Legal Insights & Practice Trends

The Canadian Bar Association

Translating a Dutch decision to a Canadian context

By Kim Covert July 2, 2015 2 July 2015

A Dutch court made headlines in June by ruling the country’s government had to do more to reduce greenhouse gas emissions.

“This is a landmark ruling,” says James Thornton, the London-based chief executive of Client Earth, an international group of environmental lawyers. “Most remarkably, it is based in essence on established science and the ancient principle of a government’s duty of care. That reasoning is applicable in any legal system and will certainly be used by courts in other countries.”

Urgenda, the group that brought the suit in the Netherlands, has posted all of the documents it filed with the Dutch court online for others to use. Similar suits have been filed in Belgium and Norway, and environmentalists in Australia are considering their legal options.

But could it happen here?

Toronto environmental lawyer Dianne Saxe told CBC’s The Current this week that the same arguments that swayed the Dutch court could work in Canada.

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Calling all collaborators: Let's talk about legal education

By National July 2, 2015 2 July 2015

“…We are training young lawyers to take on different roles and means of delivering service to clients, with traditional law practice being only one option of many.  If that is true, then greater collaboration will be required between law schools, regulators, and the legal profession to ensure that the legal needs of the future – as defined and expressed by legal services users – can be met by the current and future generations of lawyers.” 

This is the vision of the Canadian Bar Association’s Legal Futures Initiative, as expressed in its August 2014 report, Futures: Transforming the Delivery of Legal Services in Canada

What’s novel about this statement?  Is it the prediction that tomorrow’s lawyers will be assuming new and diverse roles in the legal marketplace?  Not really – in the year since the report was issued, opportunities in #AltLaw and #NewLaw have already grown far beyond the imagination of legal futurists; young lawyers know that the horizon is both broad and deep.  It’s not even the idea that inputs have an effect on outcomes: our profession understands the need to connect legal needs with legal education, which is why we see law schools revising their curricula, increasing experiential education offerings, and incorporating technologies in the classroom. Instead, what’s new is the idea that we should all work together to make change.  Collaboration is radical – who knew?

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Ode to the suburban lawyer

By Kim Covert June 30, 2015 30 June 2015

Figuring out a person’s motivation isn’t just for method actors – it’s something the futures discourse needs to explore as well.

During last week’s #cbafutureschat, a Twitterchat hosted by Richard Susskind, whose expertise is in the future of legal services, the discussion revolved around the question of why lawyers seem to be averse to changing their old-fashioned ways of working and billing for that work.

The no-brainer answer appeared to be because they lack the appropriate motivation.

Adam Ziegler, a lawyer in Boston “working on tech that makes legal better,” said for most lawyers “the upside of change is not clear and compelling.”

Colin Lachance, principal of PGYA consulting, echoed that sentiment, saying lawyers who are earning a good living are motivated to maintain the status quo.

“Some legal sectors are highly competitive,” said Noel Semple, a professor at the University of Windsor School of Law. “But if you’re a suburban family lawyer, you can prosper with a very traditional practice.”

Taus Shah, who was just called to the Ontario bar this year, added, “Not just family lawyers. But I would say it’s applicable to many solo and small practice lawyers.”

Susskind asked other participants whether they agreed that suburban lawyers can continue to stick to the old model and prosper.

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Access to justice

An arm and a leg

By Noel Semple June 28, 2015 28 June 2015

How much does it cost individual Canadians to seek civil justice?  The answer, it seems, is "too much.” There is broad agreement that the high cost of justice is undermining their ability to access justice in matters relating to family, employment, and consumer law.  This is confirmed by research carried out by the Costs of Justice project at the Canadian Forum for Civil Justice. The National Self-Represented Litigants Project at the University of Windsor’s law faculty has also contributed valuable data from the perspective of justice-seeking individuals.

Seeking to build on this progress, my new paper offers a comprehensive empirical account of the costs confronting individual justice-seekers in this country.  It defines and categorizes monetary, temporal, and psychological costs. It compiles data quantifying these costs for Canadian litigants, including both those with the benefit of counsel and those who are self-represented. Some of the key findings:

·       The monetary costs of seeking civil justice include court fees and disbursements, but lawyer’s fees dwarf these costs.  In the personal client hemisphere of legal practice, time-billing Canadian lawyers charge roughly 50 per cent more per hour than their American counterparts do.

·       Temporal costs can be understood in three ways. First, Canadians' efforts to obtain civil justice often last for many months (duration cost).  Second, while these efforts continue, they can consume many hours from the justice-seeker's days (workload cost).  Third, for self-represented litigants in particular, seeking civil justice can be time-consuming enough to undermine employment and personal relationships (opportunity cost).

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Senate set to vote on controversial private member’s bill

By Justin Ling June 26, 2015 26 June 2015

After years of wrangling in Parliament, and an unprecedented vote by Conservative senators against a ruling by the Senate’s Conservative Speaker, C-377 is now finally coming for a final vote in the Red Chamber.

The private member’s bill, dubbed the Union Transparency Act, has been one of the most controversial of the last decade to make it this far in the legislative process.

The purpose of the bill is simple: it would extend application of the Income Tax Act to cover labour unions, and, as the bill phrases it, “labour trusts.” That means they would have to report certain information – assets and liabilities, accounts payable and receivable, salaries, bonuses, gifts, service credits, lobbying activities, etc. – to the Canada Revenue Agency each year or be subject to a $25,000 fine. Much of that information would be published shortly thereafter.

Criticism of the bill has focused on two pegs: the bill burdens unions with costly paperwork and bureaucracy, and it subjects them to entirely unfair treatment.

On the former, proponents — like the bill’s author, Conservative MP Russ Hiebert — have said much of this reporting already exists, and this is merely requiring them to provide some of the information in a more detailed manner.

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Criminal law

Statistics in context: Aboriginals in Canada’s prisons

By Kim Covert June 25, 2015 25 June 2015

A report today from the Public Safety Canada Portfolio Corrections Statistics Committee says that aboriginal offenders in Canada are entering the system at a younger age than other offenders, and staying in prison longer.

The 2014 Corrections and Conditional Release Statistical Overview states that nearly half of aboriginal offenders are under 30 when they enter the system, compared with 36 per cent of non-aboriginal offenders, and they are more likely to serve two-thirds of their sentence, compared with the one-third generally served by other offenders.

In addition, the proportion of the prison population of aboriginal background (which includes Inuit, Innu, Métis and North American Indian) increased to 20.9 per cent between 2009-10 and 2013-14, rising from 4,019 to 4,860. Aboriginal women represent 34.5 per cent of all women in prison, while aboriginal men represent 22.6 per cent of male prisoners. Aboriginal adults represent about three per cent of the total Canadian population.

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CBA Legal Futures

Change now

By Richard Susskind June 24, 2015 24 June 2015

In her introduction to ‘A Guide to Strategy for Lawyers’, a booklet that I have written for CBA members, Michele Hollins, the CBA President, quotes Jack Welch, the former CEO and Chairman of General Electric, who advises organizations to ‘change before you have to’.  I had not heard this phrase before, but will undoubtedly use it again, because it so succinctly sets the agenda for practising lawyers in Canada and advanced jurisdictions around the world.

The legal marketplace, in my view, is in the middle of a period of unprecedented upheaval. Indeed I believe we will see more change in the legal profession in the next two decades than has been witnessed in the past two centuries. What is happening, though, is not an overnight, big bang revolution. Nor is it a leisurely evolution. Instead, I characterize it as an ‘incremental transformation’ - countless significant advances in the way that legal services are delivered, none of which in isolation might appear to be earth-shattering but, cumulatively, will add up to legal and justice systems that look radically different. These will be systems that are fit for purpose in the 21st century rather than systems that owe their origins to the 19th century.

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Social media, privacy and extraterritoriality

By National June 24, 2015 24 June 2015

In Douez v. Facebook, Inc.,  a week after it ruled against Google in Equustek Solutions Inc., the BC Court of Appeal had to decide whether BC users of Facebook have the protection of the province’s privacy laws. It ruled that the social media company’s terms and conditions override the province’s privacy law.  Here’s a passage from Justice Bauman’s reasoning:

[48]   The principle of territoriality is that B.C. law applies only in B.C. Our Legislature is powerless to affect the law of other jurisdictions. To the extent B.C. law has any effect outside B.C., it is because other jurisdictions choose, for reasons of comity, to provide in their own law that this shall be the case – typically with a choice of law rule. So, for example, the reason that two people who were married in B.C. may still be regarded as married while visiting England is that English private international law accords them that status, not that B.C. marriage law somehow applies extraterritorially in England.

Keith Rose outlines the takeaways for the various parties:

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Legal marketplace

ABS watch: Big ambitions for the Big Four

By National June 24, 2015 24 June 2015

Mark Cohen sizes up the new competitors to BigLaw, namely the Big Four accounting firms, who are taking advantage of everything from the new ABS environment in the UK to the Swiss Verein legal structure, which lends itself nicely to overcoming regulatory barriers to global consolidation in the legal market:

The BigFour have already made deep, broad, and economically significant inroads into the global legal market. And that includes the US where, as has been noted, for regulatory reasons, it is labeled as “consulting” rather than “the practice of law.” This begs the question: is it any longer relevant to use “engaging in the practice of law” as the Maginot line to describe the delivery of legal services? And is it useful—as law firm lawyers do– to segregate legal issues from broader business challenges? This distinction is already becoming blurred for in-house lawyers who have far closer ties (including employment and ownership opportunities) with the client(s) they serve than attorneys at law firms. Lawyers should focus on practices that are deeply embedded in other knowledge based professions and the businesses they serve: collaboration, transparency, technology, efficiency, brand, and global presence. These are the defining characteristics of companies that are “winning” in today’s economy. Lamentably, they are not terms or traits one would associate with traditional law firms.

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The practice

Two experts, two opinions

By Suzanne Loomer June 24, 2015 24 June 2015

Two experts, two opinions

Often in cases where the quantum of finan­cial loss or business value is at issue, two financial experts will give two different opinions about the value of a business or the financial losses suffered by one of the parties.  When the differences in opinion are significant, there is a risk that one or both testimonies will be ignored, lose credibility or, at the very least, create confusion among the stakeholders.  And beyond that, the litigants find themselves in the difficult situation of negotiating a settlement based on divergent valuations. As well, the court faces the challenge of understanding the reasons for the difference in the opinions.   While financial expert witnesses, like Chartered Business Valuators, strive to uphold their duty to remain independent and objective, significant differences in opinions can be met with allegations of expert bias and advocacy.

So how is it that two experienced expert witnesses form conclusions that are dramatically different from one another, yet seemingly based on the same set of facts?  And, how can experts and counsel work toward improving the presentation of expert evidence in a way that encourages settlement and better informed judgements, as well as reduces the perception of bias on the part of experts?

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Vacationing/electioneering MPs leave pile of dead bills behind

By Kim Covert June 23, 2015 23 June 2015

Well, that’s it, then.

Another session of Canada’s Parliament done and dusted, and no bums scheduled to be in the Green Chamber’s seats before the election on October 19.

Most governments use throne speeches to identify their agendas, and parties often wait until the election writ is dropped before laying out their platforms (although that’s probably a thing of the past, particularly with a fixed election date), but the Conservative government used the ingenious tactic of introducing a flurry of bills so late in the session that they had no hope of being passed before the House rose to “paint a picture,” in the words of House Leader Peter van Loan, of its intentions if re-elected.

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When disaster strikes!

By Ann Macaulay June 21, 2015 21 June 2015

When disaster strikes!

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