The Power of Perspectives

The Canadian Bar Association
Securities law

It’s becoming easier to be green – with better returns

By Doug Beazley June 7, 2018 7 June 2018

It’s becoming easier to be green – with better returns

 

It’s a very good time to be in the planet-saving business. Decades back, when the nascent “socially responsible investment” sector was just getting started, SRI was a boutique product.

It had scored some conspicuous victories — having played a key role in pressuring South Africa’s business community to publicly repudiate apartheid, for example – but it was still a niche market, a way for conscientious investors to sacrifice a few points of profit to their ethics. Nobody really expected SRI products to keep pace with the market. But then they did — and then some.

Genus’s Fossil-Free CanGlobe Equity Fund, which excludes oil companies and high-carbon emitters, has increased in value 102 per cent since it started in 2013. A comparable benchmark fund composed of large-cap Canadian and international stocks grew by roughly 81 per cent over the same period. The Jantzi Social Index, which tracks large-cap Canadian firms that meet a high standard of social and environmental responsibility, has seen those firms rise in value more than 41 per cent since 2006; the S&P/TSX 60 trailed at least two points behind.

 

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Defamation law

No country for libel tourism

By Justin Ling June 6, 2018 6 June 2018

No country for libel tourism

 

Canada isn’t set to become a favourite forum for libel tourists.

The Supreme Court ruled Wednesday that an Ontario court was not, in fact, the best suited to hear a defamation suit filed by a Canadian businessman against an Israeli newspaper. In doing so it allowed a stay on the proceedings.

But the decision split the bench. Justice Suzanne Côté wrote the majority decision, with Justices Russell Brown and Malcolm Rowe concurring. Justices Andromache Karakatsanis, Rosalie Abella and Richard Wagner all filed their own concurring reasons. Justices Michael Moldaver and Clément Gascon, as well as (then) Chief Justice Beverley McLachlin filed joint dissenting reasons.

While the outcome of the case might be relatively clear, the roadmap on dealing with forum selection for online libel cases is less so.

 

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Environment

The Trans Mountain purchase: Some unresolved legal issues

By Doug Beazley June 6, 2018 6 June 2018

The Trans Mountain purchase: Some unresolved legal issues

 

Given the kind of year Rachel Notley has had, you could forgive the Alberta premier for taking a small victory lap last month after the federal government went all the way for Trans Mountain.

Reacting to the Trudeau government’s announcement that it would be purchasing the existing Trans Mountain pipeline for $4.5 billion — to guarantee construction of a politically-fraught expansion to transport Alberta’s bitumen to the Pacific coast — Notley argued the purchase would put an end to B.C. Premier John Horgan’s legal attempts to frustrate the work.

“As a result of the pipeline having been purchased by the federal government, they have a form of Crown immunity which actually limits the degree to which provincial laws would apply to the project because it’s a federal project now,” Notley told reporters.

“I suspect premier Horgan will be going off to get legal advice … some folks would suggest their reference case will have less relevance than before today’s announcement.”

Is she right? Horgan hasn’t taken off the table his government’s reference case before the provincial Court of Appeal — to rule on the province’s power to restrict the flow of diluted bitumen through British Columbia. Does he know something Notley doesn’t?

 

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Trade

Trying to get Trump to listen on tariffs

By Yves Faguy June 5, 2018 5 June 2018

Trying to get Trump to listen on tariffs

Growing opposition to the Trump administration’s trade tariffs on steel and aluminum announced last week is gathering steam among U.S. domestic interests. Politico is reporting on a major lobbying effort under way, for the most part to win further exemptions and product exclusions, which appear to be piling up faster than an understaffed Commerce Department can handle. 

Meanwhile, the industrialist Koch brothers, influential in U.S. conservative circles (and erstwhile Trump allies), have promised to massively finance a sustained “multi-year, multimillion dollar” campaign in favour of free trade.

Already on the legislative front in the U.S., there is also an effort to draw up legislation that would reverse the tariffs by subjecting them to congressional approval. The problem is that to become law anytime soon, it would require the president’s signature.

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CBA influence

Abuse of dominance guidelines need work

By Kim Covert June 4, 2018 4 June 2018

 

It’s not always easy to distinguish aggressive-but-pro-competitive business practices from those that are anti-competitive. That’s why the CBA’s Competition Law Section welcomes the Competition Bureau’s draft Abuse of Dominance Enforcement Guidelines as an aid to decision-making in the business community.

That said, the Section says the guidelines could be improved to be more helpful.

“The guidelines sometimes take an inconsistent or expansive view of existing Canadian abuse of dominance jurisprudence,” the Section says.

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The profession

Groia ruling: Right approach. Wrong call.

By Yves Faguy June 1, 2018 1 June 2018

Groia ruling: Right approach. Wrong call.

 

The Supreme Court of Canada has ruled in a 6-3 decision that Toronto lawyer Joe Groia was not guilty of committing professional misconduct. The ruling establishes an incivility test for when courtroom conduct crosses the line.

“The CBA is pleased with the SCC’s decision as it underlines the importance of both civility and resolute advocacy in the administration of justice,” CBA President Kerry L. Simmons,  Q.C. said in a statement today.

Represented by Norton Rose’s Pierre Bienvenu, Andres Garin and Jean-Christophe Marte, the CBA intervened in support of a test that balances the values courtroom civility, the independence of the judiciary, and the right of litigants to fearless and zealous representation. 

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Trade

Canada’s trade fight: The legal options are slim

By Yves Faguy June 1, 2018 1 June 2018

Canada’s trade fight: The legal options are slim

 

The world’s second largest trade relationship has hit another tough patch, and it’s hard to see how it gets repaired anytime soon.

In response to the announcement of U.S. metal tariffs, Canada has announced its intention to retaliate by imposing its own countermeasures on certain U.S.-origin goods — $16.6-billion worth of U.S. imports starting July 1.  “Canada will also challenge these illegal & counterproductive measures under NAFTA Chapter 20 and at the WTO,” the prime minister tweeted yesterday.

Clearly Trudeau, who until now has gone out of his way to keep things cordial, has lost patience.  “We have to believe at some point common sense will prevail. But we see no sign of that in the U.S. action today,” he said yesterday and even allowed himself to share details of the NAFTA negotiations. Trudeau also shared details of NAFTA negotiations – normally not discussed publicly.  He explained that a new deal was close and that he had offered to go to Washington to finalize it, but it fell apart when Vice-President Mike Pence told him over the phone that the Trump administration would on including a 5-year sunset clause. Pence has since contradicted Trudeau’s version, claiming that the trade partners were not in fact close to a deal.

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Trade law

Can we do business? Making trade deals work for you

By Kim Covert May 31, 2018 31 May 2018

Can we do business? Making trade deals work for you

 

International political arrangements, such as trade deals and sanctions on particular countries, can seem like mazes full of sharp corners and stumbling blocks to the unobservant, but to the savvy in-house lawyer they’re full of opportunities.

That was the main message from members of a panel discussion at this year’s CCCA Conference in Toronto on making the most of trade agreements. International trade lawyer Heather Innes, the former counsel at General Motors, along with LexSage founder Cyndee Todgham Cherniak and Elliot J. Burger, the Director of Global Compliance with ATS Atomation Tooling Systems Inc., covered both the obstacles that international agreements create, and the doors they open.

“You’re not just lawyers, you’re strategic business partners,” Innes told the audience. In-house counsel are uniquely placed to understand laws, policies and international relationships, how they can change, and how those changes can benefit the organization.

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CBA influence

Prompt payment legislation: Focus on harmonization

By Kim Covert May 31, 2018 31 May 2018

 

When the Senate passed its Bill S-224, Canada Prompt Payments Act, last fall, the CBA’s Construction and Infrastructure Law Section expressed its concern with many aspects of the bill and suggested that the government not move forward with it before doing extensive consultations with the construction industry.

So the Section was very happy to respond to the expert review carried out by the same construction lawyers who’d done similar work for the province of Ontario, which has recently passed its new construction legislation.

So the Section was very happy to respond to the expert review carried out by the same construction lawyers who’d done similar work for the province of Ontario, which has recently passed its new construction legislation.

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Environment

Climate change compliance in a time of uncertainty

By Ann Macaulay May 30, 2018 30 May 2018

Climate change compliance in a time of uncertainty

 

This is a time of uncertainty in the Canadian climate-change compliance area, say lawyers who practise in Alberta’s energy sector.

The federal government adopted the Pan-Canadian Framework on Clean Growth and Climate Change in December 2017 in order to meet its commitments under the 2015 Paris Agreement to set national targets to cut greenhouse gas emissions. It then released the draft Greenhouse Gas Pollution Pricing Act for public comment in January this year. The Act will help to clarify what’s expected of businesses. It proposes a federal carbon-pricing system, including a levy on fossil fuels and an output-based pricing system for industrial facilities.

“The uncertainty of which provinces and territories will be subject to the new Act will last until this fall,” says Cairns Price, Senior Legal Counsel at MEG Energy Corp. in Calgary. The proposed federal legislation, expected to become law this fall, will be implemented in whole or in part next January in any province that does not have a carbon pricing system that meets the federal standard. 

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CBA Advocacy

Concerns over access rights, judicial independent and privilege

By CBA/ABC National May 29, 2018 29 May 2018

Concerns over access rights, judicial independent and privilege

 

CBA sent its submission this morning on Bill C-58 – and proposed amendments to the Access to Information Act (ATIA) and the Privacy Act  – to the Senate’s Legal & Constitutional Affairs Committee. It is identified three areas of particular concern cover issues surrounding access rights, judicial independence and solicitor-client privilege. The bill is in its 2nd reading in the Senate.

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CBA influence

Search engines’ raison d’être at the base of online privacy debate

By Kim Covert May 29, 2018 29 May 2018

 

Are search engines engaged in commercial activity? Is it practical to require them to obtain consent before gathering personal data? Is it appropriate to ask them to decide what information needs to be removed from their indexes?

These are just some of the thorny questions in the debate over online reputation, and the right to be forgotten. Three CBA groups – the CCCA, the Privacy and Access Law Section and the Children’s Law Committeerecently responded to the Office of the Privacy Commissioner’s Draft Position on Online Reputation and the only things the three wholeheartedly agreed on were that children must be protected online and that privacy laws, written for a different time and circumstance, need to be studied by Parliament.

“Privacy legislation, as well as the Canadian Charter of Rights and Freedoms, are interpreted today in a different context than when they were originally drafted,” the Sections say. “As the internet broadly, and search engines specifically, are significant sources of information for Canadians, online reputation and disclosure of personal information online are important issues for regulators, policy makers and legislatures to examine.”

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