Legal Insights & Practice Trends

The Canadian Bar Association

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The Charter equality provisions turn 30

By National April 17 2015 17 April 2015

    This year, the Charter of Rights and Freedoms turns 33.  What makes this anniversary particularly noteworthy though is that it marks the 30th anniversary of the coming into force of Section 15, which protects equality and freedom from discrimination.

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    Are mutual funds causing anti-competitive behaviour?

    By National April 17 2015 17 April 2015

      Eric Posner points us to a recent paper by José Aznar, Martin C Schmalz and Isabel Tecu, who argue that common ownership – through mutual funds – can have adverse effects for market concentration and reduce competition.   The authors look at the US airline industry:

      Specifically, we use more than 10 years of market-firm-level panel data from the airline industry to show that common own- ership has a large and significant positive effect on product prices. We then exploit variation in common ownership concentration generated by the merger of two large asset managers that arguably occurred for reasons unrelated to route-level differences in US airline ticket prices, and find similar effects. In sum, we find that product prices are 3-11% higher because of common ownership, compared to a counterfactual world in which firms are separately owned, or in which firms entirely ignore their owners’ anti-competitive incentives caused by common ownership. Further, we estimate that the single acquisition of BGI by BlackRock caused U.S. airline ticket prices to increase by 0.6% on average across routes. These results imply a large deadweight loss, i.e., decreased efficiency, for the macroeconomy due to common ownership.

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      Legal headlines April 17, 2015

      By National April 17 2015 17 April 2015

        Here is a roundup of today’s legal headlines:

        Chinese journalist jailed for ‘leaking state secrets’

        Cabinet secrecy blocks rationale behind government’s advertising slogan

        Bell faces $750-million lawsuit over tracking of customer’s cellphone Internet usage

        No parole for 30 years for man who killed two in crowded Toronto mall

        Alberta law society under fire for dismissing complaints against Ezra Levant

        Canada's trans people face lengthy wait times for medical care

        Everest College grads want loan forgiveness for 'worthless' diploma

        Federal government to invoke terrorism clause to keep Harper family secrets private

        AI will create as many legal jobs as it destroys, says Seyfarth Shaw

        Eight out of ten lawyers say work routine is harming their health

        Respect women's right to wear veil in court, says Britain's most senior judge

        Julian Assange speech prompts judges to boycott Commonwealth Legal Conference

        As U.S. gay-marriage battle looms, attorneys fight over fees

        Big U.S. investors to ask SEC to require oil industry to detail risks of climate change

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        The Saguenay right-to-pray ruling

        By National April 16 2015 16 April 2015

          Hot on the heels of the Nur split decision came the top court’s ruling in Mouvement laïque québécois v. Saguenay (City), a near unanimous decision finding that reciting prayer – even non-denominational – at the opening of municipal council meetings breached the state's duty of religious neutrality. Already municipalities around the country are reviewing practices surrounding morning prayers.

          James Mosher explains why:

          A person who complains about a practice has to satisfy the legal test, so each case will be based on the particular evidence. But given this case involved a non-denominational religious prayer, it’s hard to imagine a religious practice that wouldn’t breach the duty of neutrality.

          A municipal council or other government authority that includes any religious practice or symbol in a proceeding should review it now. The decision is relevant across Canada even though it’s based on the Quebec Charter: every Canadian Province and Territory has human rights legislation prohibiting discrimination on the basis of religion, and every law in Canada must comply with the Canadian Charter of Rights and Freedoms’ protection of freedom of religion.

          Léonid Sirota is “delighted” with the ruling.

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          Taking your legal temperature on Law Day

          By Kim Covert April 16 2015 16 April 2015

            Today is Law Day in Canada, a date chosen to commemorate the signing of the Charter of Rights and Freedoms in 1982.

            CBA branches across the country take part in Law Day by planning a host of activities to raise awareness about lawyers and the law, many of which take place in schools or involve students. This is fitting because as the CBA’s report Reaching Equal Justice underlines, it’s important to empower people to participate in the justice system – and a big part of that ability to participate comes through education. “Enhanced public accountability and participation depends on informed and capable citizens and disputants or litigants,” the 2013 report says. “Strong commitments and resources must be devoted to building peoples’ individual legal capabilities.”

            In fact, the report says, law should be seen as a life skill, “with opportunities for all to develop and improve legal capabilities at various stages in their lives, ideally before a legal problem arises.”

            Stemming from that report, the CBA’s Access to Justice Committee has developed a series of 12 “legal health check” cards, six released last year and six new ones released today to coincide with Law Day. The cards, aimed at the general public, were created to provide some basic guidance for those dealing with life issues such as marital breakups, buying a first home, or writing a will.

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            Legal headlines April 16, 2015

            By National April 16 2015 16 April 2015

              Here is a roundup of today’s legal headlines:

              Ontario man detained in Egypt stopped from leaving country at last minute

              Save the Children: 'Moral imperative' to save migrants

              CWB privatization divides farmers

              Saguenay right-to-pray ruling: What it means for religious freedom in politics

              Des Hague, former CEO of Centerplate, sentenced for animal cruelty

              Thousands protest at Canadian mine in Greece over feared job losses

              Duffy trial could go long, judge warns, even into 2016

              Iran is raising sophistication and frequency of cyberattacks, study says

              Iowa man charged with sexual assault for intercourse with wife with Alzheimer’s disease

              GM is shielded from some ignition-switch suits, ruling finds

              Bakers makes China breakthrough with permit to practice local law

              EY becomes first and only organisation to pay fine over Lehmans role

              U.K. peer with Alzheimer’s will not be charged despite evidence of child abuse

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              Legal headlines April 15, 2015

              By National April 15 2015 15 April 2015

                Here is a roundup of today’s legal headlines:

                Google faces European charge it abused search dominance

                No checks on whether work actually done under senators' contracts, court hears

                Former Clippers owner's wife wins lawsuit over lavish gifts he gave to another woman

                Supreme Court to decide if prayers are acceptable before municipal meetings

                Nova Scotia to partially cover hike in obstetric malpractice fees

                Oil spill in Vancouver’s English Bay spawns likely lawsuits

                Court strikes 'blunt instrument' law of mandatory sentencing

                Manslaughter acquittal illustrates Quebec's naturopath dilemma

                Police act to keep lid on P.E.I. feud during sentencing for revenge murders

                How the RCMP tracked three Canadian girls in Egypt before they could join ISIL in Syria

                France Inc. bristles at law giving more votes to select few

                Ontario land surveyors can sue land registry managers for copyright infringement, court says

                WTO rules against U.S. dolphin-safe canned tuna labels

                Law firm sets up in Bermuda tax haven

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                Washington State shifts the bar on law firm ownership

                By Kim Covert April 14 2015 14 April 2015

                  ABS is all the buzz in the legal futures discourse. Allowing alternative business structures is a key recommendation of the CBA Legal Futures Initiative’s report, but they’re anathema to certain groups of lawyers and the focus of the campaign for the April 30 bencher election in Ontario.

                  But love ‘em or hate ‘em they do seem to be moving ahead.

                  Three years ago, in 2012, the state of Washington gave permission for Limited Licensed Legal Technicians to provide legal services in carefully controlled circumstances as a way to respond to increasing numbers of self-represented litigants in the state’s courtrooms, and other access to justice gaps.

                  On March 23 this year, the Washington Supreme Court went one step further – at the behest of the board of the state bar – and ruled that LLLTs can become minority owners in law firms and share fees with lawyers. The rule states that they may not act in a supervisory capacity over lawyers or have a controlling managerial authority in the firm.

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                  Nur: Mandatory minimums struck down

                  By National April 14 2015 14 April 2015

                     

                    From today's majority opinion, written by the Chief Justice of  the Supreme Court, which struck down mandatory minimum sentences for certain firearms offences for violating s.12 of the Canadian Charter:

                    Mandatory minimum sentences, by their very nature, have the potential to depart from the principle of proportionality in sentencing.  They emphasize denunciation, general deterrence and retribution at the expense of what is a fit sentence for the gravity of the offence, the blameworthiness of the offender, and the harm caused by the crime. They function as a blunt instrument that may deprive courts of the ability to tailor proportionate sentences at the lower end of a sentencing range. They may, in extreme cases, impose unjust sentences, because they shift the focus from the offender during the sentencing process in a way that violates the principle of proportionality.  They modify the general process of sentencing which relies on the review of all relevant factors in order to reach a proportionate result.  They affect the outcome of the sentence by changing the normal judicial process of sentencing.


                    General deterrence — using sentencing to send a message to discourage others from offending — is relevant. But it cannot, without more, sanitize a sentence against gross disproportionality:  “General deterrence can support a sentence which is more severe while still within the range of punishments that are not cruel and unusual” (R. v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90, at para. 45, per Gonthier J.). Put simply, a person cannot be made to suffer a grossly disproportionate punishment simply to send a message to discourage others from offending.

                    In its intervention before the Supreme Court of Canada, the Canadian Bar Association argued that judges should be able to consider less extreme measures than mandatory minimum sentences, and called for the adoption of a “safety valve” for offences other than murder.

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                    Obiter of the day

                    By National April 14 2015 14 April 2015

                      From last week’s Federal Court of Appeal ruling allowing a class action by a group of beekeepers to move forward against federal authorities.  The case relates to alleged damages arising from a ban on the importation of American honeybees (something to do with protecting Canadian bees from certain pests). 

                      The difference between private parties and public authorities matters not. For reasons never explained, Canadian courts have followed the same analytical framework for each: we examine the duty of care, standard of care, remoteness, proximity, foreseeability, causation and damages.

                      To make this analytical framework suitable for determining the liability of public authorities, courts have tried gamely to adapt it. And then, dissatisfied with the adaptations, they have adapted the adaptations, and then have adapted them even more, to no good end.

                      Hat tip: Paul Daly (who has a must-read write-up on the decision)

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                      Legal headlines April 14, 2015

                      By National April 14 2015 14 April 2015

                        Here is a roundup of today’s legal headlines:

                        Supreme Court quashes mandatory minimum sentences for gun crimes

                        Bill C-51: Thousands in fees levied for anti-terror bill constitutionality memos

                        Your old job skeletons can come back to haunt you

                        Former Blackwater security guards get lengthy jail terms over Iraqi deaths

                        PEI denies breach of contract, conspiracy claims in eGaming lawsuit

                        Kim Dotcom Megaupload case falters over sharing Canadian data

                        Analysis: Mulcair's 'Dutch disease' diagnosis was poor politics, but sound economics

                        Anti-vaccination parents could be denied government benefits in Australia

                        CBSA loses case to protect identity of undercover officer

                        Duffy’s expense claims included framing of family photos, court hears

                        Tennessee high court suspends four executions

                        SEC investigating sale of complex, risky securities to mom-and-pop investors -official

                        Paul Reiss chief argues against short term financial gain

                        Washington State opens door to legal technicians as law firm owners

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                        TWU, the Charter and charitable donations

                        By National April 13 2015 13 April 2015

                          Barry W. Bussey comments on Justice Jamie Campbell’s Nova Scotia Supreme Court ruling, which found that TWU, in requiring students to sign it’s famous Community Covenant, “ did not have to comply with the equality provisions of the Charter” because “ TWI is not the government”.  Bussey's main takeaway:

                          Campbell’s decision will not be binding in Ontario and British Columbia, but it will have persuasive value. It has exposed a legal blind spot of Canada’s legal academia and much of the legal profession. Almost every common-law faculty publicly expressed reservations about TWU’s admission to Canada’s law school fraternity. They found it unfathomable that a religious university operating a law school could legitimately hold the traditional view of marriage as a part of its admission criteria. The equality norm has become so comprehensive in legal analysis at Canada’s law schools that it allows little room for religious practice. The professors of law (and the NSBS) mistook the advancement of equality rights under the Charter in recent years as positive proof that religious freedom must now take a back seat, despite the long-held constitutional doctrine that there is no hierarchy of rights. Religion is viewed by many in the legal profession as antiquated, or so it would seem. Religion has been described as the nemesis of equality. The hierarchical view is expressed explicitly by former Supreme Court of Canada Justice Claire l’Heureux-Dubé who stated: I don’t believe that a fundamental right can be reasonable if it’s not compatible with the notion of equality.” The trump of equality rights at the expense of religious freedom is thus the blind spot that was exposed, and soundly rejected, by Justice Campbell’s ruling.

                          It is a blind spot that sees religion and religious views as having absolutely no place outside the churches, mosques, and synagogues of the nation.

                          On the other end of the debate, Elaine Craig has identified another blind spot.

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