The Power of Perspectives

The Canadian Bar Association
The profession

Limiting freedom of speech for lawyers?

By National May 5, 2016 5 May 2016


Here’s an interesting twist on the debate about whether the legal profession should play a role in imposing values on lawyers that are deemed acceptable. In the U.S., a group of lawyers are pushing for new antidiscrimination rules to be included in the ABA’s Model Rules of Professional Conduct :

The proposal, drafted by an American Bar Association committee, would deem it “professional misconduct” for a lawyer to harass or discriminate based on factors such as race, sex, religion or socioeconomic status. Under the model rule, engaging in such conduct, if “related to the practice of law,” would carry the risk of disciplinary action, including losing one’s law license.

Eugene Volokh is not a fan of the proposal:

… [Say] that you’re at a lawyer social activity, such as a local bar dinner, and say that you get into a discussion with people around the table about such matters — Islam, evangelical Christianity, black-on-black crime, illegal immigration, differences between the sexes, same-sex marriage, restrictions on the use of bathrooms, the alleged misdeeds of the 1 percent, the cultural causes of poverty in many households, and so on. One of the people is offended and files a bar complaint. Again, you’ve engaged in “verbal … conduct” that the bar may see as “manifest[ing] bias or prejudice” and thus as “harmful.” This was at a “social activit[y] in connection with the practice of law.” The state bar, if it adopts this rule, might thus discipline you for your “harassment.” And, of course, the speech restrictions are overtly viewpoint-based: If you express pro-equality viewpoints, you’re fine; if you express the contrary viewpoints, you’re risking disciplinary action.

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Perspectives from South Africa

Remembering the past and promoting access to information

By Kimberley Hui May 5, 2016 5 May 2016


“A luta continua” : the struggle continues. This phrase is plastered on the interior wall of the Constitutional Court of South Africa. The red bricks enclosing that space were gathered from the now notorious Number Four prison which detained human rights activists such as Nelson Mandela and Mahatma Gandhi. The significance of remembering the past and the importance of learning from it is represented through this symbol in the photograph.

A technical tool that is often used in the battle against forgetting is access to information laws. Within Constitution Hill, steps away from the Court, is the South African History Archive (SAHA), a non-government organization with the dual functionalities of housing pre and post-apartheid records and fighting for access to various records through their Freedom of Information Programme (FOIP).

The political, social and economic struggle South Africa suffered from was a result of a regime built on the foundation of segregation and institutionalized violations of basic human rights. Through these hardships came the agreement between sides to end the apartheid system that had plagued the nation for so long. Given South Africa’s troubled past arising from a deeply inculcated culture of secrecy, it is no surprise that unlike many foreign laws, including Canada’s, South Africa notably affords its residents a constitutionally protected right to access to information. In order to give effect to this fundamental right, the Promotion of Access to Information 2000 (PAIA) was introduced, providing an accountable process in which one could gain access to any information.

PAIA was considered one of the most progressive laws of its kind when it was introduced.

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Assessing Canada's legislative responses to campus sexual violence

By Daniel Del Gobbo May 4, 2016 4 May 2016

In November 2015, a female student at the University of Victoria reported to the school that she had been sexually assaulted by one of her classmates. She decided against going to the police because she feared how she would be treated by law enforcement officials. Like many Canadian colleges and universities, the school had no standalone campus sexual violence policy to guide administrators on how to handle the complaint. It ultimately hired an external investigator, but the accused was allowed to remain living on campus as the investigation progressed. “It’s pretty terrifying,” the complainant told the media. “It got to the point where I didn’t feel comfortable walking around on campus by myself.” She received a copy of the investigator’s report several weeks later, but only after asking for it and then only with redactions. She said the investigator found her to be credible, but that she had not been sexually assaulted because she did not verbally say “no.” The report came with a warning that she should keep its findings strictly confidential or else the university could take disciplinary action against her.

The Victoria case is troubling in itself, but even more so because the story strikes us as depressingly familiar. It is the latest in a series of high-profile sexual assault complaints that were mishandled by Canadian colleges and universities.

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The practice

Table for one: Operating strategically as a solo in-house counsel

By Catherine Chow May 3, 2016 3 May 2016

Over a quarter of Canadian law departments are made up of only one in-house counsel, who is typically supported by one, maybe two legal assistants. As this trend continues to grow, the management of solo departments has taken on a more professional approach, with solo practitioners sharing their experiences and advice with each other.

The experience of being a solo is diverse because of the vast differences in the types of industries and sizes of companies in which we work. However, a few key commonalities emerge: we all face the same challenges of defining our roles within the company, figuring out ways to engage external counsel (preferably cheaply) and maintaining order by ourselves. After 10 years as The Keg’s solo in-house counsel, I have learned a few strategic lessons in managing the company’s legal and business needs effectively.

First, it is essential to set expectations for what a solo can do. The sheer volume of routine paperwork coupled with special projects can be crushing. Most solos have a comprehensive generalist practice: they draft and negotiate all types of contracts; manage litigation and regulatory compliance; and handle employment/HR, insurance and risk management for the entire company. And if that weren’t enough, a significant portion of time is spent with the company’s executive team planning, analyzing and implementing business strategies. Therefore, it is imperative that solos organize and lead their generalist practice efficiently to safeguard time for the new, often more interesting business work with the executive team.

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Perspectives from Uganda

Mothers with children in prison: Learning from Uganda’s practice

By Anna Du Vent and Violah Ajok Balson May 3, 2016 3 May 2016


Whatever governments and prison officials might say, there is no link that directly equates being in prison with being a bad mother. Alternatively, there is clear evidence that it is in children’s best interests to spend their early years under the direct care of their mothers. Forced separation poses a direct health risk to children, in large part because they are denied the benefits of breastfeeding. Further, interfering with children’s attachment to their mothers puts them at risk of developmental deficits, including poorer health and social outcomes.  

How refreshing it is then for visitors at the Fort Portal Women’s Prison, in Western Uganda, to lock eyes with babies crawling or curling up in their mothers’ laps. These mothers are either on remand or serving sentences, and the babies live with them at the prison.  The children, all under the age of two, are just a few among the 239 children currently living with their mothers in prison throughout Uganda.  

Canada’s correctional system could learn some lessons from Uganda’s experience in trying to keep mothers and their children together.

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The practice

Is your data safe?

By Ann Macaulay May 2, 2016 2 May 2016

Is your data safe?


Privacy and confidentiality concerns took centre stage in April in the wake of Panamanian-based law firm Mossack Fonseca’s massive data leak. The theft of millions of its confidential documents exposed the names of the firm’s clients and their use of offshore shell companies and tax havens.

Founding partner Roman Fonseca told Reuters the firm had ruled out an internal leak of the information. “This is not a leak. This is a hack,” he said. But whether the documents were leaked by an insider or hacked by an outsider, the big question is: What firm will be next?

“Law firms are appealing and sought-after targets,” said Dan Pinnington, vice president claims prevention and stakeholder relations at Lawyers’ Professional Indemnity Company in Toronto. “We’ve got loads of sensitive and confidential information, frequently have large sums of money in the trust accounts, bank accounts and, relative to many of our clients and particularly bigger institutions or corporate clients, we tend to have weaker security. So the hackers literally come after us.”

More than 80 per cent of American law firms have had some type of breach, according to a 2015 Bloomberg article. And there’s a wide range of hackers out there, including foreign governments, hacktivists, organized or petty criminals—even high schoolers trying their luck at breaking into a firm’s files.

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Forget about it

By National April 29, 2016 29 April 2016

In January the Office of the Privacy Commissioner of Canada (OPC) released a discussion paper asking whether there should be a right to be forgotten in Canada, along the lines of the right recognized by the Court of Justice of the European Union, in a case involving Google, that citizens should be able to force the removal of search results that link to information about them that is "inadequate, irrelevant, or no longer relevant.”  The OPC lays out the current state of the law in Canada:

In Canada, no right to be forgotten or erasure laws exist per se. Individuals have been turning to the OPC for assistance when they come across websites that have posted their personal information without consent. The OPC oversees compliance with the Personal Information Protection and Electronic Documents Act (PIPEDA), which sets out the rules that private-sector organizations must follow when they handle personal information in the course of their commercial activities. Generally, organizations cannot collect, use or disclose personal information without consent unless an exception to the requirement for consent applies. The law also gives individuals the right to access and to ask for corrections to personal information an organization may have collected about them. Individuals who believe an organization covered by PIPEDA is not living up to its responsibilities under PIPEDA have the right to file a complaint with the OPC.

Éloise Gratton and Jule Polonetsky argue against legislating such a right in Canada.

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Indigenous rights

Free and unfettered trade: An ancestral right?

By Justin Ling April 28, 2016 28 April 2016

After years of landmark decisions from the Supreme Court of Canada on Indigenous rights — defining the parameters of everything from ancestral rights to the duty to consult — Timothé Huot is hoping for one more victory.

“I think the status of the Royal Proclamation is an issue that the Supreme Court should finally decide on,” Huot told CBA National.

And that’s what he intends to do. On Monday, Huot was instructed by his clients to seek leave to appeal to the to court in his long-standing fight to get his clients, Mohawks from the reserve of Kahnawake, near Montreal, to be exempt from the provincial and federal gas tax system.

CBA National has already covered their fight at the Superior Court and the Court of Appeal.

The case, Jack W. Leclaire, et al. v. Attorney General of Canada, et al., involves 11 Kahnawake gas merchants who claim they should not be required to collect provincial and federal sales tax from the non-status Indian travellers at the pump.

Huot has, thus far, failed to convince either of the lower courts of that idea.

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The practice

Finders keepers: Tips for holding on to your associates

By Carolynne Burkholder-James April 28, 2016 28 April 2016

Finders keepers: Tips for holding on to your associates

Within their first five years, 57 per cent of female lawyers and 49 per cent of male lawyers leave private practice, according to data collected by the Law Society of Alberta. Experts say the numbers are likely similar across Canada.  

This is a big problem for law firms, says Lorene Nagata, the founder of NagataConnex Executive Legal Search, a legal recruitment firm.

“It’s hugely expensive to lose associates,” she says. “Associates usually only start to make money for the firm in their fourth year of practice. Prior to that, it’s really an investment for the firm.”

Turnover within a law firm can also be frustrating for clients and bad for morale, says Nagata, who is based in Toronto.

Nagata and Allison Wolf, a lawyer coach with Vancouver-based Shift Work Strategic Inc., have some tips for law firms to increase their retention of associates.

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Corporate counsel

Building better rosters: 7 things in-house counsel need to know about the RFP process

By Jim Middlemiss April 27, 2016 27 April 2016

Building better rosters: 7 things in-house counsel need to know about the RFP process


In late 2014, TELUS Corporation was looking to implement more cost controls across its business units and identify efficiencies it could bring to bear in its operations, including legal services. It fell on the shoulders of Michel Belec, Vice President of Legal Services; and Alan Dabb, Vice President of Litigation, to figure out what that meant for the corporate law department. But before they could begin, they had a problem common to many large organizations in Canada: legal spending was fragmented and distributed across the organization. Figuring out the total legal spend would not be an easy operation.

“Not all of the external legal spend was concentrated in the corporate law department,” Dabb explains. For example, the labour, regulatory and tax teams had their own external legal spend, which was outside the corporate law department. “Our objective was to look at the overall external counsel spend to try to come up with some efficiencies to make sure that we were spending our dollars in the right places and getting maximum bang for our buck.”

What they found was that TELUS had an unwieldy 59 law firms on retainer, conducting a wide variety of work. “Some we used more frequently than others,” notes Belec. This meant different retainer agreements and work processes were in place for each of the law firms TELUS dealt with.

The duo saw it as an opportunity to use a Request for Proposal (RFP) process to refresh TELUS’s external counsel program in order to not only get a better handle on legal spending, but—equally important—find ways to standardize the way it worked with law firms, identify administrative efficiencies, and bring additional value-added services to the company for its legal spend.

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Perspectives from Nepal

Achieving substantive gender equality

By Melissa McKay April 26, 2016 26 April 2016

Nepal is currently home to the world’s youngest constitution. Though progressive in many aspects – it specifically protects transgendered individuals from discrimination – there remains work in certain areas specific to gender rights. The most controversial provision is the right to citizenship. The current text of the  Nepal's constitution prevents women from independently conferring citizenship to their children. Children born to a Nepali woman and a foreign man are eligible only for naturalised citizenship after becoming permanent residents to Nepal. Nepali men may confer citizenship to their children regardless of the mother’s status. Naturalised citizens of Nepal are ineligible for certain high offices, including that of president and vice-president.

Less than 20 years ago, certain Canadian women were discriminated against in a similar manner, despite the existence of the Canadian Charter prohibition on sex discrimination. Until 1997, Canada’s Citizenship Act imposed a higher burden on children born abroad to Canadian mothers than those born abroad to Canadian fathers. It wasn’t until the Supreme Court’s ruling in Benner v Canada (Secretary of State) that children born to either gender were to be treated equally when seeking Canadian citizenship.

Neither the implementation of constitutional rights nor the application of equality happen overnight in any democracy. Constitutional provisions and other forms of legislation are subject to interpretation. Their meaning can evolve along with societal shifts. They can be altered to reflect expanding ideals of equality.

But globally, the achievement of substantive gender equality remains elusive.

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CBA Futures

Legal Futures round-up: April 25, 2016

By Emily Alderson April 25, 2016 25 April 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 bevy of law day activities took place across the country around April 18th. Law Day aims, in part, to demystify the justice system and make it more accessible to the public. In addition to courthouse tours and open houses, several mock trials demonstrated how the court system works. In Medicine Hat, the Minions from the movie Despicable Me sued Gru for wrongful dismissal. In Calgary, two princesses argued a civil case about a glass slipper. In Penticton, Luke Skywalker stood trial for murder after blowing up the Death Star. Meanwhile, BC Chief Judge Crabtree of the BC Provincial Court hosted a Twitter Chat, Calgary offered free legal advice sessions, and the Ontario Bar Association held an art contest for youth.

Bennett Jones’ Calgary office launched a new startup incubator program called Kickstart to assist legal entrepreneurs. The program is a partnership with Innovate Calgary, VA Angels, District Ventures, and the Entrepreneurs’ Organization.

Law firm Freshfields Bruckhaus Deringer is planning a ‘nearshoring’ legal service centre in Vancouver to assist its American and Chinese offices.

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