The Power of Perspectives

The Canadian Bar Association
Internet law

B.C. appeals court: Virtual presence enough to enforce production order

By Justin Ling January 17, 2018 17 January 2018

B.C. appeals court: Virtual presence enough to enforce production order

 

Since the Supreme Court passed down its decision last June in Equustek, lawyers have been waiting with baited breath to see just how broad an interpretation the new internet regime will receive from the courts. Global tech companies, including Google, hoped to see the Canadian — and even American — tribunals rein in the ability of our courts to order companies to take actions beyond our jurisdictional borders.

A recent B.C. appellate decision suggests that Equustek isn’t going to be relegated to a tiny corner of Canadian law. It is very much the standard.

What happened with Equustek? Ever last year’s Supreme Court ruling in Equustek that Canadian courts have jurisdiction to make orders for foreign-based internet companies that carry on business in Canada, there have been concerns about the practical implications.

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Corporate counsel

Crisis management in the social media age

By Julie Sobowale January 16, 2018 16 January 2018

Crisis management in the social media age

 

When a crisis hits, you want a calm person at the helm of your crisis management. That’s what Kelly Friedman learned early on in her career.

“If an injunction comes in, I’m the one who is calm in those situations,” says Friedman (pictured above), who is national counsel of BLG’s Discovery Services Group in Toronto, specializing in e-discovery, cybersecurity and privacy. “One partner once told me, ‘Thank you for your equanimity.’ I had to look up the word and it means even keel. The more nervous people get, the more calm I get. It’s a great tool as a litigator.”

Litigators aren’t the only ones who need a calm head. How an organization can weather a crisis is now largely based on who gets the information out first. With the rise of social media and the increasingly rapid news cycle, general counsel must be more prepared than ever to deal with the next crisis.

A situation can escalate quickly through social media. On September 7, Equifax revealed that 143 million Americans and 100,000 Canadians (later revised to 145.5 million and 8,000, respectively) had their data stolen as the result of a data breach. The story quickly became viral, with thousands of Twitter users tweeting under hashtag #Equifax. Within two days of the initial report, the Chief Information Officer and the Chief Security Officer retired and two class-action law suits were filed. Then, over the next couple of days, Equifax accidentally tweeted links to phishing websites (websites that mirror others, normally to steal information) to breach victims, causing further criticism and social media outrage. 

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CBA influence

Cannabis laws could have disproportionate effect on immigrants

By Kim Covert January 16, 2018 16 January 2018

 

The legislation to legalize cannabis in Canada comes hand in hand with proposed amendments to other laws and regulations, including the offences that could lead to inadmissibility under the Immigration and Refugee Protection Regulations.

The CBA’s Immigration Law Section notes that offences in the Cannabis Act are broader than those in the Controlled Drugs and Substances Act, which it effectively replaces, and that the potential impact on permanent residents and would-be immigrants is much harsher.

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Corporate counsel

Chasing the money: GCs move needle on law departments as a cost centre

By Jim Middlemiss January 15, 2018 15 January 2018

Chasing the money: GCs move needle on law departments as a cost centre

 

Joel Schuster is not your typical in-house lawyer. In addition to overseeing the usual legal functions, such as compliance and corporate commercial matters, Schuster, Chief Legal Officer, Senior Vice President and Corporate Secretary at Avigilon Corporation in Vancouver, has responsibility for bringing in revenues.

He is in charge of licensing the patent portfolio at the fast-growing Avigilon, which provides video security and analytic solutions.

That means the legal department has its own profit and loss statement, and the division sets a budget on how much it expects to earn from the 740 patents in its portfolio.

“Our revenues blend with the rest of the company’s revenue,” he explains. “We’re here to contribute what we can. It does help that we can bring in revenues. It makes the budgeting process easier.”

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Blog

Guatemalan lawyer faces death threats for actions against mining company

By Kim Covert January 15, 2018 15 January 2018

 

Everyone deserves to be able to do their jobs without death threats and acts of intimidation and violence – including lawyers working to support the rights of an Indigenous people against corporate interests. Indeed, the United Nations Basic Principles on the Role of Lawyers state in part that:

  • Governments shall ensure that lawyers are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference; and
  • Where the security of lawyers is threatened as a result of discharging their functions, they shall be adequately safeguarded by the authorities.

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Legal marketplace

Law firm profitability is not what it seems

By Yves Faguy January 12, 2018 12 January 2018

Law firm profitability is not what it seems

 

The 2018 edition of the annual Georgetown/Thomson Reuters Report on the State of the Legal Market paints a portrait of law firm financial performance very much following the trend of years past, characterized by sluggish growth in demand, a decline in productivity, a modest rise in rates, decline in realization rates and a modest rise in expenses (on account of salary increases at the associate level).

First a quick caveat. The report is squarely focused on U.S firms, mid-size and bigger, but the patterns should be of interest to firms in the Canadian marketplace.

And the takeaway message from this report is that law firms are far less profitable than they used to be before the financial crisis, and that any lingering notion that “law firms are among the world’s more profitable businesses” is pure fantasy:

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Trade

Canada's WTO broadside: What's the strategy ?

By Yves Faguy January 11, 2018 11 January 2018

Canada's WTO broadside: What's the strategy ?

 

Anticipating an imminent U.S. retreat from NAFTA, the Canadian government has decided to go on the offensive in managing its trade relations with our Southern neighbor.  By filing a WTO complaint over U.S. use of punitive duties, and charging that the U.S. is in violation of international trade rules, not just in its dealings with us but other countries such as China, “Canada is taking a run against the entire U.S. trade regime,” says John Boscariol, a trade lawyer with McCarthy T├ętrault.

“It’s interesting that Canada has chosen to file such a broad complaint,” Boscariol told CBA National. “In the past Canada has filed one-off cases in relation to a specific product or dispute such as softwood lumber. But this is very different in that it is really more of a systemic challenge to [U.S.] measures.”

Why now?

Given recent musings that Ottawa expects the Trump administration is about to pull the plug on NAFTA, there is speculation that Canada is either trying to gain leverage ahead of the next round of negotiations, or signaling that, with no free trade agreement in place, it intends to use the WTO to fight its trade battles.

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CBA influence

30 is the new over-the-hill: Time to update language law

By Kim Covert January 9, 2018 9 January 2018

 

Canada’s Official Languages Act turns 30 next year, and is beginning to show its age.

CBA President Kerry Simmons wrote to the Ministers of Treasury, Canadian Heritage and Justice, the three portfolios that play the biggest role in the implementation of the Act, calling on them to bring the legislation – initially adopted in 1969 and consolidated in 1988 – into the 21st century.

While the reality of official languages in the country is continually changing, the Act is frozen in time, she said.

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The climate

A major setback for climate change litigation

By Yves Faguy January 8, 2018 8 January 2018

A major setback for climate change litigation

 

An Oslo court ruled last week that Norway's government can allow further oil exploration in the Arctic. The lawsuit, brought by Greenpeace and the Nature and Youth Group argued that Norway’s decision to award new drilling licenses to oil companies in 2016, only weeks prior to ratifying the Paris Climate Agreement, was in violation of the country’s Constitution which includes a guarantee to a healthy environment.

Why it matters

The ruling is major defeat for environmental groups who saw the lawsuit as a test case for the “keep-it-in-the-ground movement” focused on ending the extraction of remaining fossil fuels in the world to tackle climate change.  There has been a growing international trend towards more litigation around climate change, but the courts are still reluctant to step in to judge the merit of government policies.  Bloomberg quotes the Oslo court ruling:

“Some issues that the environmental organizations have raised fall outside what was tried by the court,” according to the ruling. “Whether Norway is doing enough for the environment and climate, and if it was sensible to open fields so far north and east” are questions “better assessed through political processes,” the court said.

The court found that Norway is responsible only for “greenhouse gas emissions within its borders, not those causes by burning exported oil and gas.” Adding insult to injury, the Oslo court ordered the two environmental groups to pay the government’s legal costs. There is no word yet on whether they will appeal.

 

 

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Criminal law

Gladue's unintended consequences at bail

By Jillian Rogin January 5, 2018 5 January 2018

Gladue's unintended consequences at bail

The over-representation of Aboriginal persons in remand custody in Canada is an ongoing cause for concern. Representing about 3 per cent of the general population, statistics indicate that Aboriginal individuals make up over 20 per cent of those in remand custody (or pre-trial detention) in Canada. Some measures have been adopted to mitigate the risks of Aboriginal individuals being unfairly treated by the criminal justice system – chief among them the principles outlined in R v Gladue and reiterated in R v Ipeelee – but author Jillian Rogin draws a portrait of persisting systemic failure.

In her recent Canadian Bar Review article, Rogin writes that Gladue sentencing principles are even in some cases -- in bail matters particularly -- making matters worse:

A review of Gladue bail jurisprudence reveals the ways in which Aboriginal people in Canada are improperly being sentenced via bail proceedings. The courts have failed to identify the relevant legal principles that should animate bail. Instead, judicial interim release is being utilized as a diagnostic tool and Aboriginal people are inappropriately being subjected to “treatment” via the over-use of sureties and conditions of release. The relevant systemic factors are not properly considered and should play a far greater role in the assessment of risk and the interpretation of Gladue.

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Libel law

Crookes revisited: the law of libel around internet links

By Ryan Van Horne January 5, 2018 5 January 2018

Crookes revisited: the law of libel around internet links

 

Does publishing a hyperlink amount to libel? Not unless the person publishing it repeats the original defamatory content.

That’s what Halifax-based Frank Magazine has been arguing, relying on the 2011 Supreme Court of Canada ruling in Crookes v. Newton, which found that hyperlinks are content neutral. The satire publication asked a Halifax court to dismiss two of the four counts it faces of violating a publication ban in a child-protection case.

The two charges stem from tweets in February, April and May of this year by the magazine of links to an article it published in January 2015. Because violating a publication ban under Nova Scotia's Children and Family Services Act is a summary offence, and the six-month time limit has expired, the charge for publishing the January 2015 article should be dismissed, argues lawyer David Hutt of Burchells LLP, a Halifax-based law firm. Hutt represents Coltsfoot Publishing Ltd., the parent company of Frank Magazine, and Frank's managing editor Andrew Douglas. Hutt also argues that the hyperlinks to that article do not amount to publication and that the count relating to the publication of tweets with hyperlinks to the January 2015 article on Frank's website should also be dismissed.

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Litigation

Settlement Counsel: an innovative strategy for managing commercial litigation files

By Mariane Gravelle January 3, 2018 3 January 2018

Settlement Counsel: an innovative strategy for managing commercial litigation files

 

In her recent Canadian Bar Review article, Michaela Keet discusses the use of Settlement Counsel (SC) in commercial litigation. While this method has known a measure of success, it is still quite unknown in Canada and the U.S. There is also very little academic literature about it.

Keet defines Settlement Counsel as “a negotiation structure that separates litigation and settlement roles – allowing for the simultaneous advancement of litigation and negotiation on parallel tracks, by different lawyers”:

Since most cases settle before trial, how they settle must be examined closely to explain the pockets of sudden and passionate interest in SC. Proponents of the model point out that litigation settlements typically occur after the investment of significant resources in the management of pre-trial litigation, without full and thoughtful exploration of client needs. They argue that SC files settle sooner with lower legal and internal business costs, even in consideration of SC fees. Proponents of the model also claim that the quality of SC outcomes are superior to litigation outcomes. Practitioners employ techniques to get earlier, relationship-oriented settlements in a commercial world where relationships are increasingly valued.

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