is trying, in his view, to twist antitrust law into a sort of progressive swiss army knife. “Most of the ideas have a bit of a retro, blast-from-the-past feel,” he said.

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Equal rights

SCC strikes down part of Quebec’s pay equity law

By Yves Faguy May 10, 2018 10 May 2018

SCC strikes down part of Quebec’s pay equity law

 

The Supreme Court of Canada has confirmed, in a pair of section 15 Charter  decisions, the unconstitutionality of provisions of Quebec’s Pay Equity Act, which was initially passed in 1997 to address systemic wage discrimination against women.

The challenge came from unions representing employees who work in predominantly female job classes. They were arguing that the amendments adopted in 2009 had in effect substantially reduced the rights and benefits of employees.  These amendments imposed pay equity audits every five years, which critics charged was insufficient and served only to allow inequities go uncorrected for too long in the interval between audits.  The province was arguing that denying compensation between audits was a more realistic approach to ensuring compliance by companies. The top court disagreed  (with Justices Côté, Brown and Rowe dissenting):

Although the scheme purports to address systemic discrimination, it in fact codifies the denial to women of benefits routinely enjoyed by men — namely, compensation tied to the value of their work. Men receive this compensation as a matter of course; women, under this scheme, are expected to endure five-year periods of pay inequity, and to receive equal compensation only where their employer voluntarily acts in a non-discriminatory manner, or where they can meet the heavy burden of proving the employer engaged in deliberate or improper conduct. The scheme thus places barriers along the path to equal pay for women. And it correspondingly tolerates undervaluation of women’s work whenever women cannot clear the specific hurdle of proving that they should be paid equally not merely because they are equal, but because their employer acted improperly. Absent such behaviour, working women are told that they must simply live with the reality that they have not been paid fairly, even where a statutorily mandated audit has made that fact clear. In this way, the scheme, by privileging employers, reinforces one of the key drivers of pay inequity: the power imbalance between employers and female workers. By tolerating employer decision-making that results in unfair pay for women, the legislature sends a message condoning that very power imbalance, further perpetuating disadvantage.

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CBA influence

Consent guidelines: Reviewing the revisions

By Kim Covert May 9, 2018 9 May 2018

 

In a letter to the Office of the Privacy Commissioner, the CBA’s Privacy and Access Law Section and CCCA note that many of the problems it identified last year in the OPC’s draft guidelines for obtaining meaningful online consent were still present after those guidelines were revised.

The Sections reiterate four recommendations from the earlier submission.

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Privacy

How GDPR is giving legal cover to Facebook

By Yves Faguy May 9, 2018 9 May 2018

How GDPR is giving legal cover to Facebook

 

Two weeks before the EU’s General Data Protection Regulation (GDPR) comes into effect, Reuters is reporting that most national regulators aren’t ready to enforce the new law, citing lack of funding and resources and data protection laws needing to be updated in their own national jurisdictions:

Their responses suggest the GDPR enforcement regime will be weaker than the bloc's anti-trust authority run directly by the European Commission, the EU executive, which hit Google here with a 2.4-billion-euro ($2.9 billion) fine last year.

That hasn’t stopped Facebook from getting ahead of the rollout with new privacy options, which critics say rely on subterfuge to encourage users to share more personal information, not less.  Kalev Leetaru notes that the internet giant is giving users the opportunity to turn on face recognition in Europe and Canada, which have stricter privacy controls than in the U.S. But it the process is designed to encourage users to lazily click 'Accept and Continue' to switch it on. Which begs the question whether the GDPR is really going to carry out the objective of giving people more control over their personal information:

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Criminal justice

The prosecutor’s role in seeking justice

By Yves Faguy May 8, 2018 8 May 2018

The prosecutor’s role in seeking justice

 

What is a prosecutor’s role in seeking justice in criminal matters? And what does that mean from an ethical perspective? As Professor Alice Woolley writes in her latest article for the Canadian Bar Review, the duty to seek justice “is inherently vague.” The problem, she argues is that Canadian courts tend to rely on the seek justice ethic in assessing prosecutorial conduct. This is problematic in a system in which prosecutors are also expected to perform an adversarial function in court for a number of reasons:

It is vague, contradictory, improperly incorporates undefined moral concepts into legal duties and does not reflect the work that prosecutors do. It does not provide prosecutors with meaningful guidance, and instead risks contributing to prosecutorial arrogance. It may tip the playing field of a criminal trial in the prosecutor’s favour, which directly opposes the principles of criminal law where the benefit of the doubt ought to run to the accused.

A better approach requires identifying the norms that underlie the two functions that prosecutors play in a criminal trial—the exercise of prosecutorial discretion and the conduct of a matter—and articulating the obligations for prosecutors that flow from those norms. Doing so does not create as eloquent or evocative statement of the prosecutor’s duties as the seek justice ethic, but it does permit a more careful and nuanced analysis of the prosecutor’s duties, and of the difference between proper and improper prosecutorial conduct. And even if less eloquent and evocative, a mandate of respecting substantive law and procedural fairness to ensure the rule of law is a mandate of honour and importance, which any prosecutor ought to feel proud to discharge.

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The Pitch

The Pitch winners on tackling data in the legal industry

By Yves Faguy May 7, 2018 7 May 2018

 

Last week in Toronto, Digitory Legal walked away the top prize at The Pitch, the legal innovation startup competition put on by the Canadian Bar Association and Law Made in partnership with LexisNexis. The outfit, based in the San Francisco Bay Area has built a cost analytics and management platform for law firms and corporate legal departments. We spoke its CEO and founder, Catherine Krow, about the challenges facing law firms in getting a handle over their data.

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Defamation law

Defamation law in Canada: A look at the data

By Yves Faguy May 7, 2018 7 May 2018

Defamation law in Canada: A look at the data

 

Hilary Young, in a recent Canadian Bar Review article, brings some data to the debate surrounding defamation law reform in Canada.  Noting that defamation is “an old tort that has changed relatively little over the centuries,” Young explains that the push behind efforts to reform it are driven by changes in how society views free speech in an era where communications technology is evolving at breakneck speed.  Also driving the push until now has been “anecdotal evidence” that the threat of litigation under defamation law is putting a chill on free speech. The study focuses on reported decisions between 1973 and 1983 and between 2003 and 2013:

The study has several interesting results. It demonstrates that the average non-pecuniary damages award has almost doubled between the two periods studied—even when adjusted for inflation. It reveals that the percentage of corporate defamation cases (versus those brought only by human beings) is significant—about a third—but that the percentage has not increased greatly over the time periods examined. The study indicates that reported defamation cases resulted in liability significantly less often in he later period (in only 28% of cases) than in the earlier period. Moreover, rates of liability were higher in cases involving new media (internet and email) publications than those involving other forms of publication. The study shows that punitive damages were awarded to corporations more often than to human plaintiffs, and in higher amounts. It also shows that punitive damages were awarded in about a quarter of all defamation cases in both periods.

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Intellectual property

Can a machine produce copyright material?

By Yves Faguy May 3, 2018 3 May 2018

Can a machine produce copyright material?

 

As businesses across all industries set their sights on a future built on artificial intelligence, there is a growing sense that policy makers are going to have to get serious about thinking through the impact of AI on intellectual property.  James Hinton and Peter Cowan wrote a piece about this last year, rightfully pointing out that most entrepreneurs in tech innovation have a limited understanding at best about IP in general.  Most of the concerns tend to focus on patents, particularly as Canada has set out to position itself as a hub of AI initiatives.

At the CCCA National Conference in Toronto this week Stephen Spracklin, a City of Mississauga lawyer focused on IT and IP issues raised another set of concerns around copyright, particularly as it applies to the more advanced artificial general intelligence, which is capable of learning in its own right without any human intervention (as opposed to artificial narrow intelligence – or ANI –, which is algorithmic learning that analyzes and synthesizes data, and with the input of human resources is able to arrive at a conclusion):

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Corporate counsel

SCC dismisses leave in litigation privilege case dealing with internal investigation

By Yves Faguy May 3, 2018 3 May 2018

The Supreme Court of Canada has dismissed leave to appeal in Alberta v. Suncor Energy Inc. Alberta, which raised some interesting litigation privilege questions in the context of internal investigations.

The case tracked the story of a Suncor employee who died from injuries at a worksite near Fort McMurray.  In anticipation of litigation, Suncor’s legal counsel launched an internal investigation and asserted solicitor-client privilege over collected materials.  Though Suncor shared its report with government occupational health and safety officers, it would not accede to their request to interview investigators and get access to certain documents. The Alberta government sought an order to force Suncor to provide the refused materials and allow OHS to interview Suncor’s internal investigators, or provide further particulars about the claims of privilege.

The trial judge found that the dominant purpose of Suncor’s internal investigation was in contemplation of litigation. Therefore all material coming out of that investigation was subject to legal privilege.  But the Alberta Court of Appeal narrowed somewhat the privilege claim that can exist over internal investigations.  It found that the simple fact that documents were collected in the course of an investigation did not make them privileged per se, if not created for the dominant purpose of litigation (as opposed to becoming privileged by merely having been collected as part of the investigation)

The case held particular interest for corporate counsel who are the ones typically called upon to conduct internal investigation and to assess the legal risks that can result from an incident.

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CCCA Conference

Trends in business: #M&AToo?

By Kim Covert May 2, 2018 2 May 2018

Trends in business: #M&AToo?

 

A panel discussion on global trends in mergers and acquisitions on Tuesday landed on an increasingly familiar topic in a fairly unfamiliar place.

Panellists for the plenary session were Jeremy Fraiberg, National Co-Chair and Parter, M&A Practice, Osler, Andrea Wood, Senior Vice-President, Legal Services, Telus, and Anthony Pagano, Chief Counsel, Mergers and Acquisitions, Royal Bank of Canada.

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