The Power of Perspectives

The Canadian Bar Association
Corporate counsel

Reining in budgets: how to weather budget cuts

By Jim Middlemiss September 29, 2017 29 September 2017

Reining in budgets: how to weather budget cuts


Wendy King, Vice-President, Legal, Risk and Governance, and Corporate Secretary at Capstone Mining Corp. in Vancouver, has seen the highs and lows of economic cycles. King, who has built her in-house career in the mining and forest industries, knows firsthand what happens when commodity prices turn south—survival quickly becomes a fight of the fittest.

“You feel the impact faster,” says King (pictured above), whose employer is a base metals miner with a focus on copper. “It’s much more cyclical and your strategy is different depending on the resource,” she says of coping with an economic downturn.

Whether it’s minerals, oil or lumber, one thing is certain when prices turn—budget cuts are the order of the day.

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Trade

Bombardier trade dispute: "We appear to be entering a new phase"

By Justin Ling September 28, 2017 28 September 2017

Bombardier trade dispute: "We appear to be entering a new phase"

 

In the most recent trade spat in the era of “America First” the U.S. Department of Commerce has slapped a 219 percent anti-subsidy duty on Bombardier's C Series aircraft, to punish what it views as illegal states subsidies from Canadian and U.K. governments.

“It’s an astounding number,” says Riyaz Dattu, a partner specializing on international trade with Osler.

The decision, spurred by a complaint from Boeing, has already rocked the already-beleaguered Quebec aerospace company, as their shares have tumbled over the past day.

As Dattu points out, it was expected that the U.S. Department of Commerce would find “some level of subsidization.” But the figure announced by Washington on Wednesday is staggering, even though it may yet be revised down and, eventually, set aside by a NAFTA panel.

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CBA advocacy

The CBA on the privacy of Canadians at airports and the border

By CBA/ABC National September 27, 2017 27 September 2017

 

Information collection and sharing at the border is necessary to ensure the security of Canadians. But collecting and sharing too much of it, or information that is unreliable, can also be harmful to them. It’s why the CBA is advocating for striking a more appropriate balance between national security and preserving our individual privacy rights and freedoms.

In the above video, we interviewed Cyndee Todgham Cherniak and David Fraser, who  are presenting a CBA submission today prepared by the Privacy and Access, Immigration Law, and Commodity Tax, Customs and Trade Sections, as well as the Canadian Corporate Counsel Association (CCCA) and the Ethics Subcommittee of the Policy Committee of the Board.  They are appearing before the House of Commons Standing Committee on Access to Information, Privacy and Ethics.

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Legal marketplace

The Big Four are rivalling global law firms

By Yves Faguy September 27, 2017 27 September 2017

The Big Four are rivalling global law firms

 

Last week, PricewaterhouseCoopers announced it is opening a U.S. law firm in Washington, D.C. The firm will operate as an affiliate, ILC Legal, and will work primarily on international corporate restructuring matters. Its lawyers are being sold as “special legal consultants”, there to advise on foreign law, not U.S. law. It’s hardly the first time a member of the Big Four has made a push into the legal services space (Deloitte, E&Y and KPMG all have legal arms). But Nicholas Bruch writes that PWC seems to have dropped any pretence about keeping things on the low:

PwC’s decision to launch a US office focused on legal services is not a quiet move. The Firm has US offices. In fact, they already have two offices in Washington D.C. They could have easily built legal marketing and business development resources in their existing offices. Instead they established a US law firm. The company knew such an announcement would draw the attention of the legal press – this is almost certainly why they announced it in the manner in which they did. They also knew it would draw attention – from law firms and regulators. They clearly believed the benefits outweighed the costs.

Such boldness is new from PwC and from the Big Four. If PwC’s new office signals anything, it is that the period of cautious expansion has come to its natural end. Law firms should expect more “major announcements” from the Big Four in the future.

 

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Legal innovation

Analytics can make your firm more profitable and more competitive

By James Careless September 26, 2017 26 September 2017

Analytics can make your firm more profitable and more competitive

 

 

Canada’s big law firms have a reputation for being very conservative when it comes to change. “As one top firm said to us early on, ‘We don't like to be first in,’” said Hersh Perlis, Director of the Legal Innovation Zone at Ryerson University. “Heck, we don't like to be second,” Perlis continued: “We like to be third!"

It’s true that not all change is progress, and sometimes the canny bird that doesn’t rush in early gets a good worm.

That said, one change that is developing a proven track record for law firms is analytics. Analytics is about compiling information about how the firm currently does business, then analyzing that data to find ways to change practices to operate more efficiently – and more profitably.

For example, a law firm can figure out how much billable work is currently being done by partners, then run an analysis to see how much of that could be performed by lower-cost non-partner lawyers instead, and reassign the workload accordingly. Such a reassignment can reduce the firm’s expenses , thus improving the bottom line without the need to increase fees.  If the cost reductions are large enough, the firm can even cut client fees while still earning more profit than before.

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CBA Influence

Pensions across borders

By Kim Covert September 25, 2017 25 September 2017


There are few things in life more likely to make most of the population close their eyes, plug their ears and sing “la-la-la” than a discussion about pension funding. Many of us have pensions and look for some sort of financial stability in retirement, so it’s amazing how many people are ready to leap with faith on the idea that there will be enough in the pot cometh the hour.

So if you’re tempted to look elsewhere and hum during this next bit, rest assured that the CBA Pensions and Benefits Law Section is taking care of business.

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Criminal law

Confidential informants: Widening the circle of privilege

By Justin Ling September 22, 2017 22 September 2017

Confidential informants: Widening the circle of privilege

 

Are confidential informants outing themselves to evade prosecution? If so, how should the courts step in to strip them of that privilege? Even if they haven’t, how do you prosecute an informant once they’ve identified themselves as such? 

That was the question before the Court of Queen’s Bench of Alberta earlier this month. 

Here’s the scenario: Police charge a suspect. During the first interview, the suspect reveals information that could later be used at trial. But, during that first interrogation, the suspect also reveals he’s a confidential informant, a fact until then unknown to the arresting officers. 

“The Crown faces a conundrum,” writes Justice J.A. Antonio assigned to the perplexing case. “If it includes the interview, redacted or unredacted, in the disclosure package for the criminal trial, it will effectively be informing defence counsel that Named Person A is a confidential informant.” 

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Litigation

Expert shopping: Paying the price

By Alexander Gay September 21, 2017 21 September 2017

Expert shopping: Paying the price

 

Expert shopping is an all-too-common practice that undermines the legal system as a whole.  It can it result in egregious miscarriages of justice and undermines the confidence in the judicial system.

In 2015 the Supreme Court sounded warning bells on the misuse of expert evidence in its White Burgess ruling and opened the door for challenging witnesses at the voir dire stage for bias. But we have to consider more radical solutions to temper what can only be described as an unsavory practice by counsel.  The manner in which expert evidence is handled in the United Kingdom offers some clues that may assist us in tracing a path forward.      

The root of the problem is that we pay experts to provide testimony.  When counsel do not get full co-operation, or receive evidence that is not as favourable to their case as they would like, they can move on to the next expert and bury the first expert’s conclusions in his or her files.  Litigation privilege shields them from informing the court on the number of experts that have been consulted.  

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CBA influence

The impact assessment regime: A review of the review of the review

By Kim Covert September 21, 2017 21 September 2017

 

Having a clear, predictable federal regime for impact assessments is just the first step toward creating a process that will restore Canadians’ trust in the system and get resources to market. That protocol must also be sufficiently funded and resourced, say the CBA Aboriginal and Environmental, Energy and Resources Law Sections in response to an expert panel’s report released this summer.

The two CBA Sections were also among those who contributed to the report with a submission made to the expert panel during its consultation process in December 2016. 

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Big picture

Putting a price on carbon

By Yves Faguy September 18, 2017 18 September 2017

Putting a price on carbon

 

U.S. President Donald Trump has signalled his administration’s intention to pull out of the Paris Climate Accord .  Meanwhile, the number of carbon pricing initiatives implemented or scheduled has almost doubled over the past five years, according to Carbon Pricing Watch 2017. Here’s a look at current pricing regimes.

 

 

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Cover story

Her way: Profile of a transgender lawyer

By Beverley Spencer September 15, 2017 15 September 2017

Her way: Profile of a transgender lawyer

 

She wears a conservative navy blue suit and a pink-striped blouse. Her brown hair is lightly streaked and clipped up with a comb and her only jewellery is a simple silver necklace and a plain band on her right hand. Beige eyeshadow highlights her expressive brown eyes and she wears pale pink lipstick. Slim with delicate features, she has a pretty face.

It’s usually inappropriate to focus on the appearance of interview subjects unless they’re Hollywood actors or members of the Royal Family. But Marie Laure Leclercq used to pack her female identity into a suitcase that she carried in the trunk of her car so she could change out of her “suit of armour” when the pain of living a lie as a man named Philippe became overwhelming. Her ability today to live openly and proudly as a trans woman is a personal and professional victory. Her struggle to get to that point is the defining narrative of her life.

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In person

Getting to know Ranjan Agarwal

By CBA/ABC National September 15, 2017 15 September 2017

Getting to know Ranjan Agarwal

 

The winner of this year’s CBA Young Lawyers Pro Bono Award, Ranjan Agarwal has been described as a “thought leader” when it comes to a lawyer’s duty to advance the cause of access to justice. He is the past president of the South Asian Bar Association of Toronto and a partner at Bennett Jones LLP.

N: Who has had the biggest influence on you and why?

RA: My parents – they immigrated to Canada with almost nothing, all so their children could have a future where merit not birthright decided your destiny. Eric Hoaken – the best lawyer I know, and my mentor and champion, both as a lawyer and father. Justice Russell Juriansz – the first South Asian on the Ontario Court of Appeal, and lion of the human rights bar.

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