The Power of Perspectives

The Canadian Bar Association
Duty to consult

NEB can fulfill duty to consult, but must do so meaningfully

By Yves Faguy July 26, 2017 26 July 2017

NEB can fulfill duty to consult, but must do so meaningfully

 

The top court handed down two major rulings today on the duty to consult Indigenous communities.

In Clyde River (Hamlet) v. Petroleum Geo‑Services Inc., it quashed a National Energy Board granting authorization to conduct offshore seismic testing for oil and gas off Baffin Island, noting, “No one benefits — not project proponents, not Indigenous peoples, and not non-Indigenous members of affected communities — when projects are prematurely approved only to be subjected to litigation.”

The Crown, it held, can rely on the NEB’s process to fulfill its duty to consult, but in this case the regulatory agency failed to conduct deep consultation:

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International law

The challenges of preventing corporate human right abuses abroad

By Erika Schneidereit July 25, 2017 25 July 2017

The challenges of preventing corporate human right abuses abroad


The protection of human rights is one of the core values that Canadians hold dear. But do Canadian laws do enough to prevent human rights abuses committed overseas?

The challenges posed by this question have become increasingly relevant in a world where Canadian companies control vast operations in multiple countries. This issue has also drawn the attention of international bodies, such as the UN Working Group on Business and Human Rights. 

Earlier this summer, the working group visited Canada to examine issues involving Canadian corporations and human rights. Of particular interest was Canada’s extractive industry (mining and oil and gas) – unsurprisingly, given that more than half of the world’s mining companies call Canada home. While the group wrapped up its visit by applauding Canada for its commitment to addressing business-related human rights issues, it also identified a number of lingering concerns in preventing and remedying human rights abuses committed by Canadian companies operating abroad.

So, what’s so complicated about preventing corporate human right violations abroad?

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Trade

Eliminating NAFTA's chapter 19: A dealbreaker?

By Yves Faguy July 25, 2017 25 July 2017

Eliminating NAFTA's chapter 19: A dealbreaker?

 

Robert Fife and Steven Chase report today that Ottawa is insisting that removing Chapter 19 dispute-resolution panels from the NAFTA accord is a deal-breaker and is prepared to walk away from negotiations if the Trump administration keeps pressing its case on the issue.

Robert Wolfe, in a recent Policy Options piece, wonders whether Canada isn’t simply posturing:

It would be hard for Canada to accept absent an alternative, but no new system could be devised quickly. Canada fought hard for this provision, but has used the current rules only three times in the last decade. Is it worth much to Canada? The answer hinges on why its use has declined. If its existence restrains the use of trade protection measures against Canada (which could be why lobbies like the softwood lumber industry want it eliminated), then taking it away would be a bad idea. Alternatively, as cross-border supply chains grow in importance, maybe trade protection measures that are self-defeating are behind the decline. In sectors of homogenous upstream commodity trade, disputes may not be much of a constraint anyway — softwood may end in another long-term managed trade arrangement. In short, the Canadian strategy may be to make the Americans worry that chapter 19 is a landmine, while being prepared to exchange it for something more important, like relief from Buy American rules.

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Trade

NAFTA: data flows back on the trade agenda

By Justin Ling July 21, 2017 21 July 2017

NAFTA: data flows back on the trade agenda

 

It’s like malware that just keeps coming back.

The removal of data localization restrictions is back on the trade agenda, with the backing of U.S. President Donald Trump.

When the White House released a statement of negotiating objectives for NAFTA trade talks with Canada and Mexico, trade experts welcomed the mostly moderate position it staked out: the U.S. Trade Authority suggested that the expansive continental trade deal ought to remain mostly as-is — albeit with some changes to dispute resolution, duty application for online-shopping, and country-of-origin labelling, as well as on a few other fronts.

But one of the priorities touches upon cross-border data flows.

The administration is hoping to “establish rules to ensure that NAFTA countries do not impose measures that restrict crossborder data flows and do not require the use or installation of local computing facilities.”

 

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Tax

Closing tax loopholes for professionals who incorporate

By Mark Bourrie July 19, 2017 19 July 2017

Closing tax loopholes for professionals who incorporate

 

Canada’s finance minister is taking aim at professionals who use personal corporations to avoid income tax.

Mentioning lawyers and medical doctors specifically, Bill Morneau said the federal treasury is missing out on about $500 million per year because of the way professionals are handling their corporations. There has been an eight-fold increase in the number of corporations created in Canada under federal and provincial laws since 1972, Morneau said.

The minister said the government will close loopholes that all corporation owners to dodge taxes three ways:

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Family Law

A “post-gender”, post-truth look at Canadian family law

By Kerri Froc July 18, 2017 18 July 2017

A “post-gender”, post-truth look at Canadian family law


Post-truth – an adjective defined as ‘relating to or denoting circumstances in which objective facts are less influential in shaping public opinion than appeals to emotion and personal belief’ - Oxford English Dictionaries (Word of the Year for 2016)

As a former family law practitioner, I read with interest Omar Ha-Redeye’s column on “self-represented litigants” and the bias they feel in family law courts.  He writes that while family law has changed “in some ways” to reflect social norms (such as same-sex marriage), in others it hasn’t changed “nearly enough.”  The offending areas of law he points to are support laws (which need to reflect “more partners equitably shar[ing] family responsibilities and society moves away from the traditional sole-breadwinner model,”) and child custody (to rid it of “perceived” gender bias and “credence given to false allegations of abuse,” among other things).  Of course, when he is writing about self-represented litigants here, the context makes clear this is a code phrase for men.

The notion that there is gender bias against men in family law matters is not new.  Ha-Redeye notes that “litigants” (presumably fathers’ rights advocates) made this claim before the Special Joint Committee on Child Custody and Access, which reported in December 1998.  However, the committee found no gender bias, only that fathers who testified “perceived” there was bias.  Nevertheless, the committee at times seemed to treat the perception as if it were reality, resulting in a report that that Professor Nicholas Bala calls “not well written,” having a “’pro father’ slant’” and failing to reflect the reality of how judges were adjudicating cases.

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Indigenous law

Sustainable development as a moral obligation tied to aboriginal title

By Supriya Tandan July 17, 2017 17 July 2017

Sustainable development as a moral obligation tied to aboriginal title

 

It would be fitting were the Prime Minister to name an Indigenous person to fill Chief Justice Beverley McLachlin's seat after she steps down in December. 

After all, it was under her tenure that the Supreme Court of Canada took great pains to strengthen indigenous rights, relying in large part on honour and reconciliation as the twin moral obligations that should guide Canada in its stewardship of certain lands. In her court’s later years, it appears to have added a third that could change how we view our collective responsibility in terms of owning land: sustainability.

The Crown draws its power to manage lands via the sovereignty proclamation. However this power is not absolute and in the words of the court, is “burdened” by land that belongs to aboriginal communities.

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The Supreme Court

SCC appointment process: tradition of regional representation respected

By CBA/ABC National July 17, 2017 17 July 2017

SCC appointment process: tradition of regional representation respected

The appointments process is now open to select the next justice of the Supreme Court of Canada who will fill retiring of Chief Justice Beverley McLachlin’s seat.

As was the case in 2016, when Justice Malcolm Rowe was appointed, an independent and non-partisan Advisory Board will be formed to identify candidates suitable for the position.

What’s different this time around is that the appointments process now explicitly recognizes regional convention, meaning that it open only to candidates from British Columbia, Alberta, Saskatchewan, and Manitoba, Northwest Territories, Nunavut, and Yukon. The Chief Justice initially appointed as a Puisne Justice in 1989 from the Supreme Court of British Columbia. Traditionally, two seats are held by Western Canada.  Justice Russell Brown is currently the other member of the top court from the region.

“Honouring regional representation means that our highest court will continue to represent all regions of Canada,” CBA President René Basque said in a statement.

In June, Basque wrote to the government to reiterate the CBA’s request that the government uphold the convention of regional representation as a core element of diversity

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CBA Futures

Legal futures round-up

By Yves Faguy July 14, 2017 14 July 2017

Legal futures round-up

 

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.

To kick things off, here’s an issue law firms are going to have to seriously address: their security weak spots. A recent study reveals that there is a “widespread lack of cybersecurity in law firms" and reports that  two-thirds of the 200 responding law firms had reported some sort of cyber breach. Also worrisome, many don’t have cybersecurity insurance.

That report was released as news hit that global law firm DLA Piper suffered a major cyber attack -- yet another a reminder that law firms are a choice target for hackers.

Some firms are taking the threat seriously. International immigration services firm Fragomen announced it is opening an immigration technology innovation lab in Pittsburgh, to be staffed with 40-50 professional – none of them lawyers. The office is going to be focused on software development and cybersecurity.

On the technology front, Julie Sobowale explores blockchain and what it means for legal professionals.  Here’s a hint: Smart contracts, which explains why AIG is teaming up with IBM “to develop a "smart" insurance policy that uses blockchain to manage complex international coverage.”

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CBA Influence

Working the convention: Regional representation on the SCC, please

By Kim Covert July 13, 2017 13 July 2017

Chief Justice Beverley McLachlin’s announcement in June that she will be retiring at the end of 2017 means the government will soon start the process to fill her seat on the Supreme Court. Once again, the CBA is asking the government make an appointment based on merit, ensuring that the court reflects the full diversity of Canada’s regions, legal systems and population.

McLachlin’s seat on the court is one of the two traditionally held by Western Canada. The jury is out, however, on whether that seat should go to a jurist from British Columbia, which is where the Alberta-born McLachlin was a sitting judge before her appointment to the Supreme Court, or to any of the four provinces west of Ontario.

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Intellectual property

Copyright fees at York: Federal Court rejects fair dealing

By Justin Ling July 13, 2017 13 July 2017

Copyright fees at York: Federal Court rejects fair dealing


A lengthy copyright battle, which a Federal Court judge compared to the chain of events that sparked World War I, between York University and a rights holder consortium has resulted in a blow for the fair dealing exemption.

The decision, says Canadian copyright expert Michael Geist, “moves in precisely the opposite direction with restrictive language that other courts and the Copyright Board have rejected.”

The case goes back to 2010, when the Canadian Copyright Licensing Agency (also known as Access Copyright) proposed to the Copyright Board of Canada that post-secondary institutions be charged $45 per each full-time employee (or equivalent) per year.  That represents a major hike from the previous $3.38 annual fee, topped up with a $0.10 per page royalty, that had applied up to 2010.

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Arbitration

Litigation funding: CETA’s disclosure requirements

By Yves Faguy July 11, 2017 11 July 2017

Litigation funding: CETA’s disclosure requirements

 

There is still resistance in some jurisdictions, such as Ireland, to third-party litigation finance. But the market, globally, continues to make headway, particularly as Hong Kong has now allowed the practice in arbitration and mediation matters.

What sets Hong Kong apart from other jurisdictions, though, is that it has imposed requirements on funded parties to disclose the funding arrangement, as well as the identity of the third-party funder, all with a view to addressing concerns about conflicts of interest between the various parties involved.

In the arbitration context there is currently no explicit requirement for litigants to disclose their funding arrangements in Canada  (though in Ontario a court may force the disclosure of such an arrangement to the opposing party in the class action context).

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