The Power of Perspectives

The Canadian Bar Association
Message from the editor

CBA National is turning a new page

By Yves Faguy September 7, 2018 7 September 2018

CBA National is turning a new page


After 42 years as a print publication, CBA National magazine is moving to a new all-digital platform. Our last print edition was our Summer 2018 issue. In the coming months, we will be focused on redesigning the existing digital publication, growing our online presence and stepping up our recruitment of op-ed contributors, particularly among members.

It was a decision that wasn’t taken lightly, as we know that some CBA members will miss the familiarity and tactile experience of the print issue.

However, amid ongoing concerns about a challenging print market, the time has come to embrace and fully commit to an exclusively digital future, in which we will cultivate an inclusive and engaged legal professional community online.

Six years ago we launched the digital version of CBA National (nationalmagazine.ca) at a time when it had become clear that we could no longer stay on the sidelines and ignore the power of new media.  Our online audience has grown steadily since then, and this transition is the logical next step toward an innovative and sustainable future.

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Insolvency

Lenders vs pensioners: Whose claims should be preferred?

By Doug Beazley September 6, 2018 6 September 2018

Lenders vs pensioners: Whose claims should be preferred?

Attilio Malatesta worked in sales for Sears Canada for more than four decades. In early August, he got the news he’d been dreading: his pension was being cut by $800 a month.

"Who the hell's going to hire a 73-year-old guy?" he said. "I can only stay on my feet for so many hours. I have arthritis.”

When Sears went under in early 2018, it left behind a pension plan burdened with a $260 million actuarial shortfall serving about 18,000 former employees. That shortfall is forcing deep cuts in retirees’ incomes, pushing many of them back into the job market late in life.

This fall, the retirees are going to court to seek an order for a priority claim on Sears’ remaining assets to shore up the pension plan. Even if they win, they’ll lose: those assets can only cover a little more than half of the shortfall.

And the retirees’ case stands a good chance of falling down in the face of a basic aspect of Canadian insolvency law: when a failed company’s pension plan can’t pay what it owes, retirees typically find themselves at the tail end of a long queue of creditors.

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CBA Influence

First Nation claims: Tribunal practice directions must consider funding available to claimants

By Kim Covert September 5, 2018 5 September 2018

 

Stable, adequate funding is a clear concern for the CBA’s Aboriginal Law Section when it comes to appearances before the Specific Claims Tribunal, which handles claims made by First Nations alleging that the federal government has violated a treaty or the Indian Act.

Commenting on draft practice directions which were circulated among members of the Tribunal’s Advisory Committee – which includes Section representatives – members stated the general need for the Tribunal to consider the financial implications of any new procedural steps.

Acknowledging that the Tribunal has no power over funding levels, the Section notes claimants “often have access to significantly less resources than respondents” and that the Tribunal needs to be attuned to this lack.

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Profile

Interview with CBA President Ray Adlington

By Kim Covert September 4, 2018 4 September 2018

Halifax tax lawyer Ray Adlington, a partner at McInnes Cooper, became president of the Canadian Bar Association on September 1. In an interview with CBA National, he discussed his priorities for the year ahead and the Association’s role in helping legal professionals acquire the skills they need to succeed.

CBA National: This is a challenging time for the profession. We’re seeing a variety of new business models challenging traditional firms. Technology is forcing lawyers to reconsider how they both deliver and bill for their services. Law schools are being questioned about whether they’re properly preparing lawyers for the future. The profession is still facing issues surrounding diversity, and the justice system itself under strain. With all that in mind can you tell us what you’ve identified as your priorities for the year ahead?

Ray Adlington: That’s an accurate depiction of where the profession stands today. Before speaking about my personal priority, the priorities the CBA’s Board have identified for the year are increasing member value and enhancing member satisfaction with their CBA experience. Based upon the results of member surveys, the Board has also identified two advocacy priorities for the year: improving access to justice and protecting solicitor/client privilege. We will be communicating back to members over the course of the year as our work progresses.

As a personal priority, I will be focused on advancing inclusivity within the legal profession. We know certain cultural identities are under-represented in our profession generally and in leadership positions particularly.  We know the stigma that attaches to depression and other mental illnesses that does not attach to cancer and other physical ailments. This year, I am looking forward to working with equality-seeking groups and our Wellness Subcommittee to educate members around combating their implicit biases by recognizing them, accepting that they hold them, and then  reflecting that analysis into the judgments made about the different behaviours that other people bring to a particular setting.

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Legal affairs

Friday weekly wrap-up

By Yves Faguy August 31, 2018 31 August 2018

Friday weekly wrap-up

Here’s a quick look at the major legal stories from the past week.

It’s been a stressful week ahead of the Labour Day weekend for the Trudeau government. Yesterday, the Federal Court of Appeal overturned approval of the Trans Mountain expansion project on two grounds. The NEB was wrong not to assess the related effects of maritime shipping. And the government fell short in meeting its duty to consult First Nations. This is not to say that the project is dead, yet.  Ottawa could appeal the decision, and the Prime Minister has assured Alberta’s premier, Rachel Notley, that he “stands by the TMX expansion project and will ensure it moves forward in the right way.” But as Robert James writes “that decision is an indictment of DOJ/NRCAN approach to consultation and their efforts to turn it into a narrow, administrative law process.” Environmental assessments, done right, will save time, money and political heartburn. Notley has announced that Alberta is pulling out of the Trudeau government’s climate change plan.

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Justice

Filling judicial vacancies: Only a partial solution

By Justin Ling August 29, 2018 29 August 2018

Filling judicial vacancies: Only a partial solution

 

During their first three years in government, the Justin Trudeau-led Liberal Party has managed to stickhandle some significant legal files with relative skill. Medical assistance in dying, the legalization of cannabis, national security reform were all brought forward and passed into law with little of the legal fight that overshadowed much of the agenda of the Harper government before it.

But criticism remains regarding Ottawa’s handling of criminal justice. In particular, a fight is brewing over a justice reform bill that Justice Minister Jody Wilson-Raybould says will tackle court delays. Her critics say it will do the opposite.

The other big-ticket attempt to fix the issue of court delays has been to create new spots on the bench and get them filled in a reasonable time. Staffing the judiciary, however, has been a challenge for the government.

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CBA influence

Time to let charities and not-for-profits make money

By Kim Covert August 29, 2018 29 August 2018

 

Every year the federal government asks Canadians what its priorities should be in the next budget.

This year the CBA’s Charities and Not-for-Profit Law Section has essentially replied: “Let our people make money.”

“We urge the federal government to amend the Income Tax Act to clarify that charities and not-for-profit organizations must be able to innovate, carry on business activities and earn tax-exempt profits, as long as those profits are used for the purposes of the organization and not for the undue benefit of any party or the personal benefit of any director, shareholder or member, directly or indirectly,” the Section writes in its submission to the Finance Committee. “We also urge the federal government to remove barriers that inhibit charities from working with not-for-profits or non-registered charities, allowing them to maximize their success.”

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CBA influence

Technology could help streamline, accelerate IRB’s refugee work

By Kim Covert August 28, 2018 28 August 2018

 

The Immigration and Refugee Board has a number of resource and efficiency issues, and adding another layer of bureaucracy is unlikely to improve the situation, the CBA’s Immigration Law Section says in a recent submission responding to an independent review of refugee determination procedures.

The report on the review proposes creating an Asylum System Management Board at the deputy minister level to recommend an annual plan for the asylum system.

Noting that the Immigration and Refugee Board is hailed internationally as a model for independent refugee determination, the Section says that a separate board world bring the refugee determination process under further government control, undermining the IRB’s independent decision-making.

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The Supreme Court

We need to equip lawyers with better trauma-informed legal skills

By Aruba Mustafa August 27, 2018 27 August 2018

We need to equip lawyers with better trauma-informed legal skills

 

How clients react to emotional trauma is complex and difficult to predict. It is why representing clients who are experiencing trauma is always challenging at best. The danger, however, is that without proper training, it can be psychologically harmful to the client or lawyer, or both.

Fortunately, “trauma-informed lawyering” is an approach to providing legal services that involves recognizing, understanding and accommodating a client’s trauma, and the impact it can have on the lawyer. It’s an approach that individual lawyers can integrate into their practice. 

Doing so within an organization that also adopts a trauma-informed approach produces even better results.

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Climate law

Is a carbon tax by any other name still constitutionally valid?

By Supriya Tandan August 27, 2018 27 August 2018

Is a carbon tax by any other name still constitutionally valid?

 

Carbon pricing may be the environmental economist’s preferred tool to change behaviour to achieve meaningful greenhouse gas emissions reductions. But it remains a difficult sell, politically.

Just a decade ago prominent politicians, academics and a former Premier were forecasting a looming battle between Alberta and the federal government over the prospect of federal greenhouse gas regulations. As it turns out, the provinces challenging the Greenhouse Gas Pollution Pricing Act, Canada’s legislative mechanism for pricing carbon, are Saskatchewan and Ontario. The most prominent, and politically controversial, aspect of the Act is the imposition of a $10/tonne charge on greenhouse gas emissions in 2018 (increasing to $50/tonne by 2022). This backstop would only be imposed on those provinces that do not establish equivalently stringent measures to reduce emissions.

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CBA Futures

Friday weekly wrap-up

By Kim Covert August 24, 2018 24 August 2018

Friday weekly wrap-up

 

Here’s a quick look at the major legal stories from the past week.

This, but not like that: Saying they agree with the result of the judge’s decision in Canada Without Poverty v AG Canada, but not necessarily the logic used to reach it, the ministers of Finance and National Revenue announced they will appeal the decision. That announcement came just a week after the government announced it would change the parts of the Income Tax Act that the judge in that case struck down, which keep charities from carrying out non-partisan political activities.

Justice Minister Jody Wilson-Raybould promises to “advance change” on mandatory minimum sentences after an Ottawa judge last week joined the long line of judges who’ve rejected mandatory sentences as cruel and unusual. The Justice Minister told Lawyer’s Daily that she believes judges should have the discretion to decide on appropriate sentencing, but “we need to ensure that we will put in place sentencing reform that will stand the test of time.”

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CBA influence

C-43 plus C-46 equals disproportionate penalties for immigrants

By Kim Covert August 24, 2018 24 August 2018

 

The harsh measures in 2013’s Faster Removal of Foreign Criminals Act will be exacerbated when the recently adopted Bill C-46 comes into effect, says the CBA’s Immigration Law Section. And the government should act now to prevent the disparate impact on immigrants.

Under the 2013 legislation, people who had been convicted of a crime in Canada and sentenced to six months in jail – a reduction from the previous two years – were denied the right to appeal their status before the Immigration Appeal Division, on the grounds of “serious criminality.” The law also denied appeal rights to permanent residents and foreign nationals convicted of foreign offences, regardless of sentence. These were just two of the grounds on which the Section objected to the bill at the time. The Section also made objections to bill C-46 before it passed.

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