The Power of Perspectives

The Canadian Bar Association
Indigenous law

The Crown’s underlying title to Aboriginal title lands

By Yves Faguy October 3, 2018 3 October 2018

The Crown’s underlying title to Aboriginal title lands

 

Kent McNeil has a fascinating piece, recently published in the Canadian Bar Review, that examines the source of the Crown’s underlying title in Canada, and compares it to other principal settler states colonized by Britain – namely Australia, New Zealand and the United States’ first 13 colonies.  As far as Canada is concerned, he notes that the sources of the Crown’s authority are somewhat murky, particularly outside of Quebec and Acadia, where it got sovereignty by “conquest and cession”:

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Corporate counsel

Why we do what we do (and how to change It)

By Lynne Yryku October 2, 2018 2 October 2018

Why we do what we do (and how to change It)

 

“My legal mind made me think, ‘Did we do everything we could have?’”, says Catherine Chow, VP Legal and General Counsel of Keg Restaurants Ltd., when her company experienced two accidental deaths in a short time frame last year. “I was just so profoundly moved … and as a company we were so profoundly moved.”

Her value system, based on law and order, led her to take on the issue herself. Her initial approach was to make existing rules stronger and create new ones to make staff events even safer (though the accidents were unrelated to the actual events). “Clearly, we need rules to enforce!” she had thought.

“I got the President’s buy-in but I neglected to get HR’s because I thought it was my issue,” she explains. “I didn’t get enough stakeholders in the process, and to be honest, I think I stepped on HR’s toes because what we did was crack down on everything. I have failed initially to see the synergies … and so I had a lot of resistance, not against the policies but against the approach. There was no uptake.”

“At that point, I thought I was going to leave the company. I thought it was a values misalignment,” she adds.

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The practice

When to expand your firm, when to outsource

By James Careless October 2, 2018 2 October 2018

When to expand your firm, when to outsource

 

A growth spurt in your firm’s workload can be a mixed blessing – more work means more revenue, but it can also mean burning out your partners and associates to keep up with it.

 “In my experience, there are four indicators that the firm is faced with the decision either to expand or outsource,” says Kamila Phillip, president of Law Firm Marketing Canada. “The first indicator is you start turning down work due to capacity issues. The second is your staff is overwhelmed by work, which is evident by the overtime hours they are putting in. The third is delays in turning around work for clients and meeting deadlines. And the fourth indicator is that the firm already has plans to grow its business and is looking for the opportunity to do so.”

In this situation there are two obvious options: expand or outsource. But while both can solve the problem, they each come with their own downsides – for example, adding people and infrastructure can end up costing more than it brings in; while outsourcing to a third-party supplier means reduced control over the work.

So what to do?

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Climate law

Ontario’s climate change plan: What now?

By Supriya Tandan October 1, 2018 1 October 2018

Ontario’s climate change plan: What now?

It’s been a difficult year for Ontario residents: forest fires in the North, flooding in the Southwest and recent tornado in the Nation’s capital are the most visible displays of a climate playing havoc with Ontario residents. These events are precisely what climate scientists have been telling us to expect with a warming earth, even if a causal link between a particular weather event and climate change phenomena can never be made.

Previous Liberal governments tried to tackle climate change by introducing legislation to reduce greenhouse gas emissions (The Cap-and Trade Act) and motivate the use, market and adoption of renewable energies (The Green Energy Act).

Then came a new Progressive Conservative government. One of Premier Doug Ford’s first items of business was to repeal his predecessor’s cap-and-trade legislative framework. His government followed that up with plans to repeal of the Green Energy Act, which critics charge was an ill-conceived attempt to grow a renewable energy industrial sector in Ontario. Its repeal also appears to be motivated by the desire for more municipal autonomy, especially in rural communities, where renewable energy projects are often located.

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Transportation

How should regulators approach the consumer risks of cryptocurrency investing?

By Agnese Smith October 1, 2018 1 October 2018

How should regulators approach the consumer risks of cryptocurrency investing?

 

Canadian consumers need to “exercise caution” when engaging with the unregulated world of cryptocurrencies. Policymakers, meanwhile, should step up their efforts at monitoring these new assets, and educating the public about their risks. 

These are the conclusions of Ottawa-based non-profit Public Interest Advocacy Centre, echoing similar warnings from some of the world’s most respected voices, including Nobel prize winners, central bankers, and even comedians.

Cryptocurrencies “are just not ready for prime time yet,” particularly for your average Canadian, said John Lawford, PIAC executive director, in a telephone interview.  “There are just too many weaknesses,” including security breaches, lack of consumer redress, not to mention the colossal waste of energy that the current systems require. In its latest report, Assessing the Emergence of "Alternative" Currencies and Legal Risk: the Consumer's Perspective, PIAC called for the creation of “a working group of key stakeholders to review the risks to consumers.”

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The practice

Turn and face the strange: Don’t be afraid of changes

By Kim Covert September 28, 2018 28 September 2018

Turn and face the strange: Don’t be afraid of changes

 

Stop me if you’ve heard this one before: Lawyers, they say, are averse to change.

OK, so that’s old news. Some of us adapt better to a shifting environment than others, and the lawyer, by personality and by training, is generally slower to embrace change.

But is this rule hard and fast, or are there ways to adapt oneself to the need to adapt?

Wendy Law, Deputy Solicitor for the City of Mississauga, thinks so, suggesting that you adapt to change the same way you get to Carnegie Hall – practice, practice, practice!

 “If the user doesn’t adapt to change, then the change fails,” she said during a session titled “Rise of the Artisan: Critical thinking in a world of machines” at the 2018 CCCA conference in Toronto. “How do you develop a feeling for change? Have a lot of changes. People get used to the fact that it’s not going to be the same anyway, so let’s not resist.”

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CBA influence

Joint Tax Committee’s thoughts on 2018 tax proposals

By Kim Covert September 28, 2018 28 September 2018

 

In July, the government proposed amendments to the Income Tax Act to implement parts of the 2018 federal budget for both personal and business tax.

The Joint Committee on Taxation of the Canadian Bar Association and Chartered Professional Accountants of Canada commented on the proposed amendments in September.

In the 2018 budget the federal government announced its intention to impose a new filing obligation on certain trusts that would require the trusts to report the identity of all trustees, beneficiaries and settlors of the trust, and each person who has the ability to exert control over trustee decisions. Exceptions included lawyers’ general trust accounts.

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Privacy

AggregateIQ: first Canadian company to get notice for a GDPR violation

By Julie Sobowale September 27, 2018 27 September 2018

AggregateIQ: first Canadian company to get notice for a GDPR violation

 

It didn’t take too long for GDPR make a major impact in Canada. AggregateIQ (AIQ), a Victoria-based Canadian digital advertising, web and software firm, is the first company in Canada to receive an enforcement notice under the new European Union General Protection (GDPR) regulations. The United Kingdom Information Commissioner’s Office (the ICO) issued its first extraterritorial enforcement notice under GDPR to AIQ.

The notice requires the company to, “cease processing any personal data of U.S. or E.U. citizens obtained from U.K. political organizations or otherwise for the purposes of data analytics, political campaigning or any other advertising purposes.” This order relates to AIQ’s involvement in the Facebook and Cambridge Analytica scandal, in which Facebook’s user data was used by Cambridge Analytica to help influence the 2016 Brexit referendum. The ICO released its report, “Investigation into the use of data analytics in political campaigns,” in July 2018, stating that AIQ had access to UK voters’ personal data. AIQ denies any involvement with Cambridge Analytica.

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Corporate counsel

A changemaker to watch

By Lynne Yryku September 27, 2018 27 September 2018

A changemaker to watch

 

“It is one of the best areas for lawyers to work in,” says Addison Cameron-Huff in his clear, measured tone when asked about working in an environment where the rules are still being formed. “There's an interesting moment and challenge every single day.”

As President of Decentral Inc., Cameron-Huff is the epitome of agile and adaptable. In this new and emerging world of cryptocurrencies and blockchain, he is one of the select people helping to shape the legal landscape—without textbooks or case law to rely on.

A large part of his role involves “judging where things are headed and preparing the company to deal with them, which in this space is a bigger issue than in most.” He explains, “[The people in government] want to do a good job and they look to industry to know what ‘doing a good job’ means. So my role gets to impact the legislation and regulations in Canada primarily but in the United States a little bit, which is very unique for such a small company.”

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Immigration

Understanding the dangers of genetic testing in immigration

By Gabriel Marrocco and Yann Joly September 27, 2018 27 September 2018

Understanding the dangers of genetic testing in immigration

Genetic testing is used increasingly in areas that extend well beyond the field of medicine. One of them is immigration. Since the 1990s, Canadian immigration agents have used genetic test results from family reunification applicants to confirm their biological relationships. There have also been recent media reports that Canada Border Services Agency (CBSA) officers have used private ancestry genetic testing companies to find additional information pertaining to the ancestry of detained individuals scheduled for deportation. Based on reports from other countries, genetic tests could also be used to determine the precise age of immigrants, or establish if someone is affected by, or more likely to develop, specific diseases that would cause excessive demand on a country’s health services.

What is concerning is that there are few legal constraints on genetic testing in immigration despite the potential for misuse and the associated ethical, legal and social issues.

The regulations and laws applicable to Immigration, Refugees and Citizenship Canada (IRCC) and the CBSA do not specifically address the processing of genetic information. In IRCC’s sector of activity, immigration officers fall back on default provisions on the examination process of foreign nationals, which state that applicants must provide “any relevant information that immigration officers reasonably require”, to guide their use of genetic testing. The only clear limit is found in IRCC’s administrative guidelines for family reunification and citizenship applications. It limits such tests to measures of ‘last resort’. This sort of broad framework leaves too much room for error and arbitrary decision-making, and is not conducive to responsible or efficient use of genetic testing.

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CBA Futures

Legal Futures round-up

By Yves Faguy September 26, 2018 26 September 2018

Legal Futures round-up

 

Raising capital is the main storyline in this latest round-up.

Earlier this month, Toronto-based Kira Systems raised CAD 65 millionD ($50 million US) granting a minority stake to New York City-based Insight Venture Partners. Kira Systems uses AI-powered technology to review and analyze large volumes of contracts. Noting that the company mushroomed from 35 to 115 employees since January 2017, CEO and co-founder Noah Waisberg told Betakit that the company’s “hope is to continue to grow quickly and we’d like to do so more gracefully.”

Not to be outdone, Francisco-based Atrium, a tech company that delivers legal services, has raised $65 million US. Atrium is a full-service corporate law firm that relies on technology to build automated legal tools, while lawyers focus on higher-end work. Atrium’s founder Justin Kan also announced that his company was acquiring Tetra, which uses artificial intelligence to take automatic notes on phone calls.

Rocket Lawyer is partnering with ConsenSys, the world’s leading Ethereum blockchain technology company, and its startup, OpenLaw, to launch Rocket Wallet, a secure legal contract payments tool.

Meanwhile, consumer legal platform LegalZoom is partnering with Clause, a New York-based provider of smart legal contracting technology, to offer smart contract services to the general public and small businesses. In case you missed it, LegalZoom announced in July $500 million US Investment, which put the company at a $2-billion valuation.

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CBA influence

Omnibus Bill C-75 attracts wide-ranging response from CBA

By Kim Covert September 25, 2018 25 September 2018

 

As is perhaps fitting for omnibus legislation, the CBA Criminal Justice Section’s response to Bill C-75 ranges from “Absolutely!” to “Absolutely not!” and hits “yes,” “no,” and “maybe, if” a number of times in between.

The bill, which represents the federal government’s response to R v Jordan, deals with court delays (as well as reforms unrelated to court delays, such as intimate partner violence), and includes proposals which would “exacerbate, rather than alleviate, court delays, while simultaneously sacrificing important procedural protections.”

Tony Paisana and Kathryn Pentz appeared before the Standing Committee on Justice and Human Rights on Sept. 19 in support of the CBA submission.

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