Legal Insights & Practice Trends

The Canadian Bar Association
Equality rights

Free the girls!

By Kim Covert August 4, 2015 4 August 2015

“We will have no gorilla on our beach!” the city fathers of Atlantic City, N.J., roared in response to continuing instances of toplessness in that famed ocean playground.

Women in Atlantic City were not unnaturally hairy – the city fathers were responding to the arrests of 42 men who’d dared bare their pectorals in protest of restrictive decency laws. In 1935. It wasn’t until the next year, in Westchester, N.Y., that men finally earned the right remove their shirts – and undershirts – in public, according to gotopless.org.

Hunting for comparable Canadian statistics on the ubiquitous search engine is an exercise in needles and haystacks because even if you specifically ask for information about men (“Canada legal men topless,” for example) you’ll be inundated with 2.37 million references to women’s fight to free the girls.

Anyone who’d thought the matter was settled by the 1996 Ontario Court of Appeal’s decision in R. v Jacob was recently disabused of the notion.

 

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Blog

Duality or polarity?

By Mélanie Raymond August 4, 2015 4 August 2015

Do you lean to the right or the left? Are you in favour of gay rights or do you believe in more “traditional” values? Are you for greater equal access or for hiring based on the “meritocracy” principle?

Why not give our friends and acquaintances the right to be a bit of both? This is one of the questions explored by Ash Beckham in a recent edition of Ted Talk. Ms. Beckham, a proud representative of the gay community, gives a witty account of an incident where she was mistakenly taken for a man, and she chose not to spoil the magic of the moment for her niece, who had been waiting for hours just to meet a princess.

Ms. Beckham uses this example as a starting point for a discussion of conflicting values from a duality perspective. Rather than choosing a particular side, as suggested by the polarity principle, which governs most of our social intervention, she suggests we consider duality, i.e., the coexistence, in one person, of two opinions that may seem incongruous. For instance, her co-worker, a waitress in a restaurant, who, being originally from Mexico, is steeped in traditional values, but who acknowledges the legitimacy of the love between Beckham and her girlfriend by asking them what they did on the weekend.

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Legal profession

Client capture in the legal profession

By National August 3, 2015 3 August 2015

Here’s an interesting study published last year, in which Ronit Dinovitzer, Hugh Gunz, and Sally Gunz explore issue surrounding “client capture” – the notion that clients can sometimes exert considerable influence on their professional advisors – in the Canadian corporate law firm setting:

Classic models of the professions (e.g. Carr-Saunders and Wilson 1933) typically hold that professionals are independent, autonomous practitioners of a complex and arcane art for whom a primary responsibility is disinterested service to clients. More recently, scholars have suggested that this view neglects the pressures under which professionals, especially those in corporate practice, work. Leicht and Fennell (2001: 105) use the term ‘client capture’ to describe the propensity for a professional to be ‘captured’ by his or her client and render advice which has less to do with professional standards but which is more closely related to the commercial interest of both the client and the professional. Professionals who are ‘captured’ by their clients cannot then be relied upon to provide the advice their profession requires of them. That is not to say that the advice may necessarily encourage the client to break laws or otherwise behave unethically. The work of professionals is mostly unexceptionable, free of the dramatic events that surrounded, for example, Arthur Andersen’s dealings with Enron. Yet, whenever a professional is not acting within the dictates of their profession the client is potentially put at risk. For most of the time these risks are negligible—fortunately, the indictments of Enron and WorldCom executives are examples of rare events—but every so often they are not.

The authors identify four types of client capture – direct, indirect, serial and misdirected – which develop in complex and different ways in the commercial context, depending on the cast of individuals involved. 

In this article, we have presented an alternative view of CC based on the precept that lawyers specifically, and professionals generally, who work in an organizational context are likely to be subject to pressures not just from their client but also from colleagues working with their client. Furthermore, the professional may well be captured by their contact within the client organization. In such cases the professional overlooks the fact that the contact is an agent for the client, but is not the client. These complexities mean that, in practice, CC may be less of a matter of a professional being captured by their client, but rather that professionals are influenced by a great many actors within the client firm and their own firm.

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Voting rights

Waiving the social contract: expatriates and the vote, Cont’d

By National August 3, 2015 3 August 2015

Kate Andrews takes on the majority ruling in Frank v. Canada (Attorney General), on grounds that the social contract is not a legal principle which ought to justify restricting the vote to citizens who are Canadian residents. That’s what section 1 of the Charter is for: 

… the central idea of the social contract, that in an ordered society some individual rights must be sacrificed to a central authority for the collective good, is already enshrined in the Charter. It forms the very basis of section 1, which permits the government, in the pursuit of a pressing and substantial purpose, to place reasonable limits on individual rights.

Permitting the Crown to rely on the social contract to fulfill the requirement of a pressing and substantial purpose is circular at best, and Kafka-esque at worst. If the only reason that the Crown must give to limit rights expressly granted to Canadians by the Constitution is that the nature of government means that it is sometimes permitted to do so, the pressing and substantial purpose test is stripped of any meaning.

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Legal marketplace

No hiding behind the Swiss Verein

By National July 31, 2015 31 July 2015

Recently, a U.S. International Trade Commission judge disqualified Dentons US LLP from representing Cleveland-based RevoLaze LLC, in a patent suit against Gap Inc. Gap had filed the motion to disqualify arguing that it had long been a client of Dentons Canada, which placed the firm in a conflict of interest. Citing ABA Model Rule 1.0 in his ruling, Judge Charles Bullock rejected Dentons’ argument that the Swiss Verein structure under which the global firm is organized – with no sharing of revenues or pooling of profits among legally independent member firms – essentially established an “ethical screen” between Canadian and U.S. entities. His conclusion:

Dentons holds itself out to the public as a unified global law firm in order to attract business, and Dentons’ continued representation in the face of a direct conflict would both contradict this public image and negatively impact the law profession as a whole.

Collette Corser calls the decision “alarming” for other Swiss Verein law firms:

The fact that Judge Bullock relied on the marketing perception rather than the independently run legal entities of the various Dentons branches may give other verein structured law firms pause in how they continue their operations. As Dentons recently issued a statement that it has an “acute” interest in undoing this disqualification order, we can expect to see more of this issue in the near future.

So will the popularity of Swiss Vereins be short lived?  Not necessarily, writes Mark Cohen. and they may be suitable for some firms. But it makes the burden of managing conflicts more difficult:

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Law of evidence

Can software be a substitute for expert opinion?

By National July 30, 2015 30 July 2015

Commenting on a recent Alberta Court of Appeal ruling turning on a construction dispute, Shaun Fluker considers the impact of electronically generated information on the law of evidence:

Electronically generated information is not a new concept for the law – but I do think the capacity of the internet and ever-increasing reliance on computers is stretching these issues into new territory: Consider the proliferation of Facebook or Twitter to communicate, and how email has almost replaced traditional means of information delivery. These mediums have and will continue to require some adjustments to traditional ways in the law.

One issue the Court looks at here is the reliability of mechanically generated records. A primary objective of the law on evidence is to screen out unreliable information. The Court observes that computer-generated records are generally admissible because of an inherent reliability, even though we are unable to precisely examine how the information is generated, and the person seeking to rely on this information does not have to prove the underlying processing technology works. The disputed evidence here consisted of survey data collected by electronic means and compiled in software, and the Court concludes this information easily passes the test for reliability (at paras 17 – 19).

Photo licensed under Creative Commons by Paul L Dineen.

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Employment law

The letter of the contract

By Kim Covert July 30, 2015 30 July 2015

If you’re fired and then immediately rehired, are you entitled to severance pay?

That depends on the wording in your employment contract, according to an Ontario arbitrator who awarded severance pay to the former (and current) police chief and deputy police chief in Peterborough, Ont.

Some people in the city are hopping mad about the award – estimates differ but some say it comes to a total of about $400,000, and the mayor was quoted as saying it was closer to $500,000.

The issue came up when the city’s police service was de-amalgamated and then reconstituted under a new board. The chief and deputy chief both had their employment terminated on Dec. 31, 2014, and were rehired as of Jan. 1, 2015, with no interruption in benefits.

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Supreme Court of Canada

An unconventional but welcome pick

By Justin Ling July 29, 2015 29 July 2015

An unconventional but welcome pick

Though the announcement of Canada’s newest appointment to the top court stirred some mild controversy in the national press, Supreme Court-watchers are rather more optimistic about the unconventional — albeit expected — pick.

Russell Brown — usually referred to as just “Russ” — was appointed from the Alberta Court of Appeal, after a brief stint on that bench, and was previously Associate Professor and Associate Dean at the University of Alberta. Brown previously served as Associate Counsel at firms in Alberta and British Columbia — Miller Thomson LLP, Carfra & Lawton and Davis & Company, according to a release from the Prime Minister’s Office.

But the job that has drawn the most attention — and which is not mentioned in the government’s announcement about his appointment — was on the advisory board of the Justice Centre for Constitutional Freedoms.

“The free and democratic society which the Canadian Charter of Rights and Freedoms holds out as our ideal can only be fulfilled by honouring and preserving Canada’s traditions of freedom of speech, freedom of religion, freedom of association, other individual rights, constitutionally limited government, the equality of all citizens before the law, and the rule of law,” the organization’s mission statement reads on their website.

“And yet these core principles of freedom and equality continue to be eroded by governments and by government-funded and government-created entities like Canada’s public universities, and human rights commissions.”

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Legal profession

Statistics in the legal profession

By National July 29, 2015 29 July 2015

Statisticians are often called upon to inform the credibility of evidence introduced in court, and as Eric Posner points out, the term “statistically significant” makes its way frequently into court opinions and law journals.  The obvious problem, in his view:

Few lawyers and hardly any judges have statistical training or more than a rudimentary understanding of statistics. This is all too evident in judicial opinions. Law schools are just beginning to catch up–by hiring people with statistical training–but haven’t figure [sic] out a way to give students usable statistical knowledge.

Tim Hartford, in a recent column, illustrates the devastating consequences poor handling of statistical tools can have on trials, particularly in criminal matters:

Consider the awful case of Sally Clark. After her two sons each died in infancy, she was accused of their murder. The jury was told by an expert witness that the chance of both children in the same family dying of natural causes was 73 million to one against. That number may have weighed heavily on the jury when it convicted Clark in 1999.

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Anti-corruption

Quebec's transparency law for the extractive sector

By National July 29, 2015 29 July 2015

Ten days after the federal Extractive Sector Transparency Act came into force, imposing transparency measures and reporting obligations on the payments made make to foreign governments (as well as aboriginal groups) by the oil & gas and mining industry, the Quebec government tabled a similar bill (Bill 55). Erik Richer La Fleche and Roger Forget offer a few reasons why the province is planning to adopt a law with “no substantive differences between the two statutes,” beyond not wanting to cede power over its lawmaking in matters dealing with natural resources:

Bill 55’s main objective is not to fight corruption in remote locales. Rather, the main purpose of Bill 55 is to facilitate the development in Quebec of oil, gas and mining projects. A rapidly aging Quebec population content with the status quo has tended in recent years to be hostile to new extractive and industrial projects. Indeed, it might be said that Quebec has a bad case of NIMBYism. What the Quebec government is trying to do is increase the social acceptability (social license) of projects by providing objective information to its population. Experience has shown that local populations properly informed of the tangible benefits offered by projects are far more likely to support them. The Quebec wind power industry is a case in point. Quebec is currently working on a social acceptability policy and Bill 55 is an essential building block of that policy.

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The judiciary

Remaking Canada's judiciary

By National July 28, 2015 28 July 2015

Léonid Sirota reacts to Sean Fine’s weekend article on how the Harper government is remaking the judiciary in Canada:

The one disturbing fact that Mr. Fine presents is that some sitting judges actively lobby the government for promotions. Such lobbying, it seems to me, creates a real danger that the judge will try, whether consciously or not, to ingratiate himself with the government in his or her decisions. In other words, it creates an appearance of bias if not actual bias. Judges should strive to remain above such suspicions. The possibility of promotion is a weak spot in the arrangements protecting judicial independence, and judges themselves should not be exploiting it.

There is nothing improper, however, in a government seeking to appoint judges with whose ideological leanings it is comfortable. Of course, judicial appointments should be merit-based ― in the sense that every person appointed to the bench should deserve to be, by virtue of his or her accomplishments and character. But that’s just threshold. Ideology, in my view, can properly be taken into account in deciding whom to appoint among the candidates who can get over that threshold. (It’s worth noting that, as Mr. Fine points out, the committees that screen applicants for judgeships rate many more as “recommended” ― and used to rate more as “highly recommended” when that was an option ― than there are positions available).

 

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Opinion

Mitigating the perils of international child abductions

By Senator Raynell Andreychuk July 28, 2015 28 July 2015

International travel and transnational marriage have become increasingly common.

So has divorce.

When a relationship falls apart, it is not unusual for one or both parties to want to return to their country of origin. In a marriage breakdown, children can be the issue of discord, with the child’s best interest being lost.

When there are children involved, and one parent decides to bring the children from the relationship along without the consent of the other parent, it can lead to complex legal problems, requiring coordination between different jurisdictions, as well.

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