The Power of Perspectives

The Canadian Bar Association
Trade

Ratifying new NAFTA may not be be so easy

By Yves Faguy April 20, 2018 20 April 2018

Ratifying new NAFTA may not be be so easy

Progress is being made, reportedly, on the renegotiation of NAFTA, as trade representatives appear to be closing in on a deal on new auto rules of origin.

But here's something to worry about. Anna Palmer at Politico reports on growing doubts in Washington about Congress’ ability to ratify a new NAFTA deal in an midterm election year:

The Trump administration has done absolutely nothing to prepare the Hill for a bruising trade vote in the middle of an election year, according to key aides involved. GOP leadership is well aware of the void. When the Trans-Pacific Partnership cleared the Capitol, it benefited from a multi-year, multi-million dollar lobbying campaign.

One possible tactic apparently under consideration is to apply pressure by withdrawing from the current  agreement before a new deal is finalized:

U.S. Trade Representative Robert Lighthizer is said to have advocated for such an approach, according to current and former administration officials.

The strategy, which has been under consideration for months, figures that Congress may not act on the new agreement, preferring the status quo instead.

[…]

“As someone who counts votes that would not be a totally shocking scenario,” said one source who has advised Lighthizer on NAFTA. “If you actually want to get the vote done and you want to pass the damn agreement then you need to create the scenario of either nothing or something different.”

What could possibly go wrong?

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Interprovincial trade

Supreme Court upholds provincial liquor law

By Yves Faguy April 19, 2018 19 April 2018

Supreme Court upholds provincial liquor law

Canada’s Constitution does not guarantee interprovincial free trade, at least not how the term is broadly understood. That’s the key takeaway from the Supreme Court of Canada’s unanimous decision today in R. v. Comeau – commonly referred to as the free-the-beer case.

The case involved a constitutional challenge brought by Gerard Comeau, who had been arrested and fined for bringing beer he purchased in Quebec into New Brunswick, in violation of limits imposed under section 134 of that province’s Liquor Control Act. The trial judge declared the contested provision unconstitutional. In his view that amounted to a trade barrier in violation of section 121 of the Constitution Act, 1867, which stipulates that goods must “be admitted free into each of the other provinces”. The Court of Appeal of New Brunswick dismissed the application for leave to appeal, before the Supreme Court granted leave last year.

How the court decided

“Reading s. 121 to require full economic integration would significantly undermine the shape of Canadian federalism, which is built upon regional diversity within a single nation,” the Court wrote.

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National Volunteer Week

Outstanding CBA volunteer: Jennifer MacPherson

By CBA/ABC National April 19, 2018 19 April 2018

Outstanding CBA volunteer: Jennifer MacPherson

 

CBA National: What is your main motivation for giving back as a CBA volunteer?

Jennifer MacPherson: Volunteerism was instilled in me at a very young age while I was watching my parents and other members of my community give back. I am very fortunate to be able to practice law and carve out time to work on programming for non-profits, whether community organizations or professional organizations like the CBA. It has been very rewarding to work as a team with other members of the PEI Bar to identify programming needs for the Women Lawyers’ Forum and Continuing Legal Education Committee, to come up with ways to put some fun into those learning opportunities, and to then see those ideas come to life.  I have always been motivated by the supportive response we receive from members of the bar who come out in such large numbers to attend the events, and especially those members of the bar and the judiciary who donate their time to participate in the programming for the events. Whatever the topic, a big part of the success of any CBA event is providing the opportunity for members to come together to communicate with each other and get to know each other better.   

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National Volunteer Week

Outstanding CBA volunteer: Ken Mandzuik

By CBA/ABC National April 19, 2018 19 April 2018

Outstanding CBA volunteer: Ken Mandzuik

 

CBA National: What is your main motivation for giving back as a CBA volunteer?

Ken Mandzuik:  In volunteering with the CBA at the national and local level, I have been exposed to a lot of the work that CBA does that sometimes, unfairly, flies below the radar. Whether it is interventions before the Supreme Court or responding to parliamentary or legislative committees, there is a lot of hard, detailed work the CBA does that benefits all lawyers in every practice area. This is important work that has rightly earned the CBA’s reputation as “the voice of the legal profession”. It requires the dedication and effort of staff and volunteers; by volunteering, I feel I can play some small part in this benefit to the entire profession.

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Division of powers

Quebec's stake in Kinder Morgan

By Yves Faguy April 18, 2018 18 April 2018

Quebec's stake in Kinder Morgan

 

Politicians in Quebec have mostly condemned Ottawa's stated intention to assert its constitutional authority to ensure completion of the Kinder Morgan pipeline project to carry Alberta oil to the west coast. But reality has a way of catching up, as it has now been disclosed that La Caisse de dépôt et de placement, the province’s pension fund manager, has shares worth $174 million in Kinder Morgan Canada. Bloomberg:

The disclosure is another twist in a saga that has Alberta’s provincial government threatening to impose an oil embargo on neighboring British Columbia, with Prime Minister Justin Trudeau attempting to mediate by launching talks to potentially support the company financially. A halt to energy shipments would have ripple effects across North America’s west coast.

Leery of federal overreach, Quebec’s government had essentially sided with British Columbia -- the birthplace of Greenpeace -- in its fight against Trudeau’s attempt to flex jurisdictional muscle and ensure the pipeline’s construction. Now the pension fund manager’s disclosure reveals Quebeckers have a direct stake in its completion.

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Family law

A code of conduct for child-focused family lawyers

By Yves Faguy April 18, 2018 18 April 2018

A code of conduct for child-focused family lawyers

Nicholas Bala, Patricia Hebert and Rachel Birnbaum, in a recently published Canadian Bar Review article, make the case for developing a proper code of conduct for family lawyers – one that would more clearly articulate their obligations towards the children of their parent clients.  In B.C., John-Paul Boyd and others have also been working to develop such guidelines. The authors take the view that too much emphasis on zealous representation in the current system, while appropriate in criminal matters and even in some civil cases, is usually inappropriate in family disputes. And more often than not it can be detrimental to their interests:

Clients need to be reminded that “divorce is not a zero sum game;” they may both be better off with a fair, nuanced settlement that takes account of their circumstances than a regime imposed by a court. This may be most apparent in regard to economic issues, where there may be tax advantages that can only be achieved through negotiation and a joint filing. Although sometimes less obvious to separated parents, the plans that they jointly make are more likely to meet their circumstances and needs than ones made for them by a judge; separated parents and their children are usually better off if they agree to a substantial sharing of responsibilities and time with the children than if one parent has sole care and responsibility.

The authors also discuss the implications for research in the field:

Little is known about how family lawyers in Canada view their role and professional responsibilities, what type of advice they give their clients about parenting or settlement, and how they actually manage their relationships with their clients and other lawyers. More research needs to  be done on how family lawyers in Canada perceive their roles and actually conduct their practices.

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National Volunteer Week

Outstanding CBA Volunteer: Dan McElroy

By CBA/ABC National April 18, 2018 18 April 2018

Outstanding CBA Volunteer: Dan McElroy

 

CBA National : What is your main motivation for giving back as a CBA volunteer?

Dan McElroy: I enjoy connecting with engaged, active and similarly oriented folks, both locally and nationally. Also, the CBA sections that cover my area of practice tend to host excellent meetings, which inspires me to try to chip in.  

N: We’ve all heard the saying, “Be the change you wish to see.” What is it that you want to achieve by giving your time to the CBA?

DM: Other than the professional development (i.e. non-change) opportunities, I want to make my voice heard. In the few legislative submissions or judicial comments I’ve been involved with, CBA volunteers and staff have always been professional, competent and motivated by something more than self interest. Sometimes, however, I’m able to sneak in a point or perspective that might have been overlooked.

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National Volunteer Week

Outstanding CBA volunteer: Patricia Hebert

By CBA/ABC National April 18, 2018 18 April 2018

Outstanding CBA volunteer: Patricia Hebert

 

CBA National: What is your main motivation for giving back as a CBA volunteer?

Patricia Hebert: In my chosen area of focus, family law, I enjoy helping families get through tough times with a view to a better future. I have come to learn how important it is to choose the right processes to help families succeed and children to have happy healthy environments. In litigation, mediation, and collaborative family law, I can help one family at a time. By volunteering to find paths to make the law, processes and practices better, I can have a role in impacting many families at once and over a span of time. We also have stronger voices as a cohesive legal profession interested in positive change. We can do so much more together than we can as individuals. 

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The Pitch 2018

Getting to know The Pitch finalists: Evichat

By Yves Faguy April 17, 2018 17 April 2018

 

As part of a weekly series leading up to The Pitch 2018, the legal innovation startup competition put on by the Canadian Bar Association and Law Made in partnership with LexisNexis, we’re publishing interviews with the five selected finalists to get to know them better.  This week’s Q&A is with Puneet Tiwari (featured in the above video), CEO and co-founder of Evichat, which offers a virtual legal platform dedicated to improving access to justice for regular people.

CBA National: What are the origins of Evichat?

Puneet Tiwari : After law school one of my first summer gigs was working for Shelby Austin at ATD Legal Services, before it was purchased by Deloitte. That was my first exposure to e-discovery. I thought, “Wow, there’s a huge industry here that I didn’t even know about.” After, I articled at a very small firm in the West End of Toronto and then I was hired on. There I slowly realized that almost every single client was bringing me some kind of evidence on their mobile devices — they were sending me screenshots of text messages, or forwarding me 20 emails on a Sunday night, because their boss was harassing them or whatnot. It was just you know data from their mobile phones. I thought to myself, “there has to be a better way to get this.” One screenshot is manageable, but when you get to 20 screenshots, it no longer is. So I tried to look for a solution online that I could pay for, but couldn’t find one. And then I got together with my co-founder who’s a Waterloo engineer. I pitched the idea to him and he said he could build this. And here we are.

N: And so Evichat collects all types of mobile data?

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Division of powers

Kinder Morgan: Democracy and rule of law at work

By Yves Faguy April 17, 2018 17 April 2018

Kinder Morgan: Democracy and rule of law at work

Part of the plan to get the back on track the promise from the Trudeau government that it will introduce legislation that reasserts federal authority over the Trans Mountain project, in addition to backstopping the project with some financial help.  Andrew Coyne is relieved that a better-late-than-never mix of measures holds some promise to get the project back on track. Chantal Hébert worries that the federal government will soon find itself having to defend lawsuits on two fronts.  The first comes from BC (and possibly supported by Quebec) on the province’s constitutional power to regulate the environment on its territory versus Ottawa’s power to carry out infrastructure projects in the strategic national interest.  The second is the threat of legal action from Manitoba and Saskatchewan that would challenge the federal government’s carbon tax plans.

Before the Sunday Summit between Trudeau, Alberta Premier Rachel Notley and B.C. Premier John Horgan, David Moscrop wrote offered up a useful reminder that the “political intractability” surrounding the Kinder Morgan crisis is – in spite of what some commentators are peddling – is really part of Canada’s slow and plodding democratic process:

What we’re seeing with the Kinder Morgan Trans Mountain pipeline debate is democracy, federalism, and the rule of law at work: a divided country working out their opinions on the matter, split jurisdiction actors pursuing their interests, responsive governments keeping their promises, political and legal battles across several sites of licit contestation—and, to boot, a market response of potentially pulling the plug on the project as shareholders vote with their confidence and their dollars.

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National Volunteer Week

Outstanding CBA Volunteer: Mahmud Jamal

By CBA/ABC National April 17, 2018 17 April 2018

Outstanding CBA Volunteer: Mahmud Jamal

 

CBA National: What is your main motivation for giving back as a CBA volunteer?

Mahmud Jamal: The CBA is the national voice of the legal profession in Canada, so it’s important for all of us to contribute to it if we want a strong legal profession that plays its proper role in Canadian society. I’ve always considered myself very lucky to be a lawyer in one of the freest and most tolerant countries in the world. Volunteer work for the CBA is one small way of thanking a profession that has provided so many opportunities for me.

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National Volunteer Week

Outstanding CBA Volunteer: Nancy Birt

By CBA/ABC National April 17, 2018 17 April 2018

Outstanding CBA Volunteer: Nancy Birt

 

CBA National: What is your main motivation for giving back as a CBA volunteer?

Nancy Birt: I recall that as one of my first volunteer involvements with CBA, I was asked to be a member of the PEI branch committee of the Gender Equality Task force, which resulted in the Wilson Report “Touchstones for Change”.  As a young woman in the profession at that time, I felt that CBA was trying to listen to my experiences and offer support. I was also a young entrepreneur, having opened my own law firm with one other woman in Charlottetown in 1993, the same year the “Touchstones for Change Report” was released. My business partner and I were raising our young children and trying to practice law in a way that was not traditional but worked for our families. CBA was an important voice in our profession and support in that time. Throughout my practice, I continued to volunteer my time in other ways with CBA, on other committees, and then on the PEI branch executive, and now as a national board member. I strongly believe in the values of CBA and the role it plays as the voice of the legal  profession. Throughout my career, I have benefitted from the work of the CBA and have felt personal satisfaction in being a volunteer. Ultimately, I hope that my volunteer time with CBA contributes to a vibrant and healthy organization that continues to be the leading voice of the legal profession for many years to come.     

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