The Power of Perspectives

The Canadian Bar Association
Internet law

Extra-territorial rulings are showing their limits

By Yves Faguy November 20, 2017 20 November 2017

Earlier this month, a U.S. District Court in California granted Google's request to block enforcement of the Supreme Court of Canada's decision, in June, upholding an injunction against the internet giant forcing it to de-index a website from its global search results. The SCC ruling was the culmination of a lawsuit begun by Equustek Solutions, Inc. against a rival hardware distributor, for violating its trade secrets and other IP rights.  Google’s position following that was that the Canadian order to de-index — one that has extra-territorial reach, no less — is unenforceable in the U.S. because it violates the country’s constitutional right of freedom of speech.

What’s the big deal?

Well, a god number of legal experts on this side of the border – including some who were critical of the June ruling –are saying that the Supreme Court of Canada is not getting the respect it deserves from the California court. Barry Sookman calls it an “unfortunate precedent,” given the global nature of Google’s operation:

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CBA Influence

Three pages to storm the CASL

By Kim Covert November 20, 2017 20 November 2017


There’s more wrong with Canada’s Anti-Spam Law than can be dealt with in a three-page submission. So it is problematic that the House of Commons Committee on Industry, Science and Technology has limited the statutory review of the law in both time and space, three CBA Sections say in their submission.

“The time-limited review by the House of Commons Committee and the three-page limit on submissions is inadequate to address the complexities and challenges of CASL in its current form, and the requirement for a statutory review does not contemplate such a limited process,” says the submission, produced by the Privacy and Access and Competition Law Sections, as well as the CCCA. The Sections advise that further consultation is necessary in order to achieve CASL’s objectives.

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CBA Influence

Yes, but no: Well-intended Bill C-51 would not improve justice in sex assault cases

By Kim Covert November 20, 2017 20 November 2017


Changes to the Criminal Code’s sexual assault regime in Bill C-51 threaten to upset the ability of an accused to provide a full defence, suggests the CBA’s Criminal Justice Section.

The aim of the proposed bill is to remove unconstitutional or obsolete sections from the Criminal Code, a move that the Section supports. When it comes to other parts of the bill, those dealing with sexual assault cases in particular, “the CBA Section believes that much of what is proposed would fall short of improving justice for either complainants or accused,” it writes in a letter to the Chair of the House Committee on Justice and Human Rights.

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The practice

Are you ready for your close-up? Prepare before reporters come calling

By Ann Macaulay November 16, 2017 16 November 2017

Are you ready for your close-up? Prepare before reporters come calling

Most young lawyers would consider themselves lucky to be the person holding the files in the background of a courthouse media scrum, but there could come a time when they’re the ones being interviewed. Avoid the typical deer-in-the-headlights look by preparing well in advance of a potential call by a reporter.

By virtue of their training lawyers tend to be better able than most to speak about a particular topic. But dealing with the media is different than stating your case in front of a judge.

 “Lawyers have important things to say and they should be saying them,” says Jana Schilder, co-founder of boutique agency The Legal A Team in Oakville, Ont. But media relations is a unique set of skills, she adds, and there are critical things that lawyers need to know about how the media operate.

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CBA influence

Concerns with proposed changes to Access to Information Act

By Kim Covert November 16, 2017 16 November 2017

Concerns with proposed changes to Access to Information Act

When quasi-constitutional legislation interferes with a quasi-constitutional right, things are likely to get entirely messy.

The Supreme Court of Canada has characterized access to information legislation as quasi-constitutional in nature. Bill C-58, which contains amendments to the Access to Information Act, has provisions with respect to solicitor-client privilege – the quasi-constitutional right – and the constitutional principle of judicial independence that several CBA groups find troubling.

The Privacy and Access Law Section, along with the Ethics and Professional Responsibility and the Judicial Issues subcommittees, say in their submission that they support the overall intent of modernization. The Act no longer reflects current information and communications technologies and is out of line with citizens’ expectations of transparency in government – and with existing legislation in other jurisdictions.

 

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CBA influence

Offering asylum is about more than opening borders

By Kim Covert November 15, 2017 15 November 2017

 

A good host makes sure that there is enough food and drink and other amenities to make those invited to the party feel welcome and comfortable. Canada is in danger of being a bad host to its most recent arrivals.

Asylum-seekers have been streaming across the Canada-U.S. border since last winter, thanks to an unwelcoming environment in the U.S. and the prime minister’s announcement in January that they would be welcome in Canada.

However sincere Canada might be about wanting to accept people fleeing war and persecution in their home countries, the fact is that the departmental infrastructure was already having trouble keeping up with the number of regular immigration applications.

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CBA Futures

Legal futures round-up

By Yves Faguy November 14, 2017 14 November 2017

Legal futures round-up

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

The CBA has teamed up with Law Made to bring back The Pitch – and this time the competition is open to legaltech startups from around the world. The event will cap off the CCCA National Conference and In-House Counsel Worldwide Summit on May 1 in Toronto.

Asma Khalid at NPR reports on research that shows “that current technology is replacing roughly 2 percent of a lawyer's total workload each year.”  But that’s not the only reason law firms are hiring fewer graduates. Outsourcing and an increasing reliance on contract lawyers are also contributing factors.

Another reason could be that corporate clients have figured out they don’t need external lawyers as much as they used to.  Joe Patrice at Above the Law reports that roughly half of in-house legal departments handle “more than half of their legal activities” internally.

If Yahoo and Equifax can get hacked, so can your company or law firm. Olga V. Mack has useful some advice on how your in-house legal team should manage the risk. Equifax was recently served with a "50-state" complaint related to the breach, to combine the many different suits filed against it.

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Indigenous rights

Sacred but not protected

By Troy Hunter November 10, 2017 10 November 2017

Sacred but not protected


Last week, in a decision that will have implications for future Indigenous religious freedom claims, the Supreme Court of Canada dismissed an appeal by the Ktunaxa, and held that a ski resort project, approved by the province, does not infringe the Ktunaxa First Nation's freedom of religion.

Billed as Canada’s first year-round glacier-based ski resort, the Jumbo Glacier Resort has long divided residents of the Kootenay region in British Columbia. Supporters tout the potential economic benefits from the development. The Ktunaxa First Nation, however, oppose the project, as it will be built on what they consider sacred land and home of Grizzly Bear Spirit.

The proposal to goes back to 1991.  That was at least a decade before the Supreme Court of Canada decided Haida Nation, the leading ruling on the Crown’s duty to consult Aboriginal groups before exploiting lands to which they may have claims. Prior to the announcement, the Ktunaxa Nation had not been consulted but there were procedures such as the CORE land planning process and the Environmental Assessment process which did require consultation with First Nations.  Ultimately, the Jumbo Glacier Alpine Ski Resort Project was one of the longest consultation and environmental assessment processes in Canada’s history.

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Another legal battle over environmental clean-up heads to the SCC

By Yves Faguy November 9, 2017 9 November 2017

Another legal battle over environmental clean-up heads to the SCC

 

 

The Supreme Court of Canada has agreed to hear the expedited appeal of the Redwater decision, a ruling that would spare a hurting energy industry from cleaning up orphaned wells.

Why it’s important: 

The Alberta case will have major implications on the priority and treatment of environmental claims in bankruptcy.

Following the downturn in commodity prices over the last few years, the province has seen a spike in the number of orphaned wells – oil and gas wells that have been taken out of production and abandoned by owners gone bankrupt and without the means to pay for the cleanup.

According to a recent C.D. Howe Institute report, Alberta has roughly 155,000 inactive wells scattered across the province that have not yet been fully remediated

The crash in commodity prices of the past three years has been linked to a dramatic increase in orphans – oil and gas wells assigned to the OWA because there's no owner financially able to seal the wells, remove equipment and restore the land when their productive life ends.  The industry and eventually taxpayers in the province could find themselves on the hook for clean-up costs reaching as high as $8 billion, the report says.

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Competition law

What’s up with the bread price-fixing investigation?

By Mariane Gravelle November 7, 2017 7 November 2017

What’s up with the bread price-fixing investigation?

 

The story

Last week, the Competition Bureau and RCMP raided the offices of several companies in Canada’s grocery industry on suspicion of price-fixing of packaged bread products. According to the Competition Bureau, the raid was “based on evidence that there are reasonable grounds to believe that certain individuals and companies have engaged in activities contrary to the Competition Act.” As of yet, no charges have been laid.

The investigation was confirmed by grocery companies Metro and Loblaws. Said Loblaw Companies Limited

George Weston Limited (TSX:WN, "George Weston") and Loblaw Companies Limited (TSX:L, "Loblaw") today confirmed that they are aware of an industry-wide investigation by the Competition Bureau concerning a price-fixing scheme involving certain packaged bread products. George Weston and Loblaw are cooperating fully.

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The profession

The Law Society of Upper Canada should stick to its statutory knitting

By Léonid Sirota November 7, 2017 7 November 2017

The Law Society of Upper Canada should stick to its statutory knitting

 

As Yves Faguy already noted in this space, the soon-to-be-Law Society of Ontario’s demand that its members “create and abide by an individual Statement of Principles that acknowledges [their] obligation to promote equality, diversity and inclusion generally, and in [their] behaviour towards colleagues, employees, clients and the public” has been quite controversial. Perhaps understandably, the debate has focused on the substantive merits of such a policy in promoting diversity and inclusion, and on its impact on the freedoms of conscience and expression. Yet the policy raises other questions too, not least that of the scope of the Law Society’s regulatory authority―both as a matter of positive law, under the Law Society Act (LSA), and as a matter of principle and policy.

As I have already noted elsewhere, it is not obvious that the LSA allows the Law Society to demand that lawyers “promote” a particular set of values, be it ever so laudable―except, arguably, in the process of “prescribing oaths and affirmations for applicants for a licence or any class of applicants for a licence” (section 62(0.1.26). If it exists, the authority to do is presumably implicit in the Law Society’s “function … to ensure that … all persons who practise law in Ontario … meet standards of learning, professional competence and professional conduct that are appropriate for the legal services they provide” (section 4.1(a)). This function, in turn, must be exercised “hav[ing] regard to” a number of “principles”, among which are duties “to maintain and advance the cause of justice” and “to protect the public interest” (section 4.2).

Is this enough?

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Offshore tax

Paradise Papers: Tackling creative compliance

By Justin Ling November 6, 2017 6 November 2017

Paradise Papers: Tackling creative compliance

 

It’s been more than a year since a consortium of news outlets worldwide released details on an international network of tax havens and shelters, some employed by the rich and powerful to avoid domestic taxes, known as the Panama Papers dump.

The leaks led to resignations in Iceland, Malta, Spain, and rocked governments the world over. Canada, however, was relatively spared.

But Trudeau’s inner circle was implicated in murky tax avoidance this week, after the Toronto Star and CBC/Radio-Canada published details from the Paradise Papers, more leaks from the world of tax shelters and aggressive tax avoidance.

What do the documents say? The Star reported Sunday that Stephen Bronfman and Leo Kolber, two prominent Liberal fundraisers and allies of the Trudeau family, held a Cayman Islands trust to hold revenue from the Bronfman family’s Israeli investments.

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