The Power of Perspectives

The Canadian Bar Association
Legal marketplace

How litigation funding works in the commercial context

By Luis Millán September 17, 2018 17 September 2018

How litigation funding works in the commercial context

 

Legal disputes can be expensive and risky. They can also hold a great deal of value, which is why a growing number of investors reckon they can insulate themselves against market swings by funding litigation in return for a generous share of the proceeds.

The industry is also growing in sophistication. A practice that started by catering to plaintiffs unable to finance expensive lawsuits against deep-pocketed companies is quickly evolving into an industry that will also bet on big-ticket commercial litigation: Contract disputes, patent and trademark litigation, insolvency litigation, international arbitration. All are growing areas for litigation funding. And institutional investors — from endowment and hedge funds to private equity funds — are taking notice by ramping up their efforts to pour billions of dollars to funds that invest in what they consider is a promising asset class. As Christopher Bogart, the chief executive at publicy-traded Burford Capital, recently told the Financial Times, litigation funding is “a regular part of legal economics.”

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CBA influence

Time for Canada’s Constitution to be fully bilingual

By Kim Covert September 17, 2018 17 September 2018

 

The CBA’s French Speaking Members Section says any modernization of the Official Languages Act should include a requirement for the federal Justice Minister to ensure that the Constitution of Canada is enacted and enforceable in both official languages – and that she show her work.

While French versions of portions of the Constitution were tabled in Parliament 28 years ago, in 1990, the Section notes that they have yet to be enacted.

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The practice

Plain language in law, designed for modern times

By Yves Faguy September 14, 2018 14 September 2018

Plain language in law, designed for modern times

 

From October 25 to 27, Clarity will hold its international conference in Montréal. Clarity is an international professional network whose mission is to promote the use of plain legal language. To give us some background, Guillaume Rondeau, chief plain language specialist at Éducaloi, one of Clarity’s partners, spoke with CBA National to discuss the evolution of plain and effective legal language.

CBA National: The theme of the Montreal conference is “Plain Language in Modern Times.” Why was this theme chosen?

Guillaume Rondeau: What we know in English as “plain language” is mostly referred to as “langage clair” (clear language) in French, although that expression is slowly giving way to “communication claire” (clear communication), and this is an important distinction. When you say clear language, you’re putting a lot of emphasis on language itself—on the words. Popular understanding has it that the problem with law and legal communications is the legal jargon and how inaccessible it is to laypeople. But that obscures the other issues. And so, expertise has evolved over time. Rather than talking about just clear language, we examine the clear communication of law and legal matters. This takes into account communication as a whole. We also look more closely at other issues. So yes, terminology is one thing, but we also need to think about structuring and arranging information in logical ways, and about the way we design information: that is, the graphical presentation of information. Some fonts are easier to read than others. Font size and heading hierarchy are worth looking into. Design refers to images, tables, graphics. Thinking of plain language as clear communication really pushes the boundaries of our expertise.

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Criminal justice

Facilitating routine police evidence may not help court delays

By Justin Ling September 12, 2018 12 September 2018

Facilitating routine police evidence may not help court delays

 

What is routine?

What might seem like an abstract question has taken on larger significance under Bill C-75, the federal government’s omnibus justice reform legislation, which will come back before the Justice and Human Rights Committee as the House of Commons returns this month.

The bill has drawn considerable interest and criticism, particularly concerning its more controversial aspects — eliminating preliminary hearings, doing away with peremptory juror challenges, the hybridization of numerous offences. 

The other issue, at first overshadowed by the other changes, is the provision — s. 278 — proposing to “allow routine police evidence in writing.”

Under the proposed bill, that means anything collected by a police officer related to “gathering evidence and making observations; analysing, preserving or otherwise handling evidence; identifying or arresting an accused or otherwise interacting with an accused.” It extends to any other similar activities “that the police officer undertook in the course of their duties.”

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Environment

Right to be forgotten sets privacy against freedom of expression

By Doug Beazley September 11, 2018 11 September 2018

Right to be forgotten sets privacy against freedom of expression

 

Sir Timothy John Berners-Lee, the British engineer credited with inventing the World Wide Web, called it “dangerous.” Jimmy Wales, founder of Wikipedia, described it as “deeply immoral.” The New York Times warned darkly that it could “undermine press freedoms and freedom of speech.”

“It” is the 2014 ruling by the Court of Justice of the European Union upholding a regulatory agency’s decision to order Google to delete any links to an old news article about an auction of some property belonging to a Spanish lawyer.  The court agreed the old story was no longer relevant, introducing to the EU what many have called a new human right — the “right to be forgotten.”

The debate over the propriety of a right to be forgotten — RTBF, for short — has been raging on both sides of the Atlantic ever since. Its proponents say it’s the only way to protect personal privacy in an age when online information is practically permanent and universally accessible. The Office of the Privacy Commissioner got the ball rolling in Canada with a call for submissions on RTBF and online reputation in 2016, and the release of a draft position paper on the subject in early 2018.

 

Photo: Licensed under Creative Commons by www.quotecatalog.com. Some rights reserved

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Competition law

Firming up Canada’s stance on immunity and leniency

By Ann Macaulay September 10, 2018 10 September 2018

Firming up Canada’s stance on immunity and leniency


Many Canadians were outraged after Loblaw Companies Ltd. and its parent company George Weston Ltd. secured immunity from prosecution last year by coming forward and cooperating in an alleged bread price-fixing scheme. The fact that immunity was granted reinforced a widely held opinion that the federal government is soft on white-collar crime and corruption.

In fact, the feds have in fact been taking a closer look at white-collar crime in general, both domestically and internationally. The government introduced Bill C-74 in March, which would create deferred prosecution agreements in Canada, following a trend similar to legislation in other global jurisdictions.

Although formal immunity or leniency programs exist within the competition law area to promote the detection, self-reporting and prosecution of non-cooperating offenders, “in areas such as anti-corruption, the government is grappling with issues in terms of detection and enforcement,” says Huy Do of Fasken Martineau DuMoulin LLP in Toronto.

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Message from the editor

CBA National is turning a new page

By Yves Faguy September 7, 2018 7 September 2018

CBA National is turning a new page


After 42 years as a print publication, CBA National magazine is moving to a new all-digital platform. Our last print edition was our Summer 2018 issue. In the coming months, we will be focused on redesigning the existing digital publication, growing our online presence and stepping up our recruitment of op-ed contributors, particularly among members.

It was a decision that wasn’t taken lightly, as we know that some CBA members will miss the familiarity and tactile experience of the print issue.

However, amid ongoing concerns about a challenging print market, the time has come to embrace and fully commit to an exclusively digital future, in which we will cultivate an inclusive and engaged legal professional community online.

Six years ago we launched the digital version of CBA National (nationalmagazine.ca) at a time when it had become clear that we could no longer stay on the sidelines and ignore the power of new media.  Our online audience has grown steadily since then, and this transition is the logical next step toward an innovative and sustainable future.

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Insolvency

Lenders vs pensioners: Whose claims should be preferred?

By Doug Beazley September 6, 2018 6 September 2018

Lenders vs pensioners: Whose claims should be preferred?

Attilio Malatesta worked in sales for Sears Canada for more than four decades. In early August, he got the news he’d been dreading: his pension was being cut by $800 a month.

"Who the hell's going to hire a 73-year-old guy?" he said. "I can only stay on my feet for so many hours. I have arthritis.”

When Sears went under in early 2018, it left behind a pension plan burdened with a $260 million actuarial shortfall serving about 18,000 former employees. That shortfall is forcing deep cuts in retirees’ incomes, pushing many of them back into the job market late in life.

This fall, the retirees are going to court to seek an order for a priority claim on Sears’ remaining assets to shore up the pension plan. Even if they win, they’ll lose: those assets can only cover a little more than half of the shortfall.

And the retirees’ case stands a good chance of falling down in the face of a basic aspect of Canadian insolvency law: when a failed company’s pension plan can’t pay what it owes, retirees typically find themselves at the tail end of a long queue of creditors.

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CBA Influence

First Nation claims: Tribunal practice directions must consider funding available to claimants

By Kim Covert September 5, 2018 5 September 2018

 

Stable, adequate funding is a clear concern for the CBA’s Aboriginal Law Section when it comes to appearances before the Specific Claims Tribunal, which handles claims made by First Nations alleging that the federal government has violated a treaty or the Indian Act.

Commenting on draft practice directions which were circulated among members of the Tribunal’s Advisory Committee – which includes Section representatives – members stated the general need for the Tribunal to consider the financial implications of any new procedural steps.

Acknowledging that the Tribunal has no power over funding levels, the Section notes claimants “often have access to significantly less resources than respondents” and that the Tribunal needs to be attuned to this lack.

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Profile

Interview with CBA President Ray Adlington

By Kim Covert September 4, 2018 4 September 2018

Halifax tax lawyer Ray Adlington, a partner at McInnes Cooper, became president of the Canadian Bar Association on September 1. In an interview with CBA National, he discussed his priorities for the year ahead and the Association’s role in helping legal professionals acquire the skills they need to succeed.

CBA National: This is a challenging time for the profession. We’re seeing a variety of new business models challenging traditional firms. Technology is forcing lawyers to reconsider how they both deliver and bill for their services. Law schools are being questioned about whether they’re properly preparing lawyers for the future. The profession is still facing issues surrounding diversity, and the justice system itself under strain. With all that in mind can you tell us what you’ve identified as your priorities for the year ahead?

Ray Adlington: That’s an accurate depiction of where the profession stands today. Before speaking about my personal priority, the priorities the CBA’s Board have identified for the year are increasing member value and enhancing member satisfaction with their CBA experience. Based upon the results of member surveys, the Board has also identified two advocacy priorities for the year: improving access to justice and protecting solicitor/client privilege. We will be communicating back to members over the course of the year as our work progresses.

As a personal priority, I will be focused on advancing inclusivity within the legal profession. We know certain cultural identities are under-represented in our profession generally and in leadership positions particularly.  We know the stigma that attaches to depression and other mental illnesses that does not attach to cancer and other physical ailments. This year, I am looking forward to working with equality-seeking groups and our Wellness Subcommittee to educate members around combating their implicit biases by recognizing them, accepting that they hold them, and then  reflecting that analysis into the judgments made about the different behaviours that other people bring to a particular setting.

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Legal affairs

Friday weekly wrap-up

By Yves Faguy August 31, 2018 31 August 2018

Friday weekly wrap-up

Here’s a quick look at the major legal stories from the past week.

It’s been a stressful week ahead of the Labour Day weekend for the Trudeau government. Yesterday, the Federal Court of Appeal overturned approval of the Trans Mountain expansion project on two grounds. The NEB was wrong not to assess the related effects of maritime shipping. And the government fell short in meeting its duty to consult First Nations. This is not to say that the project is dead, yet.  Ottawa could appeal the decision, and the Prime Minister has assured Alberta’s premier, Rachel Notley, that he “stands by the TMX expansion project and will ensure it moves forward in the right way.” But as Robert James writes “that decision is an indictment of DOJ/NRCAN approach to consultation and their efforts to turn it into a narrow, administrative law process.” Environmental assessments, done right, will save time, money and political heartburn. Notley has announced that Alberta is pulling out of the Trudeau government’s climate change plan.

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Justice

Filling judicial vacancies: Only a partial solution

By Justin Ling August 29, 2018 29 August 2018

Filling judicial vacancies: Only a partial solution

 

During their first three years in government, the Justin Trudeau-led Liberal Party has managed to stickhandle some significant legal files with relative skill. Medical assistance in dying, the legalization of cannabis, national security reform were all brought forward and passed into law with little of the legal fight that overshadowed much of the agenda of the Harper government before it.

But criticism remains regarding Ottawa’s handling of criminal justice. In particular, a fight is brewing over a justice reform bill that Justice Minister Jody Wilson-Raybould says will tackle court delays. Her critics say it will do the opposite.

The other big-ticket attempt to fix the issue of court delays has been to create new spots on the bench and get them filled in a reasonable time. Staffing the judiciary, however, has been a challenge for the government.

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