The Power of Perspectives

The Canadian Bar Association
Environmental law

Canada’s proposed new Impact assessment: Putting science first?

By Doug Beazley November 15, 2018 15 November 2018

Canada’s proposed new Impact assessment: Putting science first?

 

Compromise is the lifeblood of working democracies. That doesn’t mean everyone has to like it. Bill C-69 — the Trudeau government’s attempt to reform Canada’s system of environmental reviews for major resource projects — is before the Senate, and making no one particularly happy.

C-69 (it’s actually a package of bills) would take the job of ordering project impact assessments away from the National Energy Board and hand it to a new body, the Impact Assessment Agency of Canada (IAAC). The IAAC is designed to not only conduct environmental assessments of large projects (such as interprovincial pipelines), but to broaden the scope of the assessments to cover the projects’ health, social and economic impacts, their effects on Indigenous peoples and on the federal government’s climate change commitments. The goal, according to the government, is to streamline project assessments through a “one project, one assessment” approach.

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Q&A

Penelope Simons on getting companies to respect human rights

By Yves Faguy November 14, 2018 14 November 2018

Penelope Simons on getting companies to respect human rights

 

This week, the Corporate Human Rights Benchmark (CHRB) published its 2018 report, concluding that most of the 100 companies reviewed are failing to live up to their duties under the UN Guiding Principles on Business and Human Rights.  Prior to the report’s release, CBA National interviewed Professor Penelope Simons of the University of Ottawa and the recipient of the 2018 Walter S. Tarnopolsky Award, recognized for her contribution to human rights, domestically and internationally, about how to address corporate complicity in human rights abuses.

CBA National: Can you give us a sense first of where we’re at in terms of corporate accountability for human rights violations?

Penelope Simons: This issue has been debated globally for decades. But in the early 2000s, the United Nations Sub-Commission on the Promotion and Protection of Human Rights adopted the Draft Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises which were submitted to what is now the Human Rights Council. The HRC rejected them. The Norms were drafted in mandatory language and were essentially a blueprint for a treaty that would impose binding legal obligations on business actors. Both states and businesses were strongly against the development of such obligations. However, the HRC did appoint, Harvard professor John Ruggie, as the Special Representative of the Secretary General on Business and Human Rights. He developed a policy framework and the United Nations Guiding Principles on Business and Human Rights (UNGPs) to operationalize the policy framework. In 2011 the Human Rights Council unanimously endorsed the Guiding Principles. This was an important step forward, to have widely accepted document addressing business and human rights. However, the UNGPs are also flawed in a number of ways.

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Practice

Working well with legal staff: Set the ground rules in the beginning

By Julie Sobowale November 13, 2018 13 November 2018

Working well with legal staff: Set the ground rules in the beginning

 

Nothing brings two people together more than email. When Jeremiah Kowalchuk started working as a lawyer, he and his seasoned paralegal, Lynette Senio, bonded over their hatred for printing emails. They decide to work in a paperless environment.

"Jeremiah and I have established a good way of communication, working together and exchanging work back and forth," says Senio, a legal assistant at Field Law. "For example, I will receive instructions from Jeremiah to draft a letter or document by email or dictation. I will then forward that drafted document to him by email. He will review and make any changes if needed and then forward the document back to me. When I get that forwarded document back, that means it’s good to go. We can essentially do this process without even exchanging a single word with each other.”

Senio and Kowalchuk are a team. Having a strong, collaborative relationship with support staff will not only benefit clients but make your practice more efficient and effective.

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Young lawyers

Escapes and opportunities: Is YLIP right for you?

By Laura MacLean November 9, 2018 9 November 2018

Escapes and opportunities: Is YLIP right for you?

 

Since high school, I’ve dreamed of having a dynamic, international career in human rights. I loved the idea of filling up my passport with stamps, learning dozens of languages and becoming a respected, unapologetic advocate for social justice. However, the stress of law school showed me I need to be near my family and friends. An international career was not in the cards for me after all. Still, I often fantasized about lighting my bar materials on fire and getting on the next flight to anywhere.

The Young Lawyers International Program is perfect for someone like me.

My craving for adventure came to life again while I was searching for post-articling work, and found out YLIP was recruiting. The program places 32 interns in ten different countries to work in law reform, human rights and access to justice for six months. I applied, underwent the rigorous interview process, and was placed at Lawyers for Human Rights in Durban, South Africa. Before you could say “Nelson Mandela,” my flights were booked, my bags were packed and I was off.

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Fintech

Canada’s cautious stance on regulating open banking

By Yves Faguy November 8, 2018 8 November 2018

Canada’s cautious stance on regulating open banking

 

When it comes to banking, Canadians tend to reach for the familiar.  Loyal to a fault, consumers here look to their primary financial institution for most products, even when they suspect they could get a better deal elsewhere.  No surprise then that few have taken notice of the open banking phenomenon sweeping across the globe, particularly in Europe, the U.S. and parts of Asia.

What is open banking? It’s an emerging model, fashioned by a mix of fintech innovation, changing consumer habits and regulatory forces, in which banks are being pressured to open up their customers’ data to third parties. This is done by allowing them to access open APIs, which offer a standard way for programmers to work with code they didn’t write, so that they can develop new and useful financial products for consumers. Those products, in turn, remove much of the hassle — known as friction — that comes with signing up new customers, and getting them to complete transactions using data collected by their banks.

For the consumers, the appeal is in getting better rates on lending rates and more transparency on financial products. 

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AI

Automation bias may be the end of us all

By Kim Covert November 7, 2018 7 November 2018

Automation bias may be the end of us all

 

Game 2, Move 37. A machine, AlphaGo, made a move in the game of Go that no human would have made.

AlphaGo itself worked out the chances of a human making that move as one in 10,000.

That 2016 game marked a turning point in the field of artificial intelligence – the machine had been able to teach itself to make such a “genius” move.

Two games later, AlphaGo’s human opponent, Lee Sedol, one of the world’s best Go players, made a move that AlphaGo did not expect – another one in 10,000 move that threw AlphaGo off its game so badly that Sedol won his first and only game of the five-game match.

One thing that stands out for the world of AI in these games is that playing against the machine made the human player better – if AlphaGo hadn’t startled him so with Move 37, Sedol might not have made his own move, which followers dubbed “God’s Touch.”

The thing that’s important about Game 2, Move 37 as far as the law is concerned, says University of Ottawa professor Ian Kerr, is that the machine making an unprogrammed move was not a matter of product liability or failure – the move was unprogrammed but not, in a real sense unanticipated.

We need new paradigms for thinking about a world where machines can teach themselves to do things humans wouldn’t, Kerr told a recent CBA Privacy and Access to Information Law conference session on artificial intelligence.

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The practice

How costing WIP will have an impact on your law firm

By Mayur Gadhia, CPA, CA November 7, 2018 7 November 2018

How costing WIP will have an impact on your law firm

 

Historically, the Income Tax Act allowed designated professionals such as lawyers, doctors, and qualified accountants to exclude the value of their year-end work-in-progress. This approach was commonly referred to as billed-basis accounting (or BBA) because this amount was included in taxable income when the client was billed. 

Last year, the federal government eliminated BBA, albeit in a phased-in manner, for all fiscal years beginning after March 22, 2017. For the designated professionals, WIP is now deemed to be inventory as required by paragraph 10 (5) (a) of the Act.  

This change on accounting and costing of WIP will have an impact on law firms.  Here is how they will be affected.

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CBA Futures

Legal futures round-up

By Yves Faguy November 2, 2018 2 November 2018

Legal futures round-up

 

Time for a quick round-up of notable trends and developments and views that highlight innovation in the legal industry.

Bloomberg Law has an analytics platform for users who want detailed information about some 100,000 lawyers at over 775 law firms and their experience in litigation. It’s not a predictive tool by any means, but helps clients get a better picture of a lawyer’s true professional experience.

Law firms could certainly learn some lessons in their approach to self-management, project management and building a corporate brand from the accountancies.  But they shouldn’t completely emulate them either, Professor Laura Empson, director of the Centre for Professional Service Firms at Cass Business School in London, told Thomson Reuters. “One of the things that’s been a problem among the Big Four is that they’ve become so effective at professionalizing management that somewhere along the way the partners as individuals have felt disenfranchised and disempowered to such an extent they haven’t necessarily retained a sense of responsibility for the leadership of the firm.

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D&O

Securing corporate accountability through economic torts

By Alexander Gay and Kirk G. Shannon October 31, 2018 31 October 2018

Securing corporate accountability through economic torts

 

Piercing a corporate veil to hold the guiding mind of a corporation accountable for wrongdoing is not easy. The legal threshold is high. However, there are other ways to go after rogue directors who step out of their corporate role and fail to act in the interest of a corporation, such as claiming liability for economic torts. Economic torts speak to commercial behaviour that offends our basic values as a society an can all be of assistance in securing corporate accountability. 

The recent UK ruling in Palmer Birch (a partnership) v Lloyd illustrates how. There is nothing unique about this case, other than how the distinct legal personality of the corporation did not dissuade the court from applying economic torts against directors personally.  

It involved an action brought by the plaintiff against two directors for inducement of breach of contract, unlawful interference and unlawful means conspiracy. The plaintiff entered into a construction contract with HHL, a corporate entity controlled by two directors, one of whom was to be the beneficiary of the work performed under the contract. The directors stopped funding HHL and liquidated the company once a substantial portion of the construction work had been completed. The directors denied liability and argued that the plaintiff’s claims were an ill-conceived attempt to pierce the corporate veil. They argued that the losses were nothing more than a poor commercial deal for the plaintiff and the claims were limited to the company.

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CBA influence

Input tax credit rules ain’t broke – careful how you fix ‘em

By Kim Covert October 30, 2018 30 October 2018

 

The CBA’s Commodity Tax, Customs and Trade Law Section was happy to respond to Finance Canada’s proposed amendments to GST/HST holding corporation rules issued in July. But it had one big question about the changes: Why?

The current rules are effective and accomplish their goal, the Section says in a letter to the Department of Finance. It notes that the courts have adopted a flexible and sensible approach to input tax credits, where GST/HST credits should be recoverable as a matter of tax credits.

“Given the current constructive state of the rules, we trust that the rationale for the proposed amendments is to clarify (and not restrict) the existing approach to ITCs for holding corporations,” the Section says. “We would appreciate, however, clarification on the rationale for the proposed amendments.”

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CBA influence

Quantum of political participation: Proposed changes remove limits for charities

By Kim Covert October 29, 2018 29 October 2018

 

Draft legislation that would lift the limits placed on non-partisan political activities by charitable organizations are a welcome change, says the CBA’s Charities and Not-for-Profit Law Section.

“These proposals will hopefully afford charities more freedom to conduct non-partisan political activities, such as public advocacy, than in the past, which we support,” the Section says in a submission to Finance Canada’s Tax Policy Branch.

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Freedom of expression

Freedom to follow: Politicians blocking their critics

By Justin Ling October 26, 2018 26 October 2018

Freedom to follow: Politicians blocking their critics

 

Facebook and Google have become unavoidable parts of modern life. Some have described the platforms as central parts of our “digital public square.”

So what happens when your city’s mayor decides to block your access to that square?

That’s the novel question being posed to an Ontario court by three prominent critics of Ottawa mayor Jim Watson, who has blocked them all on Twitter.

Ottawa lawyer Paul Champ is representing criminal lawyer Emilie Taman, union activist James Hutt, and Dylan Penner of the Council of Canadians.

All three have used the social media platform to chide their mayor, whose Twitter account serves as both his personal page and as the semi-official account of the mayor’s office. Being blocked means they can neither access his tweets nor read many of the responses they generate.

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