Legal Insights & Practice Trends

The Canadian Bar Association

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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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        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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          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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              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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                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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                  Metatags and IP rights

                  By James Plotkin June 19 2015 19 June 2015

                    One of the key goals of trademark law is to protect businesses against commercial misappropriation of their brands; but a recent Federal Court ruling illustrates how the current trademark legal regime is ill-equipped to address some unfair business practices in the online space.

                    In Red Label Vacations Inc. (redtag.ca) v. 411 Travel Buys Limited (411travelbuys.ca), the Federal Court had occasion to consider whether using metatags could constitute copyright infringement, trademark infringement, passing off or depreciation of goodwill. Justice Manson dismissed all of these claims. This decision is of particular interest since the reasons (partly) extend beyond the facts of the case and make a broader legal statement on the status of metatags as IP in Canada.

                    A metatag is a piece of information contained in a webpage’s code. Its purpose is to describe the contents of the page to help search engines place the page in search results based on the search terms used. In this case, the defendant used metatags that were either identical or very similar to the plaintiff’s registered trademarks. It also evidently copied these metatags from the source code on the plaintiff’s website.

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                    Truth, reconciliation and legal education

                    By Kim Covert June 18 2015 18 June 2015

                      How do we measure success in the education and training of lawyers?

                      That, according to the CBA Legal Futures report released last year, is one of the key questions the profession must ask when considering the future of legal education.

                      Futures considered whether law schools overly rely on LSAT scores and concluded that, instead of recommending elimination of the LSAT, more work is needed on ways to assess and measure other criteria for being a good lawyer. Participants in the consultations suggested that these criteria might include creativity, empathy, adaptability, resilience, and breadth of perspective.

                      Enter the Truth and Reconciliation Commission’s report, the executive summary of which was released earlier this month. Among the report’s 94 recommendations are two that deal specifically with Canada’s legal system.

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                      Are Uber drivers employees in Canada too?

                      By National June 18 2015 18 June 2015

                        It will come as no surprise that Uber is appealing the recent California Labor Commission ruling that concluded that Uber drivers are employees, and not contractors. Needless to say that the ruling is major problem for the rideshare service, as Reuters reports:

                        The ruling, filed on Tuesday in state court in San Francisco, was the latest in a host of legal and regulatory challenges facing Uber and other highly valued start-ups in the United States and other countries.

                        The commission said Uber is "involved in every aspect of the operation."

                        Classifying Uber drivers as employees opens the company up to considerably higher costs, including Social Security, workers' compensation and unemployment insurance. That could affect its valuation, currently above $40 billion, and the valuation of other companies that rely on large networks of individuals to provide rides, clean houses and other services.

                        Uber had argued that its drivers are independent contractors, not employees, and that it is "nothing more than a neutral technology platform."

                        But the commission said Uber controls the tools driver use, monitors their approval ratings and terminates their access to the system if their ratings fall below 4.6 stars.

                        Eric Loomis explains:

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                        Is there a purpose to taking the bar?

                        By National June 17 2015 17 June 2015

                          Lawprofblawg makes the case (in the U.S. at least) for killing the bar exam.  If not, at the very least, let's make it worth the effort:

                          It is no answer to say that we have always done it this way (we haven’t) or that since we had to go through it, why shouldn’t the new applicants? Applicants shouldn’t be forced to endure the same pointless process as those endured by graduate students, pledges to fraternities, and new members of athletic teams.

                          Instead, the bar examination should fulfill some important purpose. Namely, it should determine which applicants are competent in the practice of law, and which are not. Given the unrealistic nature of the current examination, it cannot possibly fulfill that purpose. A single-day, performance-based exam without the useless essay and multiple-choice portions of the bar exam would be a better, more efficient screening device. This would allow bar prep employees to find more useful work other than the taking of bar examinations and reduce the excessive levels of anxiety and monetary costs to applicants forced to watch videotaped lectures from professors both living and dead.

                          Where's the harm in forcing people to endure what others have suffered before them?

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