The Power of Perspectives

The Canadian Bar Association
Conduct becoming

Working through ethical dilemmas

By Gavin & Brooke MacKenzie June 18, 2018 18 June 2018

Working through ethical dilemmas

 

This spring, litigators from across the province gathered at a Law Society of Ontario roundtable to discuss the complex issues that arise in practice surrounding ethics in litigation. As co-chairs of the roundtable, we organized a session to work through a series of mock problems, raising issues like joint retainers, the duty of candour, preparing clients as witnesses, and working with expert witnesses. Over the course of the subsequent panel discussion, participants shared and debated their findings and practical tips. Of the many valuable takeaways, here are three that we thought were most worth sharing.

1. There is value in working through professional conduct issues with colleagues

Although the rules of professional conduct may appear straightforward, it can be difficult to apply them to a real problem in your practice – especially if you are personally invested in the matter. It’s also easy to lose perspective when you’re used to advocating for your client, or when there is tension between your personal interests and professional obligations. 

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Opinion

What will MeToo cost you?

By Caitlin Urquhart June 18, 2018 18 June 2018

What will MeToo cost you?

 

Gender-based harassment is rarely about sex. It’s almost always about power. As a result, it should come as no surprise that law firms are not immune to the global reckoning that began last October. This year, for example, Borden Ladner Gervais LLP included sexual harassment on its list of the top legal risks for businesses. Law firms are businesses too, and can suffer from some of the same issues with power dynamics.

Actions from the distant past are being judged and measured against today’s yardstick. Women coming forward are believed and honoured for outing inappropriate behaviours. The tides have turned. This is a global phenomenon.

While stories of dethroned lawyers have not yet made headlines, everything from frantic whispers to ousters are happening at partnership tables. Those with skeletons in their closets are panicking as they realize that others now see them as immense liabilities. No doubt they are calculating their options.

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Closing argument

Separate schooling and making sense of Canada’s identities

By Omar Ha-Redeye June 18, 2018 18 June 2018

Separate schooling and making sense of Canada’s identities

 

Canada had at its outset two founding peoples, legally and constitutionally speaking, which makes it unique among the world’s nation-states. It’s a narrative, of course, that discounts the foundational role played by this country’s Indigenous Peoples. More on that later.

To ensure British and French identities would both continue as part of the Canadian Compact, section 93 of the Constitution Act enshrined public funding for separate schools for Protestants and Catholics – though only where such schools existed before a province entered into Confederation.

Much has changed since 1867. The case for separate schooling is increasingly being challenged as both secular groups and religious minorities gain influence across Canada. Many provinces have renegotiated their relationships with separate schools.

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The Supreme Court of Canada

SCC backs law societies in denying accreditation to TWU

By Justin Ling June 15, 2018 15 June 2018

SCC backs law societies in denying accreditation to TWU <p> Trinity Western University has lost its bid to the Supreme Court, and its graduates will not be accredited as lawyers, so long as the school forces its students to sign a mandatory religious covenant.</p> <p> <a href="https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/17140/index.do">The 7-2 split decision from the court</a> &mdash; with four different reasons &mdash; ruled that the law school&rsquo;s exclusionary admissions policy unduly excluded LGBTQ students. In doing so, it found the decisions by both the law societies of British Columbia and Ontario to deny it accreditation to be reasonable.</p> <p> Under the law school&rsquo;s mandatory covenant, students are forbidden from engaging in sexual activity outside the bonds of heterosexual marriage.</p> <p> The pair of decisions &mdash; dismissing the appeal in Ontario, and allowing the appeal in British Columbia &mdash; offers new guidance on where the religious freedom guaranteed under the Canadian Charter begins and ends. But the majority court couldn&rsquo;t come to a consensus on how that should work.</p>

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Trade

What it will take to get NAFTA negotiations back on track

By Yves Faguy June 14, 2018 14 June 2018

 

Harsh language rarely helps the cause. Emphasizing a more positive intention is generally the best way to get parties to agree to a deal.  That was the subtext of the message delivered yesterday by Public Safety Minister Ralph Goodale who, in an interview on a Fox News business, made the case that Canada still wants to make a deal to update the North American Free Trade Agreement. 

It didn’t go unnoticed that Goodale squeezed in some heartfelt compliments to U.S. President Donald Trump for reaching an agreement with North Korean leader Kim Jong Un in Singapore this week.

Hopefully, the change in tone will get Canada and the United States back on track to find a resolution to their fraying trade relations after the Quebec G7 Summit, says Clifford Sosnow, a lawyer and partner at Fasken Martineau DuMoulin, based in Ottawa and Toronto.

The other major challenge, he says, is figuring out what the end game is for the Trump administration.

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SCC: Correctional Service's psychological assessment tools may be culturally biased

By Yves Faguy June 14, 2018 14 June 2018

SCC: Correctional Service's psychological assessment tools may be culturally biased

The Supreme Court of Canada has ruled in a 7-2 decision that the Correctional Service of Canada failed to take reasonable steps to ensure the accuracy of psychological assessment tools for Indigenous offenders. The assessment tools have been used in a number of situations, from helping determine eligibility for parole and access to rehabilitation programs.

The ruling concludes a challenge brought forward by Jeffrey Ewert, a métis offender in his fifties who has spent more than 30 years in federal penitentiaries serving two life sentences for second degree murder and attempted murder. For much of that time, the CSC has relied on risk assessment scores to discourage Ewert from accessing rehabilitative opportunities, even though he had become eligible for parole over 20 years ago.

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CBA influence

A shorter deadline won’t make tax reports more accurate

By Kim Covert June 13, 2018 13 June 2018

 

Taxpayers with foreign affiliates currently have 15 months after the end of their taxation year to file information returns to show their compliance with Canadian taxation of foreign-based income. In the 2018 budget, the federal government announced its intention to shorten that filing deadline to six months beginning in 2019, to bring it in line with the corporate income tax return deadline.

In a submission to the Department of Finance, the Joint Committee on Taxation of the Canadian Bar Association and Chartered Professional Accountants of Canada lays out its argument against this proposed move.

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Corporate counsel

Global cybersecurity: Do we need more law?

By Karen Sadler June 13, 2018 13 June 2018

Global cybersecurity: Do we need more law?

 

“Should we be worried? Extremely worried?” That’s the question Rosemary McCarney (pictured above) opened with at the 2018 CCCA National Conference & In-House Counsel World Summit earlier this spring. As the Canadian Ambassador and Permanent Representative to the United Nations (and the Conference on Disarmament in Geneva in 2015), she’s well poised to shed light on the pros and cons of the internet as well as the steps we need to take to address cybersecurity concerns as the world gets smaller and smaller.

“I was struck by how quickly what I wanted to say even just a few weeks ago was overtaken by real-time events,” she began. “Our cyber codependency, while still offering both advantages and opportunities, will cause us some sleepless nights because it makes us vulnerable.”

Cyberthreats are in the top three of global threats reported by the World Economic Forum, and are becoming more frequent and more disruptive. However, McCarney is optimistic. She argues that the myriad of treaties, conventions, standards and norms that make up the international rules-based order we rely on to govern trade, foreign policy, commerce and war are more than sufficient to govern cybercrime and cybersecurity issues too. Is the global commons under threat? Absolutely. But McCarney strongly believes we’re up to the task of defending it.

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Duty to consult

The Bigstone ruling and what it means for Trans Mountain

By Yves Faguy June 12, 2018 12 June 2018

The Bigstone ruling and what it means for Trans Mountain

 

The Trans Mountain project has understandably consumed most of the coverage of pipeline politics of late (The Canada Pension Plan Investment Board the latest to get drawn in).  As the story turns to the legal challenges brought against it by Indigenous groups, David. V Wright takes note of the recent Federal Court of Appeal decision in Bigstone Cree Nation v. Nova Gas Transmission Ltd., which he believes is instructive for how it will ultimately decide in the TMX case. In its decision the court upheld regulatory and political approvals to expand Trans Canada’s Nova Gas Transmission Ltd. System in northern Alberta.  Wright sees “an emerging consensus” in the wake of recent Supreme Court of Canada rulings in Clyde River and Chippewas of the Thames First Nation. The Crown, it seems, can “rely on an existing regulatory process like that of the NEB for undertaking consultation, and that Indigenous groups have a responsibility to make use of such processes if they wish to voice their concerns,” he writes.

Noting that after its election in 2015, the current government “created additional time and space” for deeper consultations, Wright concludes that the government is carefully following the playbook outlined in the Federal Court of Appeal’s Gitxaala Nation decision in 2016.  That ruling made headlines for quashing Canada’s approval of the Northern Gateway Pipeline Project, because of the government’s failure to adequately consult with affected First Nations:

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CBA Futures

Legal futures round-up

By Yves Faguy June 11, 2018 11 June 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.

Another month. Another law firm announces its intentions to go public. Mere weeks after Rosenblatt Solicitors announced its plans to list on the London Stock Exchange, UK regional firm Knights Law has confirmed its plans to follow suit, valuing the firm at £100m (This would make it the country's largest-ever law firm flotation). The firm says it will use the money raised in the IPO to pay down debt and finance growth through acquisitions.

On that topic, according to a Thomson Reuters survey of the UK’s top 100 law firms, 20 per cent of their finance directors are considering initial public offerings as a possibility to raise cash.  What’s more, 24 per cent would consider private equity as a source of funding.

It appears that there is growing interest in England’s liberalized market from investors, too. Goldman Sachs and Singapore’s sovereign wealth fund Temasek are getting together to invest £13m in UK-based legal AI company Eigen Technologies, as part of a Series A round of financing.

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Securities law

It’s becoming easier to be green – with better returns

By Doug Beazley June 7, 2018 7 June 2018

It’s becoming easier to be green – with better returns

 

It’s a very good time to be in the planet-saving business. Decades back, when the nascent “socially responsible investment” sector was just getting started, SRI was a boutique product.

It had scored some conspicuous victories — having played a key role in pressuring South Africa’s business community to publicly repudiate apartheid, for example – but it was still a niche market, a way for conscientious investors to sacrifice a few points of profit to their ethics. Nobody really expected SRI products to keep pace with the market. But then they did — and then some.

Genus’s Fossil-Free CanGlobe Equity Fund, which excludes oil companies and high-carbon emitters, has increased in value 102 per cent since it started in 2013. A comparable benchmark fund composed of large-cap Canadian and international stocks grew by roughly 81 per cent over the same period. The Jantzi Social Index, which tracks large-cap Canadian firms that meet a high standard of social and environmental responsibility, has seen those firms rise in value more than 41 per cent since 2006; the S&P/TSX 60 trailed at least two points behind.

 

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Defamation law

No country for libel tourism

By Justin Ling June 6, 2018 6 June 2018

No country for libel tourism

 

Canada isn’t set to become a favourite forum for libel tourists.

The Supreme Court ruled Wednesday that an Ontario court was not, in fact, the best suited to hear a defamation suit filed by a Canadian businessman against an Israeli newspaper. In doing so it allowed a stay on the proceedings.

But the decision split the bench. Justice Suzanne Côté wrote the majority decision, with Justices Russell Brown and Malcolm Rowe concurring. Justices Andromache Karakatsanis, Rosalie Abella and Richard Wagner all filed their own concurring reasons. Justices Michael Moldaver and Clément Gascon, as well as (then) Chief Justice Beverley McLachlin filed joint dissenting reasons.

While the outcome of the case might be relatively clear, the roadmap on dealing with forum selection for online libel cases is less so.

 

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