The Power of Perspectives

The Canadian Bar Association
Corporate law

The law of corporate responsibility must reflect the new corporate reality

By Alexander Gay April 20, 2017 20 April 2017

The law of corporate responsibility must reflect the new corporate reality

 

The last few months have seen a great deal of activity before the courts on the issue of corporate responsibility. Plaintiffs are struggling to find different legal avenues to attribute legal responsibility between related companies. Two recent cases that have dealt with this issue are Yaiguaje v. Chevron Corporation and Garcia v. Tahoe Resources Inc. The former involves the piercing of the corporate veil, and the latter, the attribution of liability from a subsidiary to a parent company under tort law.

These cases are anchored on legal theories that are not responsive to a new modern corporate reality, where related companies act in concert as a group of companies, yet are allowed to enjoy limited liability. The challenge for the courts will be to find a legal theory that allows companies to act as legally distinct entities, and yet be accountable for the actions of related companies operating within a group of companies in certain circumstances. 

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Criminal justice

Canada's Criminal Code needs a "different perspective"

By Yves Faguy April 19, 2017 19 April 2017

 

Lisa Silver has an interesting post up with some ideas on modernizing the Criminal Code.  She welcomes the repeal of invalid “zombie” provisions that the government is looking to remove, but is less impressed with recently proposed amendments to the impaired driving offences – “Charter unfriendly”, in her view – that are part of the government’s move to legalize pot by next year. She laments that the government is taking a piecemeal approach to the Code’s modernization and makes a pitch for a grander makeover:

What needs to be done instead of modernization for the sake of modernizing is a thoughtful and deliberate consideration of the whole of the Code. What needs to be done is a rethinking of our criminal law not as a jumble of sections prohibited conduct but as a unified reflection of societal values. This includes all of what the criminal law stands for such as the integrity of the administration of justice itself.  This requires, as suggested by the Supreme Court of Canada in Jordan, a cultural change. Not just a “new look” but a different perspective. To do this, instead of taking a page from the Code, let’s learn from our case law and use the principled or contextual approach to change. Real change is only possible if we design laws holistically mindful of the law as a mere part of the larger social fabric. Laws can act as visual markers, creating and defining social space in a community. Successful laws will therefore integrate with society, be flexible to societal needs and frame societal space. The Criminal Code must therefore be considered as part of the social landscape and be created as a marker of who we are, not as a headstone marking the past. The federal government has an opportunity to do this, let’s hope that in the next step to rethinking the Criminal Code, they will fulfill their promise and do just that.

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CBA influence

Enriching Canadians’ access to justice through language

By Kim Covert April 19, 2017 19 April 2017


Nearly 49 years after then-prime minister Pierre Trudeau introduced the Official Languages Act in the House of Commons, and 48 years since it became law, the federal government is preparing to develop another action plan on official languages.

The CBA has gone on record as strongly encouraging the government to include improved access to justice in both official languages as part of its calculations.

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Corporate counsel

Strategic thinking for in-house counsel

By Mariane Gravelle April 19, 2017 19 April 2017

Strategic thinking for in-house counsel

 

From law school to professional development, there’s no shortage of ways to teach a lawyer about the practice of law. And as the profession changes, there’s always new skills to learn. Today, the ability to think and work strategically is increasingly important – and the Canadian Corporate Counsel Association has created a program to deliver that training to the profession.

The CCCA’s Business Leadership Program for In-House Counsel (BLPIHC), taught in collaboration with the University of Toronto’s Rotman School of Management faculty covers useful skills such as communication within organizations, corporate and organizational dynamics and management and leadership.

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The profession

The fight over mandatory CPD: A waste of judicial resources?

By Yves Faguy April 18, 2017 18 April 2017

 

Omar Ha-Redeye struggles to understand why anyone would take on mandatory CPD imposed by his law society as something worthy of a challenge all the way to the Supreme Court of Canada (in Green v Law Society of Manitoba, the top court ruled that law societies can suspend lawyers for not completing their mandatory credits)

Aside from the fact that he was being compelled to do it, I'm not exactly sure what the lawyer was objecting to with mandatory CPD. Granted, many lawyers simply complete it to check off a box. But many more actually benefit from CPD, gaining useful insight into strategy and techniques, obtaining copies of checklists and precedents, or learning about new and emerging areas of law.

Jim Middlemiss thinks he’s missing the broader point:

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Indigenous law

How extending personhood to Canada’s rivers could help reconciliation

By Supriya Tandan April 18, 2017 18 April 2017

How extending personhood to Canada’s rivers could help reconciliation


In March, governments in India and New Zealand independently extended personhood rights to rivers, making them the first jurisdictions in the world to do so. Is it possible that Canada could follow suit? Likely not in the foreseeable future.  Not that it’s impossible.  The Canada Business Corporations Act grants corporations the rights and privileges of a natural person.  But we have yet to have a serious debate in this country as to whether these rights should be extended to components of the environment, such as rivers and forests, as there is little political will among federal and provincial leaders. 

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Constitution 150

Religious freedoms: How will Canada relate to its minority communities

By Yves Faguy April 18, 2017 18 April 2017

Religious freedoms: How will Canada relate to its minority communities


As we celebrate the 35th anniversary of the Canadian Charter of Rights and Freedoms and Canada's 150th anniversary of Confederation, CBA National is featuring opinions by leading constitutional scholars to examine the possibilities and challenges for constitutional rights and freedoms over the next 10-15 years, the theme of the University of Ottawa’s Public Law Group’ recent conference, The Charter and Emerging Issues in Constitutional Rights and Freedoms: From 1982 to 2032. For this instalment we caught up with Howard Kislowicz, an assistant professor at UNB Fredericton Faculty of Law, who shares his views on where litigation of religious freedoms may be headed in the coming years.

CBA National: Why are religious freedoms so difficult to balance against other rights recognized under the Charter?

Howard Kislowicz:  Well the main challenge is that the Supreme Court of Canada has said that there’s no hierarchy of rights in the Charter. So there’s no presumption that when an equality right comes into conflict with a religious freedom right that one or the other will win.  The lawyers advising clients can’t give necessarily too sound a prediction just based on the nature of the right. Like all constitutional analysis now, context is everything.

N: So where do the tensions lie within religious rights themselves?

HK: First, you have to read the Charter guarantee in conjunction with other mentions or constitutional protections of religious rights in the constitution. The most obvious one is in the 1867 Constitution Act which gave protection to minority religious communities in terms of having their schooling rights protected. What it generally meant was that in Quebec, Protestant schools would get constitutional protection in most of the province, and then in the other provinces, Catholic schools would get protection. So this idea that Canada is Catholic and Protestant in its constituent parts, is in tension with the more universalistic, more non-denominational guarantees of religious freedom, which are supposed to apply to everybody, regardless of whether they’re one of those two founding groups.

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CBA influence

Where is MAID working? Hard to say

By Kim Covert April 13, 2017 13 April 2017

Where is MAID working? Hard to say

 

As of mid-December 2016, reports say about 745 terminally ill people had taken advantage of medical assistance in dying, which became the law when Bill C-14 received royal assent six months earlier.

That this figure is based on information volunteered by – and not required of – the provinces, and not on hard, readily available data is an issue behind the CBA End of Life Working Group’s  letter to Health Minister Jane Philpott in March asking that the government get moving on the “monitoring system to collect and analyze data on the provision of medical assistance in dying” which it has itself identified as a “critical component” of the new regime and as “essential to foster transparency and public trust in the system.” 

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Criminal law

The system will adapt to Jordan

By Justin Ling April 12, 2017 12 April 2017

The system will adapt to Jordan

 

Ever since the Supreme Court put a hard cap on trial delays, and the subsequent slew of stays of proceedings in a variety of high-profile cases, there’s been a spirited debate over where to point the finger: At the top court for fumbling the file? At Ottawa, for its lackadaisical response? Or at the Crown, for failing to prioritize serious offences?

The finger pointing has correlated with a rise in attention over the impact of R. v. Jordan, the case that led the supreme justices to shoulder the prosecution with an obligation to conclude the trial within 18 months, 30 for serious offences, barring certain circumstances.

A high-profile case in Montreal is the most recent one to shine the light, where the prosecution of a man accused of brutally murdering his wife was stayed because it passed the 30 month ceiling — a delay caused largely by the prosecution’s push to upgrade second-degree charges to first-degree, contended the accused’s counsel, Joseph La Leggia.

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CBA Futures

Legal futures round-up: April 12, 2017

By Brandon Hastings April 12, 2017 12 April 2017

Legal futures round-up: April 12, 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.

First, a glance at what’s happening across the pond. Five years after obtaining its ABS licence, among the first in England, and a difficult start, Co-operative Legal Services is now making real profits.

Signalling a possible trend toward outsourcing in-house legal services, PwC has recently snapped up half of GE’s tax department – including 600 of its lawyers -- as part of a five-year deal to provide tax services to the conglomerate.

Also supporting the trend, international law firm Pinsent Masons has taken a 20 per cent stake in New Law start-up Yuzu.

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Anti-corruption

Helping companies steer clear of corruption

By Michael Dempster April 11, 2017 11 April 2017

Helping companies steer clear of corruption


Alexandra Wrage receives more than a few calls from nervous CEOs these days.

They’re worried about dinner invitations to foreign officials. They’ve budgeted $200 for a meal—but when a large entourage arrives and orders expensive wines, the bill climbs to $1,000 or more. They want to know: Are we guilty of corruption? Bribery?

These dinner dates aren’t like handing over briefcases filled with money. But it’s an issue, Wrage says, that will keep executives up at night worrying about the consequences of possible wrongdoing.

How times have changed since November 2001, when Wrage founded TRACE International Inc. with the goal of making it easier and less expensive for companies to avoid corruption.

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CBA influence

CBA welcomes diversity measures in Bill C-25

By Kim Covert April 11, 2017 11 April 2017


Changes to the Canada Business Corporations Act designed to make certain enterprises more accountable for diversity in corporate leadership get a thumbs-up from a number of CBA groups.

The Canadian Corporate Counsel Association, the Women Lawyers Forum, the Business, Charities and Not-for-Profit and Competition sections and the Equality Committee collaborated on a submission responding to Bill C-25, which proposes amendments to the Canada Business Corporations Act, the Canada Cooperatives Act, the Canada Not-for-Profit Corporations Act and the Competition Act.

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