The Power of Perspectives

The Canadian Bar Association
CBA influence

Repository for unclaimed pension entitlements a good idea

By Kim Covert October 31, 2017 31 October 2017

 

If you have a sneaking feeling that you forgot to close out a bank account a long time ago, maybe in a province where you used to live, the Bank of Canada’s unclaimed balances registry can help you either set your mind at rest or set you on your way to reclaiming your cash.

The Bank of Canada takes over accounts that have been inactive for 10 years. If there’s less than $1,000 in the account, it holds the money for 30 years, and if there’s more than $1,000, it will hold on to it for 100 years.

The CBA Pension and Benefits Law Section thinks it would be a good idea if the bank did the same thing for unclaimed pension monies.

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Wellness

Recovery from addiction and reckoning with our common humanity

By Karen Dyck October 30, 2017 30 October 2017

Recovery from addiction and reckoning with our common humanity

 

Michael Bryant is an Ontario lawyer and former Attorney General for Ontario, whose story came to the attention of the broader public when he was charged in 2009 in relation to the death of Darcy Allen Sheppard. Those charges were ultimately withdrawn by the Crown in 2010 and two years later, Bryant released his memoir 28 Seconds: A true story of addiction, tragedy and hope, describing not only the events surrounding the death of Darcy Sheppard but also his struggle with alcoholism and path to recovery in the years before and after that life-altering experience.

 

Bryant spoke in Winnipeg last weekend as part of the CBA’s annual Wellness Workshop on the theme of Addictions, Recovery, Reckonings.  Addressing the preponderance of addiction among members of the legal profession, Bryant asked a variation of the classic nurture versus nature question: 

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Technology

The use of predictive coding in Canada

By Alexander Gay October 30, 2017 30 October 2017

The use of predictive coding in Canada

 

The last few decades have seen an explosion of electronic information which counsel must manage to meet production obligations under the Rules of Civil Procedure.  These obligations remain intense and costly.  Technology can help to lessen the burden, such as keyword searches.  Perhaps the most promising tool to help us tame the electronic information beast is “technology-assisted review,” also called predictive coding.  However, to reach its full potential will require wider acceptance of this review method by counsel and the courts.

Predictive coding is a method where software analyses documents and ranks them for relevance.  Typically, parties agree on a protocol or a methodology in advance.  A representative sample of potentially relevant documents is then drawn from the database.  We call these “seed documents”.   A lawyer will review the initial sample, then rate its relevance to "train" the software to review the whole production.  There is then further statistical sampling to ensure that the exercise is fully responsive.  Once it reaches an acceptable level of accuracy, the software then categorizes all the documents for the parties, without the parties having to manually review any more documents.  

While it all sounds complicated, it is not. And predictive coding has a number of important advantages. It costs a fraction of what it would to review documents manually.  It is faster and more accurate than traditional document review. 

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CBA Influence

Harmonize pension plan regulations for efficiency, says CBA Pension Section

By Kim Covert October 30, 2017 30 October 2017

 

The Pension and Benefits Law Section called once again for a harmonized pension regulatory system in its October comment on the Office of the Superintendent of Financial Institution’s revised draft derivatives guideline for federally regulated pension plans.

Derivatives include an assortment of financial or commodity contracts, including forwards, futures, swaps and options. Used prudently, derivatives can be used by pension plan administrators to implement risk management strategies that can reduce risks associated with a range of financial variables like exchange rates, interest rates, market indices and commodity prices.

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CBA influence

Modernizing air transportation: Tariffs, complaints and the definition of Canadian

By Kim Covert October 27, 2017 27 October 2017

 

It’s probably never a bad thing when a government decides to modernize its laws and regulations. The Canadian Transportation Agency announced last year its intent to do just that – bring regulations that haven’t changed in 25 years or more in line with the current reality.

To that end, last December the CTA released its Discussion Paper on Regulatory Modernization for Air Transportation. The Air and Space Law Section has made its comments on Phase II of the paper, focusing on modernizing the Air Transportation Regulations with a view to streamlining existing tariff and application requirements, and enhancing the certainty of legal obligations imposed on carriers.

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CBA Influence

Once more unto the breach regulations

By Kim Covert October 26, 2017 26 October 2017

The news of a data security breach can send a chill through your bones. Anyone who’s ever shared sensitive information online is vulnerable, and these days that’s more and more of us – think of the three billion people affected by the breach at Yahoo! this summer.

The federal government is drafting regulations under PIPEDA on how and when to notify people whose information may have been caught up in a breach. They published those draft regulations in the Canada Gazette in September.

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CBA influence

Billed-basis accounting and access to justice: CBA submission

By Kim Covert October 25, 2017 25 October 2017

 

When the Finance Department released draft legislation in September to limit the use of billed-basis accounting, the CBA was happy to see that the government had acted to address one of the Association’s major concerns with the changes.

When the government announced as part of the 2017 budget that it planned to change billed-basis accounting and the way work in progress is taxed, the CBA said the proposed two-year implementation was far too short, given the amounts of WIP that may be subject to an unanticipated and accelerated tax consequence. The draft legislation will change that implementation period to five years.

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Trade

Is the TPP coming back from the dead?

By Justin Ling October 24, 2017 24 October 2017

Is the TPP coming back from the dead?

 

When we last checked in with the Trans-Pacific Partnership, it was a deal wounded but not dead.

After the United States withdrew from the controversial agreement, trade watchers anticipated the remaining 11 signatories would simply let the deal fall away. It was assumed that substantial changes to the text would be required, and even re-ratification for the two signatories (Japan and New Zealand) who have already given their formal consent to the deal.

And yet, the deal limped on. New rounds of negotiations were held. Governments have voiced voice tepid optimism that a deal could still be reached with those remaining.

Where are we at now? Just as things appeared to look up for the beleaguered deal, it faced new hurdles. While TPP-boosting Shinzo Abe (pictured above) easily won re-election in Japan this past weekend, his New Zealand counterpart was unceremoniously dumped after failing to secure a majority in September’s elections. New Zealand First, a populist party, threw its support behind the country’s Labour Party and now sits as a junior coalition member in an avowedly trade-skeptic government, which also includes the Green Party.

New Zealand First reports in its official policy book that they intend to “oppose investor-state dispute settlement (ISDS) provisions in bilateral and multilateral agreements and by extension the Trans Pacific Partnership-11, which offers little for our exporters.

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Opinion

I am a white settler

By Caitlin Urquhart October 24, 2017 24 October 2017

 

Recently a presenter introducing me stumbled over these words. I still feel awkward saying them. These words can make everyone in the room tense, on edge.

I am a white settler. Not my ancestors, not my history, me. I live here on traditional unceded, unsurrendered Beothuk and Mi’kmaq territory. I am a citizen of this colonial government that through current racist and discriminatory practices allows Indigenous peoples to suffer under boil water advisories, abysmal housing conditions, unacceptably high rates of children in care and school drop out. I have allowed this current government to continue to ignore the orders of the Canadian Human Rights Tribunal to end the discriminatory chronic underfunding of Indigenous children in care. And I am a part of the justice system that allows Indigenous women, girls and two-spirit people to go missing and murdered and actively criminalizes Indigenous peoples making them the most overrepresented group in our prisons.

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The profession

LSUC's diversity statement: Unconstitutional?

By Yves Faguy October 23, 2017 23 October 2017

LSUC's diversity statement: Unconstitutional?

 

The soon-to-be-renamed Law Society of Upper Canada has caused significant controversy in the legal profession over its new requirement that licensees abide by a statement of principles promoting equality, diversity and inclusion. The requirement is part of a broader effort on the part of the law society to remove barriers encountered by racialized licensees, as proposed by a working group whose recommendations were adopted late last year.

Why the fuss? Critics say that requiring lawyers to adopt a statement on diversity and inclusion violates freedom of expression, as protected under the Canadian Charter.  The main objection here is that it amounts to forcing them to express opinions they may or may not share – very different, according to Bruce Pardy of Queen’s than having to comply with a law all the while having the right to disagree with it: “The Supreme Court of Canada has said that forcing someone to express opinions that they do not have “is totalitarian and as such alien to the tradition of free nations like Canada, even for the repression of the most serious crimes,” he writes.  What’s more, writes LĂ©onid Sirota, oaths like these are questionable from a constitutional point of view, and the legal profession should show some backbone by refusing to comply with orthodoxy imposed on it from above. Defenders of the requirement — Adam Dodek, among them — respond that these objections are a stretch too far, particularly as the law society is merely trying to promote Charter values and therefore the statement amounts to “nothing more than a positive affirmation.” To Jennifer Quito, the statement of principles “directs action, not belief” and merely upholds obligations not to discriminate already covered under Ontario’s professional conduct rules.  Even if there is a violation of freedom of expression, it is justified, she writes: “Requiring lawyers to confirm their human rights obligations is not deleterious, and in any event, it would be far outweighed by the salutary effects.”

So far, freedom of expression and thought appears to be alive and well in the legal profession.

 

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CBA Influence

Privacy at the border: Is a smartphone more like a letter or a briefcase?

By Kim Covert October 19, 2017 19 October 2017


The post-9/11 emphasis on the need for security has exacerbated the difficulty of balancing the individual right of privacy with the state’s right to know, especially at border crossings. And more and more the fulcrum those two balance upon is the personal electronic device, be it a laptop, a tablet or a smartphone.

The credit card used to be the thing we wouldn’t leave home without, these days it’s our electronic devices, particularly smartphones. They have become indispensable when travelling, especially now that travel providers have made tickets and boarding passes available electronically.

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Immigration

The Supreme Court rules on the meaning of "serious criminality"

By Yves Faguy October 19, 2017 19 October 2017

The Supreme Court rules on the meaning of "serious criminality"

 

The Supreme Court of Canada has ruled, in a unanimous decision, that a conditional sentence for a marijuana grow-up offence cannot justify the deportation of a foreign national.

What was at issue:  The top court had to decide whether a conditional sentence consists of a “term of imprisonment” as understood under the Immigration and Refugee Protection Act, and whether the appellant should be removed from Canada for serious criminality.  Under s. 36(1) of the IRPA, a permanent resident or a foreign national can be found inadmissible to Canada on grounds of “serious criminality.” That includes being convicted in Canada of a federal offence punishable by a maximum term of imprisonment of 10 years or more.  The appellant in this case was a Vietnamese citizen and permanent resident in Canada since 1989. In 2013, he received a 12-month conditional sentence after being convicted of charges related to his involvement in the grow-op. At the time he was charged, the maximum penalty was seven years of imprisonment, just before getting bumped up to 14 years under the Harper government.  In the court’s words:

It is clear from the wording of the provision that whether or not an imposed sentence can establish “serious criminality” depends on its length. Length is the gauge. It must be “more than six months”. However, the seriousness of criminality punished by a certain length of jail sentence is not the same as the seriousness of criminality punished by an equally long conditional sentence. In other words, length of the sentence alone is not an accurate yardstick with which to measure the seriousness of the criminality of the permanent resident.

The court also ruled that a new maximum sentence cannot be retroactive to the time the offense was committed.

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