Legal Insights & Practice Trends

The Canadian Bar Association
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No hiding behind the Swiss Verein

By National July 31, 2015 31 July 2015

Recently, a U.S. International Trade Commission judge disqualified Dentons US LLP from representing Cleveland-based RevoLaze LLC, in a patent suit against Gap Inc. Gap had filed the motion to disqualify arguing that it had long been a client of Dentons Canada, which placed the firm in a conflict of interest. Citing ABA Model Rule 1.0 in his ruling, Judge Charles Bullock rejected Dentons’ argument that the Swiss Verein structure under which the global firm is organized – with no sharing of revenues or pooling of profits among legally independent member firms – essentially established an “ethical screen” between Canadian and U.S. entities. His conclusion:

Dentons holds itself out to the public as a unified global law firm in order to attract business, and Dentons’ continued representation in the face of a direct conflict would both contradict this public image and negatively impact the law profession as a whole.

Collette Corser calls the decision “alarming” for other Swiss Verein law firms:

The fact that Judge Bullock relied on the marketing perception rather than the independently run legal entities of the various Dentons branches may give other verein structured law firms pause in how they continue their operations. As Dentons recently issued a statement that it has an “acute” interest in undoing this disqualification order, we can expect to see more of this issue in the near future.

So will the popularity of Swiss Vereins be short lived?  Not necessarily, writes Mark Cohen. and they may be suitable for some firms. But it makes the burden of managing conflicts more difficult:

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Law of evidence

Can software be a substitute for expert opinion?

By National July 30, 2015 30 July 2015

Commenting on a recent Alberta Court of Appeal ruling turning on a construction dispute, Shaun Fluker considers the impact of electronically generated information on the law of evidence:

Electronically generated information is not a new concept for the law – but I do think the capacity of the internet and ever-increasing reliance on computers is stretching these issues into new territory: Consider the proliferation of Facebook or Twitter to communicate, and how email has almost replaced traditional means of information delivery. These mediums have and will continue to require some adjustments to traditional ways in the law.

One issue the Court looks at here is the reliability of mechanically generated records. A primary objective of the law on evidence is to screen out unreliable information. The Court observes that computer-generated records are generally admissible because of an inherent reliability, even though we are unable to precisely examine how the information is generated, and the person seeking to rely on this information does not have to prove the underlying processing technology works. The disputed evidence here consisted of survey data collected by electronic means and compiled in software, and the Court concludes this information easily passes the test for reliability (at paras 17 – 19).

Photo licensed under Creative Commons by Paul L Dineen.

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Employment law

The letter of the contract

By Kim Covert July 30, 2015 30 July 2015

If you’re fired and then immediately rehired, are you entitled to severance pay?

That depends on the wording in your employment contract, according to an Ontario arbitrator who awarded severance pay to the former (and current) police chief and deputy police chief in Peterborough, Ont.

Some people in the city are hopping mad about the award – estimates differ but some say it comes to a total of about $400,000, and the mayor was quoted as saying it was closer to $500,000.

The issue came up when the city’s police service was de-amalgamated and then reconstituted under a new board. The chief and deputy chief both had their employment terminated on Dec. 31, 2014, and were rehired as of Jan. 1, 2015, with no interruption in benefits.

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Supreme Court of Canada

An unconventional but welcome pick

By Justin Ling July 29, 2015 29 July 2015

An unconventional but welcome pick

Though the announcement of Canada’s newest appointment to the top court stirred some mild controversy in the national press, Supreme Court-watchers are rather more optimistic about the unconventional — albeit expected — pick.

Russell Brown — usually referred to as just “Russ” — was appointed from the Alberta Court of Appeal, after a brief stint on that bench, and was previously Associate Professor and Associate Dean at the University of Alberta. Brown previously served as Associate Counsel at firms in Alberta and British Columbia — Miller Thomson LLP, Carfra & Lawton and Davis & Company, according to a release from the Prime Minister’s Office.

But the job that has drawn the most attention — and which is not mentioned in the government’s announcement about his appointment — was on the advisory board of the Justice Centre for Constitutional Freedoms.

“The free and democratic society which the Canadian Charter of Rights and Freedoms holds out as our ideal can only be fulfilled by honouring and preserving Canada’s traditions of freedom of speech, freedom of religion, freedom of association, other individual rights, constitutionally limited government, the equality of all citizens before the law, and the rule of law,” the organization’s mission statement reads on their website.

“And yet these core principles of freedom and equality continue to be eroded by governments and by government-funded and government-created entities like Canada’s public universities, and human rights commissions.”

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Legal profession

Statistics in the legal profession

By National July 29, 2015 29 July 2015

Statisticians are often called upon to inform the credibility of evidence introduced in court, and as Eric Posner points out, the term “statistically significant” makes its way frequently into court opinions and law journals.  The obvious problem, in his view:

Few lawyers and hardly any judges have statistical training or more than a rudimentary understanding of statistics. This is all too evident in judicial opinions. Law schools are just beginning to catch up–by hiring people with statistical training–but haven’t figure [sic] out a way to give students usable statistical knowledge.

Tim Hartford, in a recent column, illustrates the devastating consequences poor handling of statistical tools can have on trials, particularly in criminal matters:

Consider the awful case of Sally Clark. After her two sons each died in infancy, she was accused of their murder. The jury was told by an expert witness that the chance of both children in the same family dying of natural causes was 73 million to one against. That number may have weighed heavily on the jury when it convicted Clark in 1999.

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Quebec's transparency law for the extractive sector

By National July 29, 2015 29 July 2015

Ten days after the federal Extractive Sector Transparency Act came into force, imposing transparency measures and reporting obligations on the payments made make to foreign governments (as well as aboriginal groups) by the oil & gas and mining industry, the Quebec government tabled a similar bill (Bill 55). Erik Richer La Fleche and Roger Forget offer a few reasons why the province is planning to adopt a law with “no substantive differences between the two statutes,” beyond not wanting to cede power over its lawmaking in matters dealing with natural resources:

Bill 55’s main objective is not to fight corruption in remote locales. Rather, the main purpose of Bill 55 is to facilitate the development in Quebec of oil, gas and mining projects. A rapidly aging Quebec population content with the status quo has tended in recent years to be hostile to new extractive and industrial projects. Indeed, it might be said that Quebec has a bad case of NIMBYism. What the Quebec government is trying to do is increase the social acceptability (social license) of projects by providing objective information to its population. Experience has shown that local populations properly informed of the tangible benefits offered by projects are far more likely to support them. The Quebec wind power industry is a case in point. Quebec is currently working on a social acceptability policy and Bill 55 is an essential building block of that policy.

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The judiciary

Remaking Canada's judiciary

By National July 28, 2015 28 July 2015

Léonid Sirota reacts to Sean Fine’s weekend article on how the Harper government is remaking the judiciary in Canada:

The one disturbing fact that Mr. Fine presents is that some sitting judges actively lobby the government for promotions. Such lobbying, it seems to me, creates a real danger that the judge will try, whether consciously or not, to ingratiate himself with the government in his or her decisions. In other words, it creates an appearance of bias if not actual bias. Judges should strive to remain above such suspicions. The possibility of promotion is a weak spot in the arrangements protecting judicial independence, and judges themselves should not be exploiting it.

There is nothing improper, however, in a government seeking to appoint judges with whose ideological leanings it is comfortable. Of course, judicial appointments should be merit-based ― in the sense that every person appointed to the bench should deserve to be, by virtue of his or her accomplishments and character. But that’s just threshold. Ideology, in my view, can properly be taken into account in deciding whom to appoint among the candidates who can get over that threshold. (It’s worth noting that, as Mr. Fine points out, the committees that screen applicants for judgeships rate many more as “recommended” ― and used to rate more as “highly recommended” when that was an option ― than there are positions available).


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Mitigating the perils of international child abductions

By Senator Raynell Andreychuk July 28, 2015 28 July 2015

International travel and transnational marriage have become increasingly common.

So has divorce.

When a relationship falls apart, it is not unusual for one or both parties to want to return to their country of origin. In a marriage breakdown, children can be the issue of discord, with the child’s best interest being lost.

When there are children involved, and one parent decides to bring the children from the relationship along without the consent of the other parent, it can lead to complex legal problems, requiring coordination between different jurisdictions, as well.

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Supreme Court

Alberta’s Russell Brown newest Supreme Court justice

By Kim Covert July 28, 2015 28 July 2015

Prime Minister Stephen Harper announced his latest Supreme Court appointment late on Monday afternoon – Justice Russell Brown of the Alberta Court of Appeal.

Brown, appointed without the Parliamentary approval process Harper instituted in 2006, replaces Justice Marshall Rothstein, who was Harper’s first high court appointee. Rothstein retires as of Aug. 31.

He is the second of the nine judges from Western Canada – the other is Chief Justice Beverley McLachlin. Seven of the nine are Harper appointees.

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Prison law reform

By Justin Ling July 27, 2015 27 July 2015

Prison law reform

After nearly ten years in power, the Harper government is looking back on its legacy and pointing to its criminal justice reforms as one of its primary accomplishments.

But while the crime rate has continued to fall as those reforms have come into force, there are mounting concerns about the state of Canada’s prisons. Legal experts in the area are even pushing the idea that  Charter rights of Canada's prisoners are being violated as a consequence. 

Now, the Canadian Bar Association is looking to address some of these concerns. At the annual general meeting in August, the CBA council will be debating four resolutions that will set the association’s position on prison reform.

If adopted, one will formally request that all levels of government engage in legislative changes that “clearly restrict and regulate the use of solitary confinement in Canadian correctional institutions,” and make sure those regulations are followed. Another is requesting that the federal government ensure that it is meeting its own commitments under the Corrections and Conditional Release Actwhich guarantees prisoners’ access to medical care, especially mental health services.

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Cyber crime

The Ashley Madison affair and our age of digital insecurity

By Michael Motala July 24, 2015 24 July 2015

The Ashley Madison affair is a familiar tale these days. A large global corporation crippled by a data breach, and the public relations calamity sends shockwaves through the global press. Public trust in the company evaporates. Stocks will take a hit. It's off with the heads of a poor few corporate executives. If other well-publicized breaches are anything to go by (think of the Target fiasco), this could come with a serious price tag.

Hackers are imposing ever-growing costs on the state and market’s bottom line. Some estimate that the price is approximately one percent of GDP. Global corporations and banks are investing billions in protecting their information assets. The cyber-security industry is flourishing as a result. But Ashley Madison’s breach is noteworthy because of the social cost it carries —assailing marital lives and the values of constitutional democracy.

We live in the age of information insecurity. So what are we, the public, to make of our brave new digital world? Global corporations can be brought to their knees at the click of a button. Governments are shamed and blamed whenever data is disclosed. Julian Assange and Edward Snowden command some popular respect because of the purportedly noble and democratic object of their disclosures. But Ashley Madison’s assailants are criminals and terrorists by any rational definition. And it is terrifying because this is a sign of things to come.

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Legal insurance

Legal expense insurance: Devil’s in the details

By Kim Covert July 23, 2015 23 July 2015

Legal expense insurance is either a no-brainer or a head-scratcher, depending on your expectation of needing a lawyer based on the way you live your life in general – most law-abiding citizens with uncomplicated lives don’t think they’ll need legal help; on the other hand, according to the CBA report Reaching Equal Justice, most of us don’t recognize a legal issue when we see one.

The CBA passed a resolution in 2012 to work with legal expense insurance providers and government to promote the insurance as a way of increasing access to justice for the Canadian middle class, and wider adoption of LEI was one of the targets of our 2013 report. Canadians spend about $11 million a year on LEI, mainly in Quebec, the report says; in contrast, 40 per cent of all Europeans have it, as do 59 per cent of people in the U.K., and it’s actually mandatory in Sweden.

LEI is popular in Europe and provides basic access to legal assistance for people who can afford to buy the insurance, often in conjunction with home insurance or tenant insurance policies.

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