The Power of Perspectives

The Canadian Bar Association
Privacy law

‘Tis better to govern data, than to own it

By Kim Covert October 25, 2018 25 October 2018

 

University of Toronto professor Lisa Austin’s problem with the idea that data is the new oil isn’t so much with the idea that data is an asset that can be shared.

“The discussion is who should own the data, but where’s the discussion over whether data is a thing that can be owned?”

The basic characteristic of ownership, she told the CBA’s Privacy and Access Law symposium in Ottawa in October, is the right to control or transfer a thing, and others’ obligation not to interfere with that thing.

But if you start from the idea of ownership, she says, there’s very little in the law that says that control or ownership needs to be exercised reasonably.

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Access to information

Access bill problematic for privilege and judicial independence

By Doug Beazley October 24, 2018 24 October 2018

Access bill problematic for privilege and judicial independence

Few government bills make it to the finish line dragging as much heavy baggage as C-58. The first attempt to update Canada’s government information access and privacy laws in more than three decades is before a Senate committee this week for public submissions.

It’s safe to say its critics outnumber its defenders at this point. Most of the opprobrium has focused on claims that the bill throws up roadblocks for ordinary Canadians trying to access government information, or that it limits the types of information they can see. Former federal Information Commissioner Suzanne Legault called the draft bill a “regression of existing rights.” Her successor, Caroline Maynard, said the bill “fails to deliver” on the federal Liberals’ election commitment to openness and transparency.

The Canadian Bar Association largely agrees — and it has a few quarrels of its own with C-58.

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CBA influence

Proposed workplace harassment regulations put burden on the victim

By Kim Covert October 24, 2018 24 October 2018

 

If the #MeToo movement has done nothing else, it has started a conversation about how difficult it can be for victims of abuse and harassment to come forward. When the abuse and harassment are happening in the workplace, there can be additional obstacles for victims – regardless of gender – to overcome.

The CBA’s Labour and Employment Law Section and the CBA Women Lawyers Forum say the burden for making changes in the workplace should not fall on the victim. They suggest the proposed regulatory framework for Bill C-65, which addresses workplace violence and harassment in federally regulated workplaces, should “explicitly contemplate” that witnesses can also bring a complaint. And they don’t stop there.

“Even in the absence of a formal complaint, the employer may become aware of possible workplace harassment or violence and have an obligation to investigate and address the situation due to potential harm and liability,” the Sections say in their submission to Employment and Social Development Canada (ESDC). “We recommend that a formal complaint not be necessary to trigger the employer’s responsibility to investigate and remedy a situation of workplace harassment or violence.”

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The Supreme Court

Justice Abella's unified theory on constitutional supremacy and reconciliation

By Jennifer Taylor October 22, 2018 22 October 2018

Justice Abella's unified theory on constitutional supremacy and reconciliation

 

In the recent case of Mikisew Cree, the Supreme Court of Canada had a fresh opportunity to engage with constitutional principles affirming Indigenous rights and determine how the duty to consult applies during the legislative process. Instead, the decision seems like a regression for reconciliation.

Mikisew Cree has been well summarized and critiqued elsewhere. With four separate sets of reasons, the court ultimately dismissed the appeal on jurisdictional grounds. But a majority of the court held that federal Ministers do not owe a duty to consult Indigenous groups when developing legislation that may adversely impact their rights.

Only one set of reasons presents a unified theory of how constitutional supremacy and reconciliation affect the law-making process. These are the reasons of Justice Rosalie Abella, with Justice Sheilah Martin concurring. They agreed with the majority on the jurisdictional issue, but disagreed on the duty to consult.

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CBA influence

Bench press: Applying to be a judge a long and wordy process

By Kim Covert October 19, 2018 19 October 2018

 

The new process developed in 2016 to increase transparency in judicial appointments and diversity on the bench brought with it a brand new questionnaire that was more than double the length of the previous one.

The new application form offers more guidance for completing the optional self-identification portion, and offers more information on filling out the employment history section. It also requires more – and more varied – references, has a written skills assessment section in which the applicant has to provide five written judgments (along with a synopsis of each and the reasons why those five were chosen), and five 750-1,000-word essays “on questions related to the role of the judiciary in Canada’s legal system.”

Holy writer’s cramp, Batman!

In a letter to the Justice Minister, the CBA’s Judicial Issues Subcommittee notes that it has received comments that the application was “overwhelming” and “could deter potential candidates from applying.” The Subcommittee says it’s hard to assess the impact of the new application package, given the lack of hard historical data about applicants, but it does acknowledge that the requirements of the application may be commensurate with the position sought.

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Construction

Labour pains : Laying the foundation for P3 project success

By Sandra Goodwin October 18, 2018 18 October 2018

Labour pains : Laying the foundation for P3 project success

 

Since labour is a significant cost for public-private partnership projects, employers need to implement a strategy well before they break ground – and the time required can be lengthy. That was the message coming from a veteran panel of labour and employment lawyers at the Canadian Bar Association’s Construction and Infrastructure Law Conference in Halifax in October.

A proper strategy maps out everything from labour relations and human resource standards to worker acquisition and productivity – months and sometimes years in advance. “You can’t bring in temporary foreign workers overnight,” said moderator Greg Anthony, a lawyer at Cox & Palmer in St. John’s. “How will you ensure you have the workers you need?” He said a labour acquisition plan is one of the most important components of that strategy.

For Walter Thornton, of Matthews Dinsdale & Clark LLP in Toronto, the strategy becomes a risk management plan covering three areas: financing, maintenance, and operations. “Risks can be significant, and sometimes difficult to spot,” he said. “But if you’re talking about risk management, you don’t want to be employing any resources not covered by a collective agreement.”

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With the emergence of settlement counsel, must we update our code of conduct rules?

By Yves Faguy October 17, 2018 17 October 2018

With the emergence of settlement counsel, must we update our code of conduct rules?

 

In a recent Canadian Bar Review article co-authored with Brent Cotter, Michaela Keet returns to her interest in the emerging trend of splitting roles between litigation counsel and settlement counsel, which on negotiation to reach early settlement of disputes. The authors note some challenges, in dividing litigation and settlement tasks, particularly as practitioners in this model try to square their roles with existing professional rules:

SC is an example of commercial adaptation to the challenges of modern practice. Such innovations, however, are hampered by older normative frameworks around “the lawyer’s role”, located inside existing models of professional regulation.

[…]

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Equality rights

Gender-based analysis plus and lessons for Charter vetting

By Yves Faguy October 12, 2018 12 October 2018

Gender-based analysis plus and lessons for Charter vetting

 

Gender-based analysis plus (or GBA+) is the process followed by the federal government (and developed by Status of Women Canada) to analyze the gendered implications of government policy. In a recent article published in the Canadian Bar Review, Vanessa MacDonell examines the process, and tries to draw some lessons from it that might guide the government in improving its Charter vetting process for legislation:

The differences between GBA+ and the Charter vetting process may explain why they have evolved in different ways. GBA+ involves a form of structured policy analysis. The process therefore mandates evidence-gathering, consultation, analysis, recommendations, and the like. Rights vetting, on the other hand, is a form of legal analysis. It is not surprising, then, that this process would engage the tools of legal analysis—hence the use of a checklist of possible rights infringements and an emphasis on legal risk analysis. As an outsider, it is difficult to know what role evidence-gathering and consultation play in the Charter vetting process, though it likely varies. Unlike policy-makers, however, lawyers might be inclined to believe that their legal training provides them with everything they need to conduct an analysis of likely Charter impacts. This view would be short-sighted. Good evidence is crucial to assessing Charter impacts.

Read the whole thing.

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The practice

The art of being strategic about marketing

By Sandra Bekhor October 12, 2018 12 October 2018

The art of being strategic about marketing

 

Websites, Google ads, SEO, swag, media, seminars, newsletters, LinkedIn, Facebook, video…

That’s all well and good as a list of relevant areas to do marketing for your firm. But how do you make them, collectively, help you take your practice where you want to go?

At the end of the day, marketing should be about more than just bringing in a few inquiries, which wouldn’t be a sustainable, or even satisfactory, return on your investment. It should be about pursuing what you really want. The right clients. The right files.

To really deliver impact, instead of an assembly line of disjointed efforts, you need an overarching strategy that ties all your activities together, a strategy driven by your firm’s identity and its goals.

Think about it. What do you (and your partners) really want for your firm? Be as specific as you can. Financially, strategically and personally.

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Competition law

The TREB ruling and the Bureau’s role in upholding competition

By Kim Covert October 11, 2018 11 October 2018

The TREB ruling and the Bureau’s role in upholding competition

 

The Competition Bureau’s Jeanne Pratt doesn’t have to think too hard when asked how long it took to reach a final decision in the Toronto Real Estate Board abuse of dominance case – it’s the same age as her only child.

“I look at him and how much he’s grown,” Pratt, the Senior Deputy Commissioner, Mergers and Monopolistic Practices Branch, told a plenary session at the Competition Law conference in Ottawa in September.

A Federal Court of Appeal decision in December upheld a 2016 Competition Tribunal ruling that requires TREB to remove restrictions on its members’ access to real-estate data, including historical listings and sale prices – for display online through virtual office websites. 

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Administrative law

Rebooting the standard of review: Can it be done?

By Doug Beazley October 9, 2018 9 October 2018

Rebooting the standard of review: Can it be done?

 

In December, the Supreme Court of Canada will hear three concurrent appeals touching on one awkward question: where courts should draw the line on revisiting, and overturning, the decisions of government-appointed panels and individuals tasked by governments with administering the law.

The facts of the appeals are intriguing enough on their own. One deals with a government decision to rescind the citizenship of a Canadian-born son of Russian spies. The other two are going after the CRTC’s decision in 2016 to prohibit the practice of “simultaneous substitution” — buying American TV programming (in this case, the Super Bowl) and swapping American commercials for Canadian ones.

Espionage and football — a weird combination that guarantees intense media interest. But that’s not why lawyers will be watching.

Administrative law — the law that governs the actions of a wide spectrum of government-empowered administrators making binding legal decisions — tends to be both low profile and ubiquitous.

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Trade

Why the U.S. agreed to scrap NAFTA’s Chapter 11

By Doug Beazley October 5, 2018 5 October 2018

Why the U.S. agreed to scrap NAFTA’s Chapter 11

 

Complex, sprawling international trade treaties like the new United States-Canada-Mexico Agreement, or USMCA (or NAFTA 2.0, if you find President Trump’s preferred title a little lumpy), can be difficult to sell to hardcore ideologues. Big treaties have a lot of moving parts; one side gives something up to get something, while the other side does much the same.

So USMCA has a couple of features that aren’t easy to file away as ‘left’ or ‘right’. Take, for example, the fate of NAFTA’s Chapter 11 — the ‘investor-state dispute settlement’ (ISDS) chapter that managed conflicts between nations and foreign investors.

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