Legal Insights & Practice Trends

The Canadian Bar Association

National Blog

Lawyers embracing AI

By National May 29 2015 29 May 2015

    Thomas H. Davenport and Julia Kirby outline a five-step program for human collaboration with smart machines in the workplace.  Here’s their rationale for, say lawyers, stepping aside on for certain tasks and focusing on the human aspect of the law:

    We don’t want to create the impression that stepping aside is purely for artists. Senior lawyers, for example, are thoroughly versed in the law but are rarely their firms’ deep-dive experts on all its fine points. They devote much of their energy to winning new work (usually the chief reason they get promoted) and acting as wise counselors to their clients. With machines digesting legal documents and suggesting courses of action and arguments, senior lawyers will have more capacity to do the rest of their job well. The same is true for many other professionals, such as senior accountants, architects, investment bankers, and consultants.

    Matt Coatney has some more specific suggestions for lawyers.
    All of which are fine, but the articles don’t quite address the uncomfortable challenge posed by entry-level jobs becoming increasingly susceptible to automation.  Even rainmakers have to start somewhere.

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    Judge’s top 10 tips for litigators

    By Kim Covert May 29 2015 29 May 2015

      Former Federal Court judge Judith Snider presented her top 10 tips for IP litigators at the Intellectual Property Law Section’s IP Day Thursday in Ottawa.

      Snider, who now works in arbitration and mediation with JAMS in Toronto gave a lunchtime keynote address replete with baseball analogies, and that’s where her list starts – with the pitch:

      1. Avoid last-minute motions – and especially motions to adjourn.
      2. Respect the role of experts – they’re there to educate the court, not to make your case.
      3. Keep your opening statement brief and to the point.

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      CBA seeks to intervene in appeal of Nova Scotia TWU ruling

      By National May 28 2015 28 May 2015

        The CBA is seeking leave to intervene in the case of Nova Scotia Barristers’ Society v. Trinity Western University at the Nova Scotia Court of Appeal.

        In January the Supreme Court of Nova Scotia held that the NSBS did not have the authority to dictate policy within law schools — in this case the requirement that law students swear, under TWU’s Community Covenant, to abstain from sex outside of the biblical definition of marriage between man and woman.  The law society had previously voted not to recognize TWU law degrees unless it agreed to amend the Community Covenant or exempt law students from signing it.

        TWU has argued that the Community Covenant is protected by the freedom of religion guarantee in the Canadian Charter.
        Representing the CBA on a pro bono basis are Amy Sakalauskas (Halifax), Mathieu Bouchard (Irving Mitchell Kalichman LLP, Montreal), and Susan Ursel (Ursel Phillips Fellows Hopkinson LLP, Toronto).

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        Bill C-59 will make document destruction retroactively legal

        By Kim Covert May 28 2015 28 May 2015

          On Monday, Bill C-59, the federal government’s latest omnibus bill containing budget implementation measures, passed second reading and was referred to standing committees for discussion.

          This bill is controversial for many reasons – first of all, nobody but the government presenting them likes omnibus bills, which tend to contain a variety of legislation that has nothing to do with the ostensible matter at hand.  This one contains measures to allow the government to change civil servants’ sick leave provisions, bypassing collective bargaining which is currently underway; and also contains legislation that would serve to erase evidence that the RCMP had destroyed information in contravention of the Access to Information Act, to protect the Mounties from possible criminal charges.

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          Time for a new privacy protection regime?

          By National May 22 2015 22 May 2015

            Craig Forcese gave a talk in April at Queen’s University Policy Forum.  It’s a fascinating, and instructive, read for anyone struggling to reconcile concerns about privacy protections with modern-day security imperatives.  He proposes a creative solution to reforming our current — and outdated — privacy protection regime (conceived in the pre-digital age) by archiving bytes of data in separate firewalled databases that would require “firewall warrants” to search the data.  Reading his proposal, the immediate objection that comes to mind is whether any of this is logistically possible – a matter Forcese himself seems to have considered:

            In an information-rich environment where government itself hosts vast quantities of data, the prospect of leakage between firewalls established between different wings of the same institution must be regarded as real. 

            And so the existence and maintenance of the firewalls must be audited periodically by an arm’s length official – a natural role for a data protection officer such as the privacy commissioner. 

            More than this, this person should audit how firewall warrants have been used, and provide feedback to authorizing judges.  This means that this person must have robust powers and substantial resources.

            Read the whole thing here.


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            Crowdfunding justice

            By Justin Ling May 21 2015 21 May 2015

              Michael Spratt is testing two theories: can the government retroactively extend how long a person must wait for a pardon, and will people pay to find out?

              Spratt is a partner at Abergel Goldstein & Partners, and he’s trying to crowd-fund a constitutional challenge for one of his clients. Michael Charron — his client – confessed to trafficking cocaine in 2008. He was, himself, an addict, and was dealing to feed his habit. He accidentally tried to sell to an undercover police officer.

              Charron confessed to the crime, took responsibility for his actions, and underwent addiction counseling. He cleaned up, and went back to school. He was counting on applying for a pardon after his life was adequately patched up.

              But in March 2012, the Conservative Government introduced Bill C-10. It was their omnibus justice bill that upended many aspects of the criminal justice system. One of the biggest changes came to the pardon system. In fact, it did away with “pardons” altogether. Bill C-10 introduced the idea of “record suspensions.” More importantly, it means that those with convictions will have to wait longer before they can suppress their criminal conviction.

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              A better ISDS regime

              By Yves Faguy May 21 2015 21 May 2015

                Concerns about the investor-state dispute settlement (ISDS) have been making it back into the headlines lately, thanks in part to public pronouncements by the likes of Elizabeth Warren and other critics of the Trans-Pacific Partnership trade deal.  Joseph Stiglitz also recently signed a joint letter with four legal experts to Congress, arguing that  under the best of circumstances, “the threat and expense of ISDS proceedings have forced nations to abandon important public policies.”

                In a recent piece, Nathalie Bernasconi-Osterwalder takes note of attempts by states, including Canada, to redefine the rules governing ISDS.  Proposed improvements run the gamut from introducing stronger transparency rules to requiring investors to exhaust local remedies before launching arbitration claims against states.  But reforming the current system at the margins isn’t enough, she writes.  What the world needs is a new process and new mechanisms involving more stakeholders:

                A new mechanism could ensure not only broad access to justice and the ability to resolve disputes between different stakeholders, but its functions could also be more designed. For example, it could set up a wider range of “services,” such as mediation and conciliation. Mediation would differ from what is currently referenced in some investment treaties, which typically foresee mediation between the state and the investor. A new mechanism could propose a mediation process involving a wider range of stakeholders, including communities affected by the investment, for instance. Beyond mediation, a newly created mechanism could also incorporate an investigation and fact-finding function, inspired by existing processes such as the inspection panels known in some of the development banks.

                An investment dispute resolution facility would not necessarily have to be linked to a certain body of substantive law. Like at the ICJ, jurisdiction could be based on a specific agreement amongst all the parties involved to submit a given dispute to the international dispute resolution facility. Unlike at the ICJ, personal jurisdiction could be broader and based on agreement to resolve a dispute among states, investors, individuals, local communities and other interested groups. In addition, jurisdiction could be based on a treaty, contract or other instrument. Instruments such as investment contracts and treaties, community development agreements, or any future binding instrument on business and human rights, for instance, could refer disputes to such a dispute resolution facility.

                Photo licensed under Creative Commons by Backbone Campaign

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                Aussie police accuse Nickelback of ‘crimes against music’

                By Kim Covert May 21 2015 21 May 2015

                  Any defence litigators out there brave enough to take this one on? The accused can probably pay…

                  Police in Queensland, Australia, put out a BOLO (be on the lookout) notice on the Canadian rock band Nickelback, currently touring the country, accusing them of “crimes against music.”

                  A crime against music is hard to prove – particularly given what you may perceive to be a wealth of offenders, depending on your taste.

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                  "Slagging off the Canadians using derogatory terms"

                  By National May 20 2015 20 May 2015

                    This is quite an (entertaining) exchange from question period in New Zealand's Parliament over comments the country's trade minister's made during negotiations on the proposed Trans-Pacific Partnership comparing Canada's dairy industry to something one would see "in the former Soviet Union."

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                    Ireland, privacy haven

                    By National May 19 2015 19 May 2015

                      Ireland used to attract tech companies to its shores by setting itself up as “tax haven” of sorts.  There is now another reason to set up shop there: Online privacy protection.

                      Henceforth, Twitter will be handling its users’ account information and grievances under Irish privacy lawsApple has also announced its intention to build two datacenters in Ireland and Denmark, expected to be operational in 2017.  And the file transfer site Dropbox has moved it user accounts outside of North America to the Emerald Isle.

                      All these moves come at a time when the future of U.S.-EU Safe Harbor Program – the mechanism intended to ease the transfer of personal data between the EU and the US – is very much in doubt on account of growing concern, in the wake of the Snowdon revelation, that the arrangement doesn’t offer adequate privacy protection to EU data. Negotiations between the EU and the US are currently underway for a new deal on data-sharing agreement. And next month, the Advocate General of the ECJ is set to publish his opinion on preventing data transfers to the US.

                      In the meantime, Mike Masnick offers two reasons why tech companies are flocking to Ireland in particular:

                      First: Ireland is also seen as having some of the most company-friendly privacy laws in the EU, though those are also coming under some amount of scrutiny. But, at the same time, by claiming that users are now under the Irish company, it gives Twitter and Dropbox at least some power to try to say no to US government requests for information. So, depending on if you're more afraid of government intrusions in your data than corporate intrusions (as I am), then these moves are probably good for your privacy.

                      Photo licensed under Creative Commons by j0sh (

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                      Field notes: Immigration law's LMIA nightmare

                      By Kim Covert May 19 2015 19 May 2015

                        Filed under “If you thought you were having a bad day.”

                        If you’re an immigration lawyer, then LMIA is a four-letter word.

                        LMIA stands for Labour Market Impact Assessment and it’s a key part of the Express Entry System which came into effect in January. Under the system, employers offer permanent jobs to foreign workers who can then immigrate to Canada as skilled workers.

                        At a session on the LMIA at the recent CBA National Immigration Law Conference, civil servants who administer the program acknowledged lawyers’ difficulties by saying, “At the end of the session we’ll have time for questions, and hopefully we’ll have answers – if not, we’ll have sympathy for your level of frustration.”

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                        The perils of floating a law firm

                        By National May 19 2015 19 May 2015

                          In the wake of Gately’s announcement that it plans to go public, Kevin Reed reminds us of some lessons learned from the many accountancies who were seduced by the lure of outside investment, but were unable to ensure sustainable growth:

                          Being listed places you under the gaze of shareholders, and involves lots of public reporting. In other words, the potential for dirty linen to be washed in public. Professional services firms are 'people businesses', and negative attention makes life a lot tougher on retention and recruitment.

                          External shareholders and investors want to see that share price tick up and up. As such, this puts pressure on the firm to operate in shorter timeframes.

                          And finally, just for good measure, converting partners into a directorship is fraught with difficulties. And this is the crux: can the firm keep up its 'partner' remuneration when another layer of shareholders and dividend receivers has been lobbed on top of them? A problem exacerbated if the share price drops - the equity value for those within the firm also falls. And who makes the decisions? Such a move makes it hard to remain collegiate.

                          Of course there is already an example out there of a successful law firm listing: Australia’s Slater & Gordon, a large personal injury firm, was the first in the world to go public. It’s been on an acquisition spree ever since.

                          But it is nonetheless striking how timid law firms in England and Australia have been about going public.  Reed’s point about adding an extra layer of shareholders is no small matter, particularly for firms operating in multiple jurisdictions, notably those that that have yet to embrace ABS as a new model of legal practice.

                          Photo licensed under Creative Commons by Tax Credits



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