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What’s up for debate at the CBA Annual General Meeting

Resolutions to be debated in February address the implementation of the UN Convention on the Rights of the Child, preventing the misuse of NDAs in cases of abuse, improving data collected on judicial applicants, and promoting French for better access to justice.

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Urging the Canadian government to walk the talk on children’s rights

Ten years ago, the Canadian Bar Association called on the federal government to table its detailed action plan to improve the country’s implementation of the United Nations Convention on the Rights of the Child. A resolution to be debated at the 2023 Annual General Meeting of the CBA will exhort Canada’s government to “commit to tabling a detailed Government Action Plan in response to the recommendations that Canada received for improving its implementation of the Convention on the Rights of the Child within one year of the release of those Concluding Observations, by June 9, 2023.”

Even so, despite being a key proponent of, and one of the first signatories to, the Convention ratified in 1991, Canada has struggled to implement it. There is a certain level of frustration behind the 2023 resolution, moved by Cheryl Milne of the David Asper Centre for Constitutional Rights at the University of Toronto, and seconded by Caterina Tempesta, an executive member of the CBA Child and Youth Law Section. 

Should the resolution be adopted, the plan is to send a letter to the Prime Minister and other government officials without delay to renew our exhortation to create a government action plan to fully implement the Convention. 

The resolution is sponsored by the Child and Youth Law Section of the Canadian Bar Association. The Section wrote several times to the UN Committee on the Rights of the Child, in February 2020October 2020 and April 2022, as part of the Committee’s review of Canada’s fifth and sixth combined reports, outlining particular issues from a legal perspective.

Have your say on the discussion board.

Reining in non-disclosure agreements

Non-disclosure agreements, or NDAs, are legally enforceable agreements that prevent parties from disclosing information. They are especially common in workplaces where employees have access to sensitive or confidential information, including trade secrets. Over the years, they have also been used to silence victims of misconduct and whistleblowers. A resolution up for debate seeks to restrict the use of NDAs to the protection of intellectual property. 

“We are advocating to restrict the use of non-disclosure agreements (NDAs) to their original, legitimate purpose – protecting trade secrets,” explains Jo-Anne Stark of Stark Solution, who is moving the resolution. “Not covering up abuse, harassment, fraud, discrimination or other misconduct which the victim should always be able to talk about for their own healing and that others should have warning about. NDAs are frustrating the purpose of movements like #MeToo and Black Lives Matter which encourage individuals to speak up about abuse by forcing victims to agree to silence.”

This problem extends to the workplace as well. Employers in Canada have an obligation to investigate complaints of harassment or discrimination at work, as well as to protect the health and safety of their employees. The widespread use of NDAs to silence a victim of misconduct or a whistleblower protects an employer’s reputation at the expense of the victims, who are prevented from discussing their experiences with family, friends, co-workers or therapists.

“The legal profession has, for many years, used NDAs as a standard practice in settling lawsuits and other complaints,” Stark adds, “but we are learning that the impact on individuals and organizations is to cover up wrongdoing and endanger others. Now we know differently, we should act differently.”

The resolution is supported by the Access to Justice Subcommittee of the CBA and the Social Justice Section of the B.C. Branch.

Have your say on the discussion board.

Improving data collected on judicial applicants

A third resolution at the AGM seeks to improve “the collection, analysis and reporting of intersectional data” on judicial applicants in Canada. 

The CBA has long supported greater diversity in the legal profession, including on the bench. The legal system needs to be representative of the population it serves and while we applaud every appointment that increases diversity on the bench, much work remains to be done, including in helping candidates from equity-seeking groups get ready for the judicial application process. 

Another low-hanging fruit is to improve the self-identification data of judges and judicial applicants collected by the Office of the Commissioner for Federal Judicial Affairs Canada. This data does not cross-reference indigeneity, race, ethnicity, disability, gender, gender expression or sexual orientation. 

We know that individuals who live with, for instance, racial and gender discrimination, or any combination based on their intersectionality, face disproportionately greater systemic barriers to access to justice because of the mutually amplifying effects of more than one kind of discrimination. 

“We’ve put this resolution forward because we believe it’s important for the Canadian judiciary to represent the communities it serves,” says Olivia Coombe, a first-year student at the Lincoln Alexander School of Law in Toronto. “Cases before the courts often reflect complex lived experiences of those with intersectional identities. Greater insight into the demographic data of judges will help us better understand to what extent these perspectives are represented (or under-represented) on the bench.” 

Fellow law student Rosalyn Elizabeth Martin also worked on the resolution, which is sponsored by the Judicial Issues Subcommittee and Equality Subcommittee of the Canadian Bar Association. 

Have your say on the discussion board.

Promoting language rights and French in the CBA

This resolution, proposed by the national French-Speaking Common Law Members Section, asks that the CBA reiterate that it is essential for Canadians to have equal access to justice and the law in both official languages and that it upholds the language rights of French linguistic minority communities. The proposed resolution reiterates the importance of the use of French within the CBA and urges the Association to do its best to ensure that its internal communications are always written in French and English. Finally, it is also urged that CBA members have access to French language continuing professional development.

The resolution is moved by Section Chair Pierre Permingeat, and seconded by Denis Frawley, the Section’s secretary-treasurer. Its adoption would, in the view of the Section Executive, demonstrate the importance of the use of French within the CBA tangibly and would assist the Association, its staff and the French-Speaking Common Law Members Section in promoting the principles underlying access to justice in French.

Have your say on the discussion board.

CBA Bylaw amendments

This proposed resolution from the Board of Directors seeks to amend inconsistencies between CBA Bylaw No 1 and General Regulations, namely with respect to some resolution-related tasks and responsibilities that have been undertaken by the Policy Committee since 2017. The amendments would also move responsibility for the Enterprise Risk Management Subcommittee to a renamed Audit and Risk Committee. The board has adopted concurrent amendments to the General Regulations to realign the responsibilities of that committee. Also, it is proposed that the special class of CBA membership established in the bylaw for scholars be changed to a fee category – which would be more in line with other members afforded fee reductions due to special circumstances.

Have your say on the discussion board.