The Power of Perspectives

The Canadian Bar Association
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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Competition law

The role of competition law in emerging industries

By Holly Lake October 5, 2018 5 October 2018

The role of competition law in emerging industries

 

In a world where one of the few constants is change and the pace of it is relentless, emerging industries are among the drivers, with chaos and disruption often parked in the front seat.

Also regularly along for the ride? Arguments by some that these industries are shiny, new and different, and should therefore be regulated differently — or not at all.

But for Vicky Eatrides, acting senior deputy commissioner of the cartels and deceptive marketing practices branch at the federal Competition Bureau, it’s not a question of whether competition law and policy applies to artificial intelligence (AI), blockchain, cannabis or the “app economy.”

"It’s pretty clear that it does,” she told a panel at the Canadian Bar Association’s Competition Law Fall Conference in Ottawa in September. 

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The practice

Ten advantages to having an independent sounding board

By Patrick J. McKenna and L. Neil Gower, Q.C. October 4, 2018 4 October 2018

Ten advantages to having an independent sounding board

 

As a leader of a professional services firm, do you have a trusted advisor with whom you can discuss important issues – your own confidential, independent sounding board?

With today’s pace of change, the pressure has never been higher, nor the temptation greater, to act just for the sake of acting – to move things off your pending pile and appear decisive. This kind of “shoot from the hip” style may make us (perhaps initially) feel confident that we are getting somewhere. However, professional firm leaders are usually dealing with complex, multi-faceted issues, filled with land mines and unintended consequences. More "stuff" requires increasing sensitivity, and strategic consideration. Things we didn't even think were issues are now issues. This is where leaders often gain significant value from working with an external sounding board – someone they respect, in whom they can confide and with whom they can collaborate to help or challenge their thinking processes.

From our experience, scheduling time with someone outside of your firm with whom you can talk freely about your agenda and the issues facing you, in complete confidence, has at least these ten benefits:

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Privacy

Blockchain’s role as a privacy enhancing technology

By Fiona Morrow October 3, 2018 3 October 2018

Blockchain’s role as a privacy enhancing technology

 

Many of us hear the word “blockchain,” mentally file it under “something to do with Bitcoin,” and then swiftly move on. But there is more to this new technology than the cryptocurrencies, like Bitcoin, that use it. And lawmakers need to start thinking now about its long-term implications.

Top of mind is blockchain’s potential to enable greater data privacy and data security, says Florian Martin-Bariteau, who runs the University of Ottawa’s Blockchain Legal Lab, a research team investigating the practical uses of the technology — and the legal issues those uses raise. He’s also on a panel at the forthcoming CBA Access to Information and Privacy Law Symposium in Ottawa (Oct. 19 and 20) that will compare uses of blockchain in other industries.

“The blockchain technology is actually a protocol for information or asset exchange, and an infrastructure for data storage and management,” he says. “It is literally a chain of blocks of information which are interlinked in a secure way.”

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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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