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The Canadian Bar Association
CBA advocacy

Statement by CBA President on US executive order on foreign entry

By Yves Faguy January 30, 2017 30 January 2017

 

The Canadian Bar Association's president René Basque has issued a statement on the United States' executive order on foreign entry, expressing concern over "the discriminatory nature and extraterritorial impact" of the EO on those it targets.

"While the US government has now given high-level assurances that the order does not apply to Canadian citizens and permanent residents, it seems to be based on the national interest exemption in the order and determined on case-by-case with no clear procedures," the statement reads. "Individuals may still face issues at ports of entry.

Basque also calls upon the federal government to examine how the order will affect  agreements and policies between Canada and the U.S., including the Safe Third Country Agreement, which manages requests for refugee protection in the two countries. "If refugee claimants no longer have access to a meaningful and fair adjudication process in the US, Canada must continue to fulfil its own international obligations and offer to process their claims in Canada," the statement concludes.

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CBA influence

Legal aid is an integral part of the social safety net

By Kim Covert January 30, 2017 30 January 2017

 

It’s time for the federal government to take a leadership role in access to justice, the CBA’s Access to Justice Committee says in a submission to the House of Commons Committee on Justice and Human Rights which is studying legal aid.

“Canada needs federal leadership in creating a properly funded, national legal assistance systems strategy, with services administered by each province and territory, and minimum national standards and comparable services available throughout Canada,” the submission says.

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International

Responding to Trump's executive order

By Yves Faguy January 30, 2017 30 January 2017

 

Shadi Hamid’s reaction to Trump’s now infamous executive order, temporarily suspending the U.S. refugee program and halting visas to citizens of several Muslim countries, is worth a read:

Some of the stories, after President Trump issued his executive order targeting Muslim immigrants, remind me of what I saw in the Middle East. No one has been killed, of course. But when an Iraqi who risked his life an interpreter for the Army arrives in New York only to be denied entry, it has the hallmarks of a different world, one he probably thought he had left behind: the fear of not knowing; the manipulation of law; the capriciousness of strongmen in midflight; and families divided in the name of politics

Benjamin Wittes bluntly calls the EO “malevolent.”  Acknowledging that the order is now tied up in litigation, because it was so poorly and incompetently crafted and therefore unlikely to be very effective from a legal point of view, his broader point is that its stated purpose — “detecting individuals with terrorist ties and stopping them from entering the United States” — is not the real purpose at all:

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Climate law

Who is really driving carbon pricing?

By Yves Faguy January 27, 2017 27 January 2017

 

Jason Kroft, Jonathan Drance and Luke Sinclair size up the outlook for carbon regulation and pricing now that the climate skeptics have taken over in the new Trump administration and take a somewhat sanguine view:

While government policy can significantly impact changes in corporate behavior, the transition away from coal to natural gas and renewables is largely driven by private market mechanics. Private actors invest in natural gas and renewables because they offer the highest level of risk adjusted return, not out of altruistic motives. The private market is increasingly incorporating carbon pricing into their risk analysis and investment decisions and project proponents at least consider the carbon “shadow price” in their financial metrics regardless of government policy.

With a long-term investment horizon, often approaching 30-40 years, most infrastructure projects currently in the planning phase will long outlive a Trump presidency. The views of one administration are largely irrelevant as project proponents must consider the risk of increased costs associated with carbon emissions over a project's useful lifetime.

Along similar lines, Lawrence Hsieh writes that it will be the cities that will have to respond to the challenges of climate change, because insurers who taken on municipal risk will be keeping an eye out their responses:

This is because many insurers invest their premiums in real estate. Falling property values due to inundation plus large disaster pay-outs and sudden upticks in disaster-related mortality could jeopardize insurer solvency across all lines of coverage, and threaten the reinsurers and capital markets investors who traffic in insurance risk.

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Foreign affairs

Passing judgment on Canada’s export of military goods

By Justin Ling January 26, 2017 26 January 2017

Passing judgment on Canada’s export of military goods

 

A law professor’s personal quest to force the Minister of Foreign Affairs to account for the decision to sell armoured vehicles to Saudi Arabia — and to justify that decision to the court — has reached the end of the road.

In a decision passed down by the Federal Court on Tuesday, Justice Danièle Tremblay-Lamer found that while the decision to sign off on the $15-billion export of arms to the Saudi government is reviewable by the courts, the minister retains a broad discretionary power to approve such sales.

The decision was a mixed bag for Daniel Turp (pictured above), a Université de Montréal professor in international law: It amounts to a recognition that litigants can, against the protests of the Attorney General, file such applications in the court; there remains, however, a high bar to succeed in such cases.

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Charter law

The Ernst decision: Taking issue with a divided Supreme Court

By Supriya Tandan January 25, 2017 25 January 2017

The Ernst decision: Taking issue with a divided Supreme Court

 

Though the Supreme Court of Canada recently denied an Alberta woman’s claim for damages against the province’s energy board, it remains unresolved whether its members could be sued for infringing a Canadian’s Charter rights and seek a remedy under Section 24 (1) of the Charter.  The Court’s majority found it to “be plain and obvious that s. 43 of the Energy Resources Conservation Act” – granting immunity to the regulator –  “on its face bars [Ernst’s] claim for Charter damages.”

It’s a decision that has raised a lot of eyebrows.

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Vote to leave the EU

Why Brexit requires an act of Parliament

By Yves Faguy January 24, 2017 24 January 2017

 

The U.K. Supreme Court has ruled that an act of Parliament is needed before the government can trigger article 50 of the Treaty of Lisbon, notifying its intent to pull out of the European Union, a process that must be completed within two years.

The president of the Supreme Court, Lord Neuberger of Abbotsbury, read a summary of the ruling:

Section 2 of the 1972 [European Communities] Act provides that, whenever EU institutions make new laws, those new laws become part of UK law. The 1972 act therefore makes EU law an independent source of UK law, until parliament decides otherwise.

“Therefore, when the UK withdraws from the EU treaties, a source of UK law will be cut off. Further, certain rights enjoyed by UK citizens will be changed. Therefore, the government cannot trigger article 50 without parliament authorising that course.

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Trade

Post TPP, what are Canada's trade alternatives?

By Yves Faguy January 23, 2017 23 January 2017

 

In addition to signing an executive order to renegotiate NAFTA, U.S. President Trump is formally withdrawing his country from the Trans-Pacific Partnership today. Under the terms of the trade deal, it cannot come into force without the participation of the U.S. Meanwhile, a China-led trade deal for Asia Pacific is reportedly nearing completion.

Trade Minister Francois-Philippe Champagne expressed hope last week that Canada could pursue an alternative multilateral trade deal in the Pacific Rim. It could also negotiate a bilateral free trade agreement with Japan. It is planning exploratory trade talks with China.

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Legal marketplace

The billable hour is effectively dead

By Yves Faguy January 23, 2017 23 January 2017

The billable hour is effectively dead

 

The 2017 edition of the annual Georgetown/Thomson Reuters Report on the State of the Legal Market is out.  Almost a decade following the global financial crisis of 2007-2008, the report describes a lost decade of sorts marked by stagnating demand for law firm services, decline in productivity for many lawyers – measured as a reduction of 144 billable hours per year per lawyer, and client pushback against rate increases:

In considering realization rates, it must be noted that comparing collection realization to standard rates undoubtedly produces a somewhat skewed result, since in most firms standard rates have long since ceased to have any real significance for most clients. Like “rack rates” in hotels, standard rates in law firms have effectively become nominal rates that are arbitrarily set and are almost never paid by any significant client. Accordingly, it is perhaps more meaningful to look at the decline in realization over the past decade as measured against worked rates, or the rates actually negotiated with clients.

The report points to evidence that firms have managed to keep their expenses under control but warns of declining realization rates and calls into question the ability of firms to rely much longer on rate increases no matter how modest they may be:

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CBA Futures

Legal futures round-up: January 23, 2017

By Brandon Hastings January 23, 2017 23 January 2017

Legal futures round-up: January 23, 2017

 

Inspired by the CBA Legal Futures report on Transforming the Delivery of Legal Services in Canada, here’s our regular round-up of noteworthy developments, opinions and news in the legal futures space as a means of furthering discussion about our changing legal marketplace.

McCarthy Tétrault LLP has acquired e-discovery law firm Wortzmans in an arrangement that will see Susan Wortzman join the firm as an equity partner. Wortzmans will continue to operate as a separate e-discovery and managed review service for its clients.

Third-party litigation funding, with its increased Canadian prevalence, has once again come under scrutiny for both its potential to increase access to justice, and the potential risks it poses.

McGill’s law school has begun offering a course in indigenous law. The course is part of McGill's response to the Truth and Reconciliation Commission (TRC), which recommended Canadian law students learn more about Indigenous law and how Indigenous people have interacted with the justice system.

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Trade

Breaking down Canada’s internal trade barriers

By Justin Ling January 19, 2017 19 January 2017

Breaking down Canada’s internal trade barriers

 

Beer is flowing freely from province to province; wine could soon follow. And if some political mavericks get their way, provincial agricultural barriers could be next.

Credit political will and perhaps a broader reading, of late, of Canada’s founding documents: Internal free trade has been a hot topic.

Ever since a New Brunswick Court of Appeal sided with an ale-loving New Brunswick man in R. v. Comeau, it seems like it’s just been a matter of time until the Supreme Court of Canada weighs in and Canada will become, once and for all, a free-trade zone.

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Business law

Friends, family and angels: Lend me your cash

By Kim Covert January 18, 2017 18 January 2017

Friends, family and angels: Lend me your cash

 

Long before many startup companies do their dances with venture capitalist dragons, they have to have smaller, important conversations with angels – friends, family members and the kind of people who make a business of handing out micro-loans (all things being relative) based on faith.

“An angel investor or an angel round or a seed round tends to be early in a company’s life-cycle, tends to be a pre-revenue stage, sometimes even pre-proof-of-concept,” says Michael Reid of McMillan LLP in Vancouver. He’ll be one of two presenters, along with Robert Cowan of McInnes Cooper in Halifax, for next February’s Skilled Lawyer Series webinar Business Finance for Lawyers I: Raising Seed Capital for a Startup.

“An angel investor is usually someone who’s making an investment on a lot of faith. It’s as much about investing in the individual and the idea as it is about investing in the actual business.”

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