The Power of Perspectives

The Canadian Bar Association
Canada Summer Jobs

Concrete challenge: Another fight over the Canada Summer Jobs attestation

By Beverley Baines June 29, 2018 29 June 2018

Concrete challenge: Another fight  over the Canada Summer Jobs attestation

 

The constitutionality of the Canada Summer Jobs attestation requirement returns to the Federal Court in Sarnia Concrete Products Ltd’s application for judicial review after Service Canada denied it a grant to fund one student job. That was because the corporation refused to make the attestation that it respects the Charter of Rights and Freedoms, as well as other rights, including “reproductive rights, and the right to be free from discrimination on the basis of sex, religion, race, national or ethnic origin, colour, mental or physical disability, sexual orientation or gender identity or expression.”

Instead, Sarnia Concrete attached a letter claiming the attestation requirement violated its Charter rights to the freedoms of conscience, opinion, belief, thought and expression. The contention is almost identical to the one made unsuccessfully in January when the Right to Life Association of Toronto applied for an interlocutory injunction to stay the addition of the new attestation requirement. The only difference is the Association also claimed equality rights.

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CBA influence

Taking leave: Federal and provincial parental leave allowances may differ

By Kim Covert June 28, 2018 28 June 2018

 

The storybook version of new parenthood is a glorious nesting time in a tidy house with a baby who sleeps long enough for you to sleep and (if you want a longer bonding period) a choice to stretch Employment Insurance payments for 61 weeks.

The reality can be much different: a long delivery, recovery not improved by lack of sleep – and who needs to shower more than once a month anyway? And then finding out that while the federal government may let you choose up to 61 weeks of parental benefits, your province or territory has no corresponding right to parental leave for that long, meaning you’re going to get a lot less money than you expected, over a shorter period of time.

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Legal education

Why international law should be part of every law grad’s education

By Erika Schneidereit June 28, 2018 28 June 2018

Why international law should be part of every law grad’s education

 

The curriculum of law schools across the country is designed with this question in mind. While some fundamental courses (contracts, criminal law, and torts) are perennial staples of Canadian legal curricula, subjects like international law are notably absent from the program requirements. But are new law graduates at a disadvantage without a faculty-mandated understanding of international law? Or should Canadian law schools focus on equipping their students with more “traditional” tools of the trade?

Few law schools in Canada deem international law worthy of “required course” status. Of the 19 Canadian law schools offering common law programs, only four (the University of British Columbia, University of Toronto, University of Windsor, and Université de Montréal) require students to receive some form of international legal education.

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CBA influence

C-58 Update: The government should reconsider its position on solicitor-client privilege

By Kim Covert June 27, 2018 27 June 2018

 

The legal profession will have to step up the pressure to protect solicitor-client privilege, based on the latest communication from the federal Justice Minister.

Seven months after meeting with a delegation that included officials from the Federation of Law Societies of Canada and the CBA, and six months after receiving a submission from the Privacy and Access Law Section on Bill C-58, Justice Minister Jody Wilson-Raybould has written to President Kerry Simmons, Q.C., to politely disagree with the CBA’s position on solicitor-client privilege.

Clauses 15 and 50 in the proposed amendments to the Access to Information Act and the Privacy Act would give Information and Privacy Commissioners unfettered access to records that are withheld by the head of a government institution on the basis that they are protected by solicitor-client privilege, professional secrecy or litigation privilege.

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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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