The Power of Perspectives

The Canadian Bar Association
Employment

Legal marijuana and the challenges of workplace drug testing

By Doug Beazley June 26, 2018 26 June 2018

Legal marijuana and the challenges of workplace drug testing

 

As the federal Liberals will no doubt remind you over the coming year, they made history this spring. The Senate (after a lot of grumbling, and the rejection by the government of a stack of amendments) passed C-45, the bill creating a legal market for recreational marijuana.

Prime Minister Justin Trudeau called it a promise kept. His opponents called it a catastrophe in the making. The Liberals were sending out fundraising emails on the topic within a day of the bill’s passage.

Mission accomplished? Not by a long shot. Provinces still have to define rules for transport and sale. Municipalities need to settle questions about zoning. There could be a court battle between Ottawa and provinces that wish to restrict or ban home cultivation.

But the biggest gap in the legal framework surrounding recreational cannabis has to do with the workplace. 

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CBA influence

Playing our cards right: Improving the PR experience

By Kim Covert June 26, 2018 26 June 2018

 

In a perfect world, an immigrant gets permanent resident status, receives the appropriate paperwork in a timely manner, and a new life in the new country – travel, school, employment – goes on as normal.

And about 80 per cent of the time in Canada this is the case – applications for new permanent resident cards are processed in about two months, and renewals take about four months. But the other 20 per cent of the time, the CBA’s Immigration Law Section says, all bets are off – lawyers have had cases where it’s taken as much as 12 months to get a PR card, presenting difficulties “ranging from inconvenience to emotional and financial hardship for the applicant, their family members and their employers.”

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The Supreme Court

On TWU, the SCC made the right decision for LGBTQ+ rights

By Jennifer Taylor June 22, 2018 22 June 2018

On TWU, the SCC made the right decision for LGBTQ+ rights

 

The Supreme Court of Canada’s decision in favour of LGBTQ+ rights in last week’s pair of Trinity Western decisions is welcome news, even if the split reasons are somewhat untidy. In Law Society of British Columbia v Trinity Western University and Trinity Western University v Law Society of Upper Canada the majority found it was reasonable for the two law societies to deny accreditation to TWU’s proposed law school because students there are required to agree to a Community Covenant, which effectively prohibits sexual relationships outside heterosexual marriage.

Here are five takeaways from the rulings (focusing on the BC reasons).

1. Law societies have an essential gatekeeper role in ensuring equitable access to the legal profession

Law schools are “the first point of entry to the legal profession” (see Justice Malcolm Rowe’s concurring reasons). For this reason, law societies can insist on equitable access to law schools as the training ground for the lawyers that they will eventually regulate. This is part of a law society’s statutory mandate to uphold the public interest in the administration of justice.

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CBA influence

Past time to create a National Commissioner for Children and Youth

By Kim Covert June 22, 2018 22 June 2018

 

Canada is a great country, full of promise for this and future generations. What it lacks is an office to ensure that promise is kept, despite international treaty obligations that confer on it the responsibility to create one.

When Canada ratified the UN Convention on the Rights of the Child in 1991, among other things it accepted the obligation to establish the office of a National Commissioner for Children and Youth. Six years ago, in its Concluding Observations on Canada’s Third and Fourth Reports on the CRC, the UN Committee on the Rights of the Child once again urged Canada to establish such an office.

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Advocacy

CBA supports ABA statement on immigration detention of children

By CBA/ABC National June 20, 2018 20 June 2018

CBA supports ABA statement on immigration detention of children

The Canadian Bar Association has issued a statement in support of the one made by the American Bar Association opposing the separation of migrant children in the United States from their parents and being held in detention facilities:

In 2016 the CBA was one of more than 400 signatories on a statement against the immigration detention of children, which said the practice of holding children in detention causes lasting psychological harm. The CBA’s own 2017 submission on the New National Immigration Detention Framework called on the Government to find viable alternatives to holding children in detention, with or without parents.

The CBA commends the Canadian Government’s direction to the Canada Border Services Agency in June 2017 to “as much as humanly possible keep children out of detention, and keep families together,” with the best interests of the child at the forefront. The CBA is committed to working with the Government to continue to improve our refugee determination system.

The CBA’s 2017 submission made six recommendations on children and minors in detention:

  • clarify that the best interests of the child is a primary consideration in any decision on detention that affects a child, regardless of the child’s status.

  • in addition to assigning a designated representative to an unaccompanied or separated minor, consider providing legal representation.

  • detained children should not be separated from family members while in immigration holding facilities. Where the detention of families cannot be avoided, family units should be made available.

  • in addition to schooling needs, adequate recreational activities should be made available to children, including options for participation in off-site programming.

  • appropriate medical and mental health services should be available to minors

  • when children are placed in alternate care arrangements, regular contact with detained parents

The Canadian Bar Association urges all governments to respect their international obligations under the United Nations Convention Relating to the Status of Refugees and the United Nations Convention on the Rights of the Child.

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Corporate counsel

Protecting your digital assets

By Lynne Yryku June 20, 2018 20 June 2018

Protecting your digital assets

 

“The number of people who are trying to infiltrate networks today greatly exceeds those who are trying to prevent intrusion. So the external hacker world is always half a step ahead of the people who are trying to maintain the integrity of the system,” says Stephen Spracklin, Legal Counsel, Information Technology and Intellectual Property with the City of Mississauga. “It is not a matter of if; it’s when—and then how prepared are you to deal with that eventuality.”

“We handle an average of about 40 to 50 incidents per month [across Canada],” adds Daniel Tobok, CEO of Cytelligence Inc. “Ransomware has been a very big problem in the industry over the past 24 months. People are getting hit left, right and centre, especially the small- to medium-sized organizations, which are getting hit every single day. And now the problem with ransomware is that the bad guys are getting very sophisticated. The average bad guy spends about 28 to 64 days on a network before actually hitting them with the infection. […] We just dealt with a municipality that had literally just under 1,000 servers taken down and to repair all the servers you’re looking at millions of dollars.” 

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CBA influence

What the IRB needs: Transparent appointments, adequate training

By Kim Covert June 20, 2018 20 June 2018

 

The Immigration and Refugee Board is Canada’s largest federal administrative tribunal, and has an important role in the Canadian immigration law landscape.

As such, it’s imperative that IRB members be appointed through a transparent process and trained properly for the roles they have to play, says the CBA’s Immigration Law Section in its contribution to the Citizenship and Immigration Committee’s study of the IRB’s appointment, training and complaints process.

The CBA has called for transparent, accountable and impartial federal tribunals for decades, and recent problems have highlighted the need for improvements, the Section writes, with particular emphasis on enhancing transparency throughout the IRB process.

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Cover story

Why women leave

By Janice Tibbetts June 18, 2018 18 June 2018

Why women leave

 

Every few months or so, Toronto lawyer Sara Gottlieb gets together for brunch with her Osgoode Hall Law School friends from a decade ago. There are 10 of them, all women, and although they all started out in coveted jobs in private practice, only one remains. The nine others have traded the punishing pace and unworkable lifestyle for positions as in-house lawyers with companies or public institutions.

“Everyone has left,” Gottlieb (pictured above) says of her gang’s exodus from private firms, where the majority of young lawyers head after being called to the bar.

Now a 35-year-old mother who is pregnant with her second child, Gottlieb says she works at her “soul-mate job” as an in-house lawyer at the University of Toronto. Still, she recalls the rush, as a newly minted lawyer, of working on major files at big firms on Wall Street and then Bay Street, such as advising companies after the fallout from the Lehman Brothers collapse and fraudster Bernie Madoff‘s Ponzi scheme.

“The work is so interesting, and it seems you will never be able to match that quality of work after you leave private practice, but for many people, there are so many intervening factors that you have no choice,” she says.

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Profile

In Person – Jameela Jeeroburkhan

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

In Person – Jameela Jeeroburkhan

 

Jameela Jeeroburkhan is a partner at Dionne Schulze in Montreal, where she helps Indigenous clients navigate complex litigation and negotiates on their behalf with governments and industry. She is an executive committee member of the CBA’s National Aboriginal Law Section.

Who has had the biggest influence on you, and why?

My father was a journalist and my mother worked in international development. There was always a sense that my work was going to have some interest in social justice and activism. I ended up going into law, which isn’t political activism, but it is about advocacy.

I also had a high school history teacher, the late Bob Hamilton, who encouraged me to think critically about history and dominant historical narratives; medical anthropology professors at McGill University, such as Margaret Locke, inspired rigour in interdisciplinary studies, which led me from anthropology to law; and law professors Colleen Sheppard and Nicholas Kasirer at McGill, both of whom I am lucky to have worked for, influenced my approach to law. Many of my initial lessons in practice came from my articling principal, Peter W. Hutchins. He was a very patient and an encouraging teacher. 

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Women in politics

Answering the call: Advice for women thinking about running for public office

By Jennifer Taylor June 18, 2018 18 June 2018

Answering the call: Advice for women thinking about running for public office

 

“We need more women in politics” has become a louder refrain since the 2016 U.S. presidential election. The data suggest women are taking this mandate to heart – not only in the U.S., where record numbers of women will run in the upcoming midterm elections, but in Canada, where organizations like Equal Voice are holding workshops and leading campaigns to encourage more women to run for elected office.

Claudia Chender is one woman who answered the call. A lawyer and graduate of UVic Law, Chender is the New Democratic Party (NDP) member of the legislative assembly for the Nova Scotia riding of Dartmouth South, where I live. She was elected last spring.

I sat down with her to talk about her first year in politics and get some advice for women thinking about making the leap. (Full disclosure: I canvassed for Chender a couple of times during the campaign.) Here is what I learned.

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Practice hub

How government works

By Ann Macaulay June 18, 2018 18 June 2018

How government works

 

The Diners

The former government lawyer: Before joining Miller Thomson as a partner, John Grant was Crown counsel for 15 years. He has also been a tax litigation expert with Canada’s Department of Justice.

The in-house counsel: Eryn Fanjoy is an associate practising in Stikeman Elliott’s Tax Group.

Tax litigators in private practice often assume the government is all-knowing and all-powerful, with “a massive amount of resources and manpower to throw at litigation,” says John Grant, a former Department of Justice (DOJ) litigator. But that’s simply not true. “Often, the government is the litigation side that’s outmanned.”

Now in private practice at Miller Thomson in Toronto, Grant is sharing his insights with second-year Stikeman Elliott tax associate Eryn Fanjoy, passing along what he learned over the course of more than 15 years at the DOJ.

Over a lunch of black cod at the very busy Drake One Fifty in Toronto’s business core, Grant recalls that courtroom experience plus the opportunity to represent Canada on matters of national scope greatly appealed to him after he graduated from law school. “You’re immediately on your feet” at the DOJ, he says, unlike private practice. “There’s no better training ground than the government.” During his time in government, John worked on hundreds of files, including about 100 reported decisions.

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Practice hub

Collaboration at work

By Julie Sobowale June 18, 2018 18 June 2018

Collaboration at work

 

Teams from Firm A and Firm B arrive at the office of in-house counsel to pitch their services. When the team from Firm A presents, presenters compliment each other as they speak. When the team from Firm B presents, team members look at their phones while others from their team are speaking. Which firm do you think in-house counsel will choose?

“The competitive advantage of teamwork starts before the work comes in the door,” says Jennifer Romig, law professor at Emory University Law School. “An effective team should be able to pitch in a tailored, cohesive way actually showing how they work together as a team, rather than just saying it.”

Collaboration and teamwork are more than just buzzwords. It’s good business. According to research from Heidi Gardner, a distinguished fellow at the Center on the Legal Profession and faculty chair of the Accelerated Leadership Program at Harvard Law School, lawyers from multiple practice groups collaborating to serve one client earned 12 per cent higher hourly rates than lawyers selling discrete services. She suggests identifying lawyers with expertise that might be beneficial to your clients and finding a project to work on together.

“It starts with the client,” says Gardner. “Even the most self-interested lawyers want to do great work for their client. One GC from Latin America recently told me that he expects his outside counsel to be able to anticipate and address the questions on the mind of the business person. It’s not enough to serve up a narrow legal answer or to focus on winning arguments.

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