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The Canadian Bar Association
CBA Futures

Legal futures round-up

By Yves Faguy July 14, 2017 14 July 2017

Legal futures round-up

 

Inspired by the CBA Legal Futures report on Transforming the Delivery of Legal Services in Canada, here’s our regular round-up of noteworthy developments, opinions and news in the legal futures space as a means of furthering discussion about our changing legal marketplace.

To kick things off, here’s an issue law firms are going to have to seriously address: their security weak spots. A recent study reveals that there is a “widespread lack of cybersecurity in law firms" and reports that  two-thirds of the 200 responding law firms had reported some sort of cyber breach. Also worrisome, many don’t have cybersecurity insurance.

That report was released as news hit that global law firm DLA Piper suffered a major cyber attack -- yet another a reminder that law firms are a choice target for hackers.

Some firms are taking the threat seriously. International immigration services firm Fragomen announced it is opening an immigration technology innovation lab in Pittsburgh, to be staffed with 40-50 professional – none of them lawyers. The office is going to be focused on software development and cybersecurity.

On the technology front, Julie Sobowale explores blockchain and what it means for legal professionals.  Here’s a hint: Smart contracts, which explains why AIG is teaming up with IBM “to develop a "smart" insurance policy that uses blockchain to manage complex international coverage.”

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CBA Influence

Working the convention: Regional representation on the SCC, please

By Kim Covert July 13, 2017 13 July 2017

Chief Justice Beverley McLachlin’s announcement in June that she will be retiring at the end of 2017 means the government will soon start the process to fill her seat on the Supreme Court. Once again, the CBA is asking the government make an appointment based on merit, ensuring that the court reflects the full diversity of Canada’s regions, legal systems and population.

McLachlin’s seat on the court is one of the two traditionally held by Western Canada. The jury is out, however, on whether that seat should go to a jurist from British Columbia, which is where the Alberta-born McLachlin was a sitting judge before her appointment to the Supreme Court, or to any of the four provinces west of Ontario.

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Intellectual property

Copyright fees at York: Federal Court rejects fair dealing

By Justin Ling July 13, 2017 13 July 2017

Copyright fees at York: Federal Court rejects fair dealing


A lengthy copyright battle, which a Federal Court judge compared to the chain of events that sparked World War I, between York University and a rights holder consortium has resulted in a blow for the fair dealing exemption.

The decision, says Canadian copyright expert Michael Geist, “moves in precisely the opposite direction with restrictive language that other courts and the Copyright Board have rejected.”

The case goes back to 2010, when the Canadian Copyright Licensing Agency (also known as Access Copyright) proposed to the Copyright Board of Canada that post-secondary institutions be charged $45 per each full-time employee (or equivalent) per year.  That represents a major hike from the previous $3.38 annual fee, topped up with a $0.10 per page royalty, that had applied up to 2010.

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Arbitration

Litigation funding: CETA’s disclosure requirements

By Yves Faguy July 11, 2017 11 July 2017

Litigation funding: CETA’s disclosure requirements

 

There is still resistance in some jurisdictions, such as Ireland, to third-party litigation finance. But the market, globally, continues to make headway, particularly as Hong Kong has now allowed the practice in arbitration and mediation matters.

What sets Hong Kong apart from other jurisdictions, though, is that it has imposed requirements on funded parties to disclose the funding arrangement, as well as the identity of the third-party funder, all with a view to addressing concerns about conflicts of interest between the various parties involved.

In the arbitration context there is currently no explicit requirement for litigants to disclose their funding arrangements in Canada  (though in Ontario a court may force the disclosure of such an arrangement to the opposing party in the class action context).

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Blog

Omar Khadr civil suit settlement: Canadian experts weigh in

By Mariane Gravelle July 10, 2017 10 July 2017

It’s front page news: last week, the federal government reached a settlement with Omar Khadr in a civil suit (read about it here). Khadr and his team filed the suit against the government alleging a violation of his rights under the Canadian Charter of Rights and Freedoms by Canadian officials during his incarceration at the Guantanamo Bay detention camp.

As one can expect in such a polarized case, this settlement elicited a wide range of reactions from citizens, journalists and politicians alike.  Many decry the fact that a person they consider to be a former terrorist has now been made a millionaire at taxpayers’ expense. Vancouver radio host Charles Adler, cited by the Globe and Mail, sums up this opinion:

“This is not residential schools we’re apologizing for. We’re apologizing to an enemy combatant who betrayed his country and went overseas to build roadside bombs. […] Most [people on the street] think that when you turn your guns on your own country, you stop being a Canadian.”

Still, others believe that the settlement is justified.

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Blog

Federal government settles civil suit launched by Omar Khadr

By Mariane Gravelle July 7, 2017 7 July 2017

In a midday press conference on Friday, the federal government publicly acknowledged that it had reached a settlement in a civil suit launched against it by former Guantanamo Bay prisoner Omar Khadr.

While details of this settlement remain confidential, Public Safety Minister Ralph Goodale and Justice Minister Jody Wilson-Raybould stated that that it included a written apology that will soon be put on public record.

Mr. Goodale explained that neither the civil case nor the ensuing settlement were about Mr. Khadr’s actions in Afghanistan. Rather, this case examined the question of whether the behaviour of Canadian officials towards Mr. Khadr during his imprisonment violated his rights as a Canadian citizen.

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The Practice

Got stress? What to do before the burnout hits

By Ann Macaulay July 7, 2017 7 July 2017

Got stress? What to do before the burnout hits

 

Many young lawyers struggle with high levels of stress and often leave the practice of law altogether because of it. Conflict, long hours, demanding clients, competition and the constant pressure to be perfect can be stressful for even the toughest, most experienced lawyers.

Fortunately, there are many ways to cope before burnout hits. Most people typically start with the basics to fight stress: exercise, eat and sleep properly, take vacations, meditate, practise mindfulness and don’t isolate yourself from others. But there’s even more that can be done.

Don’t be afraid to ask for help, says Gary Mitchell, CEO and founder of On Trac Coach in Vancouver. “Don’t try and do it on your own. You may think you’re the smartest person in the room but often you’re not because other people have other skills. Surround yourself with those other people.”

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CBA Community: Young Lawyers International Program

Finding a calling far from home

By Beverley Spencer July 6, 2017 6 July 2017

Finding a calling far from home


Persia Sayyari’s path to the BC Coroners’ Service took her via Constitution Hill, a former prison in Johannesburg where men and women who fought apartheid were once incarcerated.

Home to South Africa’s Constitutional Court and the offices of the South African History Archive (SAHA), it’s where she worked as an intern with the Young Lawyers International Program in 2012-13. Her experience there shaped her decision to pursue a career with an investigative role – as a coroner who conducts preliminary investigations of unnatural, unexpected or unexplained deaths.

It’s a long way from SAHA, an independent human rights archive that preserves histories about struggles for social justice and uses access to information laws to support present-day activism.  But the work was an eye-opener for someone who, as an articling student, had been frustrated with how the human elements of a case can be ignored during litigation.

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The Practice

Sitting on a board can improve your professional footing

By Carolynne Burkholder-James July 6, 2017 6 July 2017

Sitting on a board can improve your professional footing

 

Volunteering as a board member can benefit both your community and your law career as well, according to Matthew Reid.

Reid is a personal injury lawyer with Cohen Highley LLP in London, Ont., who has extensive experience as a board member. Currently, he is a school trustee and chair of the Thames Valley District School Board and president and chair of the board at HOBY Canada, a youth leadership program. Reid has also been a board member with Regional HIV/AIDS Connection and several other organizations.

Reid says he encourages young lawyers to volunteer their services as a board member. 

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North Korea and the legality of nuclear tests

By Mariane Gravelle July 5, 2017 5 July 2017

North Korea and the legality of nuclear tests

A large number of sanctions imposed on their nation as a result of previous missile-launch tests does not seem to have deterred the North Korean government from engaging in yet another test of that nature. On July 4th, Pyongyang launched what they claimed to be an intercontinental ballistic missile (ICBM) into the waters bordering Japan. Especially concerning is the fact this latest missile – if fired on the right trajectory – could potentially reach Alaska.

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Administrative law

Paul Daly on getting lost in description

By Yves Faguy July 4, 2017 4 July 2017

Paul Daly on getting lost in description

 

In the latest volume of the Canadian Bar Review, which examines the legacy of the former Supreme Court Justice Louis LeBel, Paul Daly explores the limits of language in administrative law, and LeBel’s role in clarifying our understanding of judicial review.  CBA National sat down with the senior lecturer in public law at the University of Cambridge to ask him about why descriptive language in law can be more of burden than help.

CBA National: Why is administrative law such a difficult subject?

Paul Daly: Administrative law is tricky because it is a body of general principles that exist in the abstract and then they have to be applied to different substantive areas of law, which is a challenge. So, you have to apply it to employment law, environmental law, energy law, municipal law, immigration law, a whole host of areas which they themselves have very detailed rules and regulations. Already that gives you a degree of complexity. Then add to this the fact that principles of administrative law are quite recent and the area has undergone a radical reformulation in the last 50 years. And in Canada it's even more complicated because in trying to work through the general principles of administrative law, the Supreme Court of Canada made numerous U-turns and has created a body of case law that is difficult to navigate.

N: So what do you mean when you say that administrative jurists must appreciate the limits of language in reaching more accurate decisions?

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Corporate counsel

Capturing Your “Innerpreneur”

By Jim Middlemiss July 4, 2017 4 July 2017

Capturing Your “Innerpreneur”

 

Sébastien Guénette had a crash course on how to think like an entrepreneur, and the Director, Legal at the Canadian operations of Japan Tobacco International (JTI) says he’s a better in-house lawyer because of it.

“Being in the shoes of an entrepreneur for a week and taking your legal hat off was a very good exercise,” Guénette says of a course that his company’s legal department put on in Madrid for 80 of its senior in-house lawyers two years ago.

One of the big benefits for him was learning to “take the risk to make decisions, even if the data is not entirely complete, which business people often do, but it is very counter-intuitive for a lawyer to do that.”

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