The Power of Perspectives

The Canadian Bar Association

The legal implications of Brexit

By National June 24, 2016 24 June 2016


After yesterday’s Brexit vote, everybody has Article 50 of the Treaty on European Union on his or her mind.  The provision allows member states to withdraw from the European Union “in accordance with its own constitutional requirements. Joshua Rozenberg discusses the (immediate) legal (and political) ramifications of the vote, following David Cameron’s resignation:

The referendum vote has immense political implications but no direct legal effect. We remain in the EU.

Of course, the new prime minister will be expected to respect the result of the referendum and, in due course, to notify the European council – which includes all EU heads of state or government – of the UK’s intention to withdraw from the EU under article 50. But we now have three months in which EU leaders can devise some sort of associate membership for the UK that just might be enough to stop that happening.

And even if the government is led by Boris Johnson and/or Michael Gove, the new prime minister would probably want to take some time before giving notice to quit the EU. That is because article 50 is a wasting asset with no emergency brake. There is nothing in the Lisbon treaty that allows a leaving state to change its mind and stop the process – although that result could no doubt be achieved by treaty amendment if the other 27 EU states agreed to support it.

So I would expect the UK’s negotiations with Brussels – ahead of an article 50 notification – to continue into next year. If there is a significantly better deal on offer, the new prime minister might choose to put it to the people – not, I suspect, by holding another referendum but by calling an early general election.

But for all the talk from Brexiteers of “taking back control,” Richard Gordon explains the irony of yesterday’s outcome:

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Conduct becoming

The Panama Papers

By Gavin & Brooke MacKenzie June 23, 2016 23 June 2016

The Panama Papers

At the time of this writing, only a week has passed since the revelation of the largest data cache release in history, 11.5 million documents spanning a 40-year period from the files of the Panamanian law firm Mossack Fonseca. It is early days in this saga, and a lot will have happened by the time you read this. But it is already abundantly clear that the story is a treasure trove of ethical issues for lawyers. Let’s consider three of them briefly.

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Closing argument

Controversy on campus

By Omar Ha Redeye June 23, 2016 23 June 2016

Controversy on campus

The Supreme Court’s 1986 ruling in RWDSU v Dolphin Delivery suggests that the Charter may extend beyond the administrative decisions made by universities, reaching into lecture halls and affecting the intellectual activities of students and professors.

This is especially true where educational policies intertwine with government mandates.

Given the increasingly close relationship between government and post-secondary institutions, this constitutional connection is even tighter. In the absence of clear statutes or definitive court decisions, however, the only clear guidelines for academic communities are the policies of the institutions themselves.

Alberta courts, for instance, have decided against universities in the regulation of anti-abortion student groups. In Ontario and B.C., though, courts held that restrictions on anti-abortion imagery fell outside the ambit of governmental policies or programs, and could be properly constrained. The lack of consensus on what is appropriate and what is not gives rise to its own problems.

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Summer issue

Creative Licence: Ashley Dumouchel

By Katya Hodge June 23, 2016 23 June 2016

Creative Licence: Ashley Dumouchel

The Artisan

"Working with wood and creating art provides me with an outlet for my creative energy and helps me relate to copyright and trademark clients on a unique level"

Ashley Dumouchel is a lawyer and trademark agent at Shapiro Cohen in Ottawa.  Her wood designs can be found at

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Legal marketplace

Deloitte makes its case

By National June 22, 2016 22 June 2016


Deloitte has released its findings that GCs are generally dissatisfied with traditional law firms. According to its study, roughly half of those surveyed would consider hiring non-traditional legal service providers.

That would include Deloitte.  Here’s a quote from Piet Hein Meeter, global managing director for Deloitte Legal:

“The legal profession is undergoing a massive transformation. We at Deloitte Legal see a clear need for a new type of service that combines legal advice with strategic advice across other disciplines. This is not currently provided by other law firms. Our clients want us to bring new solutions to the table, and that’s exactly the gap we want to fill. Our ambition is to become the law firm of the future.”

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LGBTQ inclusion in law firms

By Justin Ling June 21, 2016 21 June 2016

LGBTQ inclusion in law firms


“Law is quite a conservative field,” says Trevor McCann, laughing. “Even more conservative than accounting.”

But that conservatism isn’t preventing firms like Clyde & Co, where McCann is a partner, to take steps to ensure that their offices are meaningfully inclusive of LGBTQ lawyers and clients.

“For us, right now, it’s something we’re working on developing further,” says McCann who is based in Montreal. “That means outreach to law schools to make students well aware of their diversity initiatives, working on building an open culture within the office, and being proactive with clients.”

The effort echoes a similar one under way at Borden Ladner Gervais, which recently released its transgender inclusivity and accommodation policy to coincide with the International Day against Homophobia and Transphobia.

“We thought the timing was right to do this,” says Laleh Moshiri, the national director for diversity and inclusion at BLG.

Last week, the firm took an extra step and held a seminar at its head office (and broadcast in their offices Canada-wide) with a “focus on legal and professional obligations” providing “concrete examples of best practices for implementing accommodations and creating a trans-inclusive and supportive environment.”

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Legal innovation

Both private and public sectors must drive legal tech innovation

By Selena Lucien and Nick Sowsun June 21, 2016 21 June 2016


The rise of legal tech is a pivotal moment of change for the legal services industry that many would say is well overdue.  Though much of it is market driven, it also reflects our society’s determination to bring some order to the disorder that is the access to justice crisis.

Surprisingly, however, the mainstream discourse has remained almost silent on questions such as: what are the implications and effects of applying technical solutions to solve social and political problems? Is technology producing a particular framing of the access to justice problem? How limited is this framing? And is this framing constructed at the expense of structural considerations that genuinely underpin the access to justice crisis?

Langdon Winner’s seminal work The Whale and the Reactor highlights that technologies not only aid human activity but are also powerful forces acting to reshape the activity itself as well as well as its definition. For example, when radiologic imaging became widely available for medical practice, it allowed doctors, who were previously only able to look at the external body for symptoms, to peer inside the body and determine the cause or presence of disease or injury. This transformed not only what doctors do but also the way people conceptualize health, sickness and medical care. Similar reasoning can be applied to the entwined relationship between access to justice and technology. Technology is not merely an aid to the access to justice crisis but also a powerful agent that transforms and redefines the meaning of access to justice itself.

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The legal profession must prepare for AI

By National June 20, 2016 20 June 2016

Lord Neuberger, the president of the UK Supreme Court, delivered a speech in which he discussed new ethical challenges facing the legal profession and argued for more focus on teaching ethics in law schools.  Referring to the latest book by Richard and Daniel Susskind, The Future of the Professions: How Technology Will Transform the Work of Human Experts, he had this to say:

Let me end with two thoughts about the future. First, the effect of IT and in particular artificial intelligence, AI. In their recent book on the future of the professions, Richard and Daniel Susskind predict that, as a result of AI and the Internet, the legal (and indeed other) professions will change more in the next twenty years than they have done over the last two centuries. We are all familiar with routine work being increasingly automated as a result of electronic developments. But the book suggests that professional work which appears to involve the very human qualities of expertise, creativity and interpersonal skills will be capable of being done by robots or AI. The recent electronic victories over the human world champions in in chess, quiz games and Go seem to me to support the view that this is not at least an outlandish suggestion. Indeed, there are reports of IT systems that can outperform human beings in distinguishing between fake and genuine smiles, and in the US of an electronic program which can predict the outcome of patent cases better than patent lawyers can. The Susskinds point out that this potential development has ethical as well as employment implications and they call for a public debate on the issue. There are many who are sceptical about the Susskinds’ predictions, but there is no doubt but that they could be right. The legal profession should, I suggest, be preparing for the problems and opportunities which would arise from such an enormous potential area of development, and one of the most difficult challenges will be to consider the potential ethical implications and challenges.

Photo licensed under Creative Commons by by tsevis

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International law

State sanctions against Iran: Heavy lifting

By Emily Alderson June 20, 2016 20 June 2016


In 2012, the same year that the Harper government cut diplomatic ties with Iran, it also adopted the Justice for Victims of Terrorism Act, which allows victims to sue terrorists and those that support them, including certain foreign states, for any damages caused by terrorist acts anywhere in the world.

As the new Liberal government considers thawing relations with Iran, how much will the Conservative’s JVTA get in the way?

Indeed, Canada has slowly begun re-engaging with Iran, lifting the majority of sanctions against the country in February. Lifting the sanctions is intended to make life easier for many of the hundreds of thousands of Iranians living in Canada to move assets out of Iran. It also opens up a market of 80 million people to Canadian businesses. Global Affairs Canada is considering re-opening the embassy in Tehran, saying it is better to have dialogue with opposing countries than silence. Having an embassy might also make it easier to resolve cases like that of Homa Hoodfar, an Iranian-Canadian anthropology professor imprisoned in Iran on unspecified charges.

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CBA Futures

Legal Futures round-up: June 20, 2016

By Emily Alderson June 20, 2016 20 June 2016


Inspired by the CBA Legal Futures report on Transforming the Delivery of Legal Services in Canada, here’s our biweekly round-up of noteworthy developments, opinions and news in the legal futures space as a means of furthering discussion about our changing legal marketplace.

A rash of big law firms across the U.S. are raising junior associate pay after trend-setting firm Cravath, Swaine & Moore LLP bumped up starting salaries to $180,000 USD. Stephen Poor, quoted in CBA National, argues the increase will push firms to embrace new staffing models to reduce costs. Some clients are pushing back against the raises, saying they won’t pay so much for inexperienced lawyers. American law graduates do not have to article and can start as associates after passing the bar exam.

UK-based Herbert Smith Freehills has launched a program to facilitate re-entry to the profession for female lawyers who’ve taken extended time away from practice. The OnRamp Fellowship is a one-year program that gives returning women “tailored support and on-the-job training.” Herbert Smith will offer the program in its UK and Australian offices following a successful pilot edition in the U.S.

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Legal innovation

The Pitch: Expert judges survey the field

By National June 16, 2016 16 June 2016


The Pitch, the first-ever legal innovation competition hosted by CBA and LegalX is off to a rousing start, with 31 submissions received by midnight on Wednesday.

It’s now up to the committee of experts to survey the field and deliver, by June 23, the names of the five entrants who will go on to compete at the CBA Legal Conference in Ottawa in August.

The virtual judging panel is replete with names familiar to those in the legal futures/tech world. They are:

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The extractive sector

New disclosure law and payments made to indigenous communities

By Stephanie Porter June 15, 2016 15 June 2016

New disclosure law and payments made to indigenous communities


The purpose of the federal Extractive Sector Transparency Measures Act is clear: by requiring the disclosure of fees paid by developers to governing bodies, Canada is fighting corruption and bribery in the oil and gas and mining industries, both within its borders and abroad.

When and how that legislation should apply to Canada’s indigenous communities, however, is far from obvious, according to Sandra Gogal, a partner at Toronto’s Miller Thomson.

While the bulk of the ESTMA legislation came into force on June 1, 2015, the act included a two-year deferral for reporting payments made by industry to indigenous governments. That extra time is important, Gogal told lawyers gathered at the CBA National Environmental, Energy and Resources Law Summit earlier this month in St. John’s. She urged colleagues to “not necessarily jump on the bandwagon” and disclose all such payments.

“The legal landscape across Canada as it relates to aboriginal rights is quite diverse,” Gogal said speaking. “Looking at the nature of these payments, and the impact-benefit agreements and other commercial arrangements the extractive sector enters into with these communities, it is very complicated to determine if they need to be exposed.”

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