The Power of Perspectives

The Canadian Bar Association
CBA influence

How do you solve a problem like privilege?

By Kim Covert January 22, 2018 22 January 2018

 

Bill C-58, An Act to amend the Access to Information Act and the Privacy Act, is a disproportionate response to a problem that doesn’t exist, the CBA said in a December letter to Treasury Board President Scott Brison and Justice Minister Jody Wilson-Raybould.

Read More
Reproductive rights

There’s no Charter problem with Canada Summer Jobs

By Jennifer Taylor January 22, 2018 22 January 2018

There’s no Charter problem with Canada Summer Jobs

It seems self-evident in 2018 that an anti-abortion organization should not receive federal government funds to hire summer students. And yet, the guide for the Canada Summer Jobs program—which requires applicants to attest that the proposed job and their organization’s core mandate respect reproductive rights—has caused an outcry. It’s even prompted an application for judicial review by Toronto Right to Life (TRTL) on the basis that it may infringe the Charter-protected “freedom of conscience and religion of organizations that consider abortion to be immoral” and potentially the Charter’s freedom of expression and equality guarantees as well (to the extent that organizations even have Charter rights, which is debatable).

But the attestation’s opponents are minimizing an essential question: what about the Charter rights of women, like the right to autonomy over their own bodies?

Opponents like Brian Bird emphasize that the Supreme Court of Canada’s landmark decision in R v Morgentaler — a ruling long celebrated as a victory for Canadian women — did not “constitutionally guarantee unrestricted access to abortion in Canada”, as if that provides a complete answer to the question. It doesn’t.

Read More
Corrections

Prolonged solitary confinement unconstitutional

By Yves Faguy January 18, 2018 18 January 2018

Prolonged solitary confinement unconstitutional

 

The B.C. Supreme Court has ruled that Canada’s use of prolonged or indefinite solitary confinement in federal prisons is unconstitutional.

Money quote

"There is an emerging consensus in international law that under certain circumstances solitary confinement can cross the threshold from a legitimate practice into cruel, inhuman or degrading treatment (“CIDT”), even torture."

The B.C. Supreme Court goes on to mention UN bodies who have declared that prolonged solitary confinement mounts to conduct prohibited by the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the International Covenant on Civil and Political Rights.

Read More
Internet law

B.C. appeals court: Virtual presence enough to enforce production order

By Justin Ling January 17, 2018 17 January 2018

B.C. appeals court: Virtual presence enough to enforce production order

 

Since the Supreme Court passed down its decision last June in Equustek, lawyers have been waiting with baited breath to see just how broad an interpretation the new internet regime will receive from the courts. Global tech companies, including Google, hoped to see the Canadian — and even American — tribunals rein in the ability of our courts to order companies to take actions beyond our jurisdictional borders.

A recent B.C. appellate decision suggests that Equustek isn’t going to be relegated to a tiny corner of Canadian law. It is very much the standard.

What happened with Equustek? Ever last year’s Supreme Court ruling in Equustek that Canadian courts have jurisdiction to make orders for foreign-based internet companies that carry on business in Canada, there have been concerns about the practical implications.

Read More
Corporate counsel

Crisis management in the social media age

By Julie Sobowale January 16, 2018 16 January 2018

Crisis management in the social media age

 

When a crisis hits, you want a calm person at the helm of your crisis management. That’s what Kelly Friedman learned early on in her career.

“If an injunction comes in, I’m the one who is calm in those situations,” says Friedman (pictured above), who is national counsel of BLG’s Discovery Services Group in Toronto, specializing in e-discovery, cybersecurity and privacy. “One partner once told me, ‘Thank you for your equanimity.’ I had to look up the word and it means even keel. The more nervous people get, the more calm I get. It’s a great tool as a litigator.”

Litigators aren’t the only ones who need a calm head. How an organization can weather a crisis is now largely based on who gets the information out first. With the rise of social media and the increasingly rapid news cycle, general counsel must be more prepared than ever to deal with the next crisis.

A situation can escalate quickly through social media. On September 7, Equifax revealed that 143 million Americans and 100,000 Canadians (later revised to 145.5 million and 8,000, respectively) had their data stolen as the result of a data breach. The story quickly became viral, with thousands of Twitter users tweeting under hashtag #Equifax. Within two days of the initial report, the Chief Information Officer and the Chief Security Officer retired and two class-action law suits were filed. Then, over the next couple of days, Equifax accidentally tweeted links to phishing websites (websites that mirror others, normally to steal information) to breach victims, causing further criticism and social media outrage. 

Read More
CBA influence

Cannabis laws could have disproportionate effect on immigrants

By Kim Covert January 16, 2018 16 January 2018

 

The legislation to legalize cannabis in Canada comes hand in hand with proposed amendments to other laws and regulations, including the offences that could lead to inadmissibility under the Immigration and Refugee Protection Regulations.

The CBA’s Immigration Law Section notes that offences in the Cannabis Act are broader than those in the Controlled Drugs and Substances Act, which it effectively replaces, and that the potential impact on permanent residents and would-be immigrants is much harsher.

Read More
Corporate counsel

Chasing the money: GCs move needle on law departments as a cost centre

By Jim Middlemiss January 15, 2018 15 January 2018

Chasing the money: GCs move needle on law departments as a cost centre

 

Joel Schuster is not your typical in-house lawyer. In addition to overseeing the usual legal functions, such as compliance and corporate commercial matters, Schuster, Chief Legal Officer, Senior Vice President and Corporate Secretary at Avigilon Corporation in Vancouver, has responsibility for bringing in revenues.

He is in charge of licensing the patent portfolio at the fast-growing Avigilon, which provides video security and analytic solutions.

That means the legal department has its own profit and loss statement, and the division sets a budget on how much it expects to earn from the 740 patents in its portfolio.

“Our revenues blend with the rest of the company’s revenue,” he explains. “We’re here to contribute what we can. It does help that we can bring in revenues. It makes the budgeting process easier.”

Read More
Blog

Guatemalan lawyer faces death threats for actions against mining company

By Kim Covert January 15, 2018 15 January 2018

 

Everyone deserves to be able to do their jobs without death threats and acts of intimidation and violence – including lawyers working to support the rights of an Indigenous people against corporate interests. Indeed, the United Nations Basic Principles on the Role of Lawyers state in part that:

  • Governments shall ensure that lawyers are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference; and
  • Where the security of lawyers is threatened as a result of discharging their functions, they shall be adequately safeguarded by the authorities.

Read More
Legal marketplace

Law firm profitability is not what it seems

By Yves Faguy January 12, 2018 12 January 2018

Law firm profitability is not what it seems

 

The 2018 edition of the annual Georgetown/Thomson Reuters Report on the State of the Legal Market paints a portrait of law firm financial performance very much following the trend of years past, characterized by sluggish growth in demand, a decline in productivity, a modest rise in rates, decline in realization rates and a modest rise in expenses (on account of salary increases at the associate level).

First a quick caveat. The report is squarely focused on U.S firms, mid-size and bigger, but the patterns should be of interest to firms in the Canadian marketplace.

And the takeaway message from this report is that law firms are far less profitable than they used to be before the financial crisis, and that any lingering notion that “law firms are among the world’s more profitable businesses” is pure fantasy:

Read More
Trade

Canada's WTO broadside: What's the strategy ?

By Yves Faguy January 11, 2018 11 January 2018

Canada's WTO broadside: What's the strategy ?

 

Anticipating an imminent U.S. retreat from NAFTA, the Canadian government has decided to go on the offensive in managing its trade relations with our Southern neighbor.  By filing a WTO complaint over U.S. use of punitive duties, and charging that the U.S. is in violation of international trade rules, not just in its dealings with us but other countries such as China, “Canada is taking a run against the entire U.S. trade regime,” says John Boscariol, a trade lawyer with McCarthy Tétrault.

“It’s interesting that Canada has chosen to file such a broad complaint,” Boscariol told CBA National. “In the past Canada has filed one-off cases in relation to a specific product or dispute such as softwood lumber. But this is very different in that it is really more of a systemic challenge to [U.S.] measures.”

Why now?

Given recent musings that Ottawa expects the Trump administration is about to pull the plug on NAFTA, there is speculation that Canada is either trying to gain leverage ahead of the next round of negotiations, or signaling that, with no free trade agreement in place, it intends to use the WTO to fight its trade battles.

Read More
CBA influence

30 is the new over-the-hill: Time to update language law

By Kim Covert January 9, 2018 9 January 2018

 

Canada’s Official Languages Act turns 30 next year, and is beginning to show its age.

CBA President Kerry Simmons wrote to the Ministers of Treasury, Canadian Heritage and Justice, the three portfolios that play the biggest role in the implementation of the Act, calling on them to bring the legislation – initially adopted in 1969 and consolidated in 1988 – into the 21st century.

While the reality of official languages in the country is continually changing, the Act is frozen in time, she said.

Read More
The climate

A major setback for climate change litigation

By Yves Faguy January 8, 2018 8 January 2018

A major setback for climate change litigation

 

An Oslo court ruled last week that Norway's government can allow further oil exploration in the Arctic. The lawsuit, brought by Greenpeace and the Nature and Youth Group argued that Norway’s decision to award new drilling licenses to oil companies in 2016, only weeks prior to ratifying the Paris Climate Agreement, was in violation of the country’s Constitution which includes a guarantee to a healthy environment.

Why it matters

The ruling is major defeat for environmental groups who saw the lawsuit as a test case for the “keep-it-in-the-ground movement” focused on ending the extraction of remaining fossil fuels in the world to tackle climate change.  There has been a growing international trend towards more litigation around climate change, but the courts are still reluctant to step in to judge the merit of government policies.  Bloomberg quotes the Oslo court ruling:

“Some issues that the environmental organizations have raised fall outside what was tried by the court,” according to the ruling. “Whether Norway is doing enough for the environment and climate, and if it was sensible to open fields so far north and east” are questions “better assessed through political processes,” the court said.

The court found that Norway is responsible only for “greenhouse gas emissions within its borders, not those causes by burning exported oil and gas.” Adding insult to injury, the Oslo court ordered the two environmental groups to pay the government’s legal costs. There is no word yet on whether they will appeal.

 

 

Read More

Current Issue

Editor's Picks

Decolonizing the Indian Act

Editor's Picks

Law firm partnership: in name only?

Editor's Picks

Recovery from addiction and reckoning with our common humanity

National TV

  • Thumb

    CBA's intervention in Lloyd v. R

  • Thumb

    Margaret Hagan on the role law schools can play in fostering innovation

  • Thumb

    Melina Buckley on the importance of legal aid benchmarks in Canada

View All Videos

Partners In Your Success