The Power of Perspectives

The Canadian Bar Association
The Practice

Sitting on a board can improve your professional footing

By Carolynne Burkholder-James July 6, 2017 6 July 2017

Sitting on a board can improve your professional footing

 

Volunteering as a board member can benefit both your community and your law career as well, according to Matthew Reid.

Reid is a personal injury lawyer with Cohen Highley LLP in London, Ont., who has extensive experience as a board member. Currently, he is a school trustee and chair of the Thames Valley District School Board and president and chair of the board at HOBY Canada, a youth leadership program. Reid has also been a board member with Regional HIV/AIDS Connection and several other organizations.

Reid says he encourages young lawyers to volunteer their services as a board member. 

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North Korea and the legality of nuclear tests

By Mariane Gravelle July 5, 2017 5 July 2017

North Korea and the legality of nuclear tests

A large number of sanctions imposed on their nation as a result of previous missile-launch tests does not seem to have deterred the North Korean government from engaging in yet another test of that nature. On July 4th, Pyongyang launched what they claimed to be an intercontinental ballistic missile (ICBM) into the waters bordering Japan. Especially concerning is the fact this latest missile – if fired on the right trajectory – could potentially reach Alaska.

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Administrative law

Paul Daly on getting lost in description

By Yves Faguy July 4, 2017 4 July 2017

Paul Daly on getting lost in description

 

In the latest volume of the Canadian Bar Review, which examines the legacy of the former Supreme Court Justice Louis LeBel, Paul Daly explores the limits of language in administrative law, and LeBel’s role in clarifying our understanding of judicial review.  CBA National sat down with the senior lecturer in public law at the University of Cambridge to ask him about why descriptive language in law can be more of burden than help.

CBA National: Why is administrative law such a difficult subject?

Paul Daly: Administrative law is tricky because it is a body of general principles that exist in the abstract and then they have to be applied to different substantive areas of law, which is a challenge. So, you have to apply it to employment law, environmental law, energy law, municipal law, immigration law, a whole host of areas which they themselves have very detailed rules and regulations. Already that gives you a degree of complexity. Then add to this the fact that principles of administrative law are quite recent and the area has undergone a radical reformulation in the last 50 years. And in Canada it's even more complicated because in trying to work through the general principles of administrative law, the Supreme Court of Canada made numerous U-turns and has created a body of case law that is difficult to navigate.

N: So what do you mean when you say that administrative jurists must appreciate the limits of language in reaching more accurate decisions?

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Corporate counsel

Capturing Your “Innerpreneur”

By Jim Middlemiss July 4, 2017 4 July 2017

Capturing Your “Innerpreneur”

 

Sébastien Guénette had a crash course on how to think like an entrepreneur, and the Director, Legal at the Canadian operations of Japan Tobacco International (JTI) says he’s a better in-house lawyer because of it.

“Being in the shoes of an entrepreneur for a week and taking your legal hat off was a very good exercise,” Guénette says of a course that his company’s legal department put on in Madrid for 80 of its senior in-house lawyers two years ago.

One of the big benefits for him was learning to “take the risk to make decisions, even if the data is not entirely complete, which business people often do, but it is very counter-intuitive for a lawyer to do that.”

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CBA influence

Immigration Detention Framework: Let the children go

By Kim Covert June 30, 2017 30 June 2017

 

The CBA response to consultations on the Canadian Border Services Agency’s new National Immigration Detention Framework touches on four concerns – particularly the question of detaining children.

Whatever the status of the child, whether he or she is an unaccompanied minor, or a Canadian citizen with parents being held in detention, the overriding rule of thumb should always be to keep the best interests of the child in the forefront. And it is never in the best interests of a child to be detained, say the CBA National Immigration Section and the Sexual Orientation and Gender Identity Community Forum in their submission.

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Corporate counsel

The Future is Now: Innovations in the Legal Industry

By Pablo Fuchs June 30, 2017 30 June 2017

The Future is Now: Innovations in the Legal Industry

 

As organizations demand more from their legal teams, in-house counsel can look to innovative technologies to help them become more productive. Many of these tools focus on removing menial, time-consuming work so counsel can focus on higher-value judgment tasks and spend resources more effectively.

Here is a closer look at some up-and-coming Canadian companies that offer unique, productivity enhancing tools for in-house counsel.

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Law and the internet

SCC rules against U.S. tech giants: “The internet has no borders”

By Justin Ling June 29, 2017 29 June 2017

SCC rules against U.S. tech giants: “The internet has no borders”

 

It’s been a bad week for two internet giants.

Both Facebook and Google lost landmark decisions at the Supreme Court of Canada over the last few days, with the top court ruling against Google in a case involving de-indexing websites, and against Facebook in a case about forum selection.

The pair of rulings signals a move to establish that just because these tech giants are headquartered in California — or elsewhere — it doesn’t mean they can wiggle out from under Canadian legal jurisdiction.

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CBA Influence

Trans inmates: It’s all about respect

By Kim Covert June 29, 2017 29 June 2017

 

Historically, trans inmates are penalized not only for their criminal behaviour but, because Canadian jails and prisons – and the policies that govern them – weren’t designed to accommodate non-binary prisoners, they’re also punished for asserting a gender other than that assigned at birth.

Correctional Service Canada is reviewing its policies relating to gender identity and expression and the CBA’s Sexual Orientation and Gender Identity Community Forum, along with the CBA Criminal Justice Section, made a submission in June to respond to CSC’s proposed policy amendments.

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National security

Super agency proposed to oversee national security

By Justin Ling June 29, 2017 29 June 2017


Canada’s national security regime will soon see the largest overhaul in its review, management, and approval structure since the McDonald Commission recommended splitting the RCMP’s intelligence branch off into a new agency: CSIS.

The Trudeau government legislation, C-59, addresses a number of facets in Canada’s national security infrastructure — National wrote about its plans for CSIS’s disruption powers last week — but the changes to how Canada’s national security framework is managed and monitored are almost certainly the most far-reaching.

Under the proposed legislation, Canada’s national security agencies will be under the purview of the National Security and Intelligence Review Agency, or NSIRA. That body essentially looks like the ‘Super SIRC,’ the proposed agency that would expand the scope of the CSIS review body to include a variety of other agencies.

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Corporate counsel

Lawyers telling stories

By Mark Weber June 27, 2017 27 June 2017

Lawyers telling stories

You are always competing for attention when you speak. Whether you are trying to get buy-in for a new legal process, have your say in strategic business decisions or get your child to put on her shoes in the morning, you need the other person to listen—and care about—what you are saying. And the simple truth is that all listeners have a lot of other things on their minds, and many of those things feel more interesting and pressing to them than you.

One of the most effective tools of engagement is one lawyers too seldom employ: good stories. Jonathan Gottschall calls humans the “storytelling animal,” and with good reason. We use story to transmit information in a memorable way and to create social bonds.

The problem? Lawyers do not generally like to think of themselves as storytellers, as if that somehow makes them manipulators or diminishes their importance. However, think of the most memorable presenters you have seen or the best conversations you have had. Such moments almost invariably involve a story. We are wired to listen to, absorb, and, to at least some degree, retain narrative.

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CBA Influence

Building a foundation for data-collection under MAID

By Kim Covert June 27, 2017 27 June 2017


Too onerous, too cumbersome, and possibly not quite respectful enough of privacy, are some of the responses from the CBA’s End of Life Working Group to a Health Canada consultation on a monitoring regime for those seeking a doctor’s assistance to end their lives.

The Medical Assistance in Dying Act passed in June 2016 acknowledges the importance of a comprehensive monitoring system to collect and analyze data about the demand for medical assistance in dying, and to monitor trends.

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Arbitration

Supreme Court makes it harder to appeal arbitration awards

By Mark Bourrie June 26, 2017 26 June 2017

Supreme Court makes it harder to appeal arbitration awards


The Supreme Court of Canada has made it even tougher to go to court to overturn decisions made by arbitrators.

It has ruled that the courts, when reviewing an arbitrator’s interpretation of statute, should use the reasonableness standard and tease out questions of law from issues of fact.

In its ruling last week in Teal Cedar Products Ltd v British Columbia, the Supreme Court overturned a British Columbia Court of Appeal decision that had allowed judicial review of an arbitrator’s decision in a dispute between a forestry company and the province. It re-affirmed its 2014 Sattva decision and tightened the standard of review.

By doing so, the court further limited the rights by parties to seek judicial review of arbitration decisions.

Arbitration clauses are increasingly being written into consumer contracts, agreements between large companies, and between governments and private companies. In this case, the parties were governed by arbitration rules written into a piece of provincial legislation, B.C.’s Revitalization Act.

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