Legal Insights & Practice Trends

The Canadian Bar Association

National Blog

Labour standards on the decline

By Kim Covert March 31 2015 31 March 2015

    In February, the Ontario government launched The Changing Workplace Review to look at things like the rise of non-standard employment practices; the rising prominence of the service sector; the impact of globalization and trade liberalization; and diversity in the workplace, among others.

    The review, led by lawyer Michael Mitchell, formerly of Sack Goldblatt Mitchell LLP, and management labour lawyer John Murray, a former justice of the Ontario Superior Court, will consider how the Labour Relations Act and the Employment Standards Act could be amended to better protect workers.

    Mitchell and Murray are expected to hold public consultations starting sometime this spring, but for background reading beforehand they might want to look at a report released today by the Workers Action Centre titled Still Working on the Edge: Building decent jobs from the ground up.

    Ontario is developing a low-wage economy, writes the report’s author, Mary Gellatly, of Parkdale Community Legal Services in Toronto. In 2014, 33 per cent of the province’s workers were working in low-paying jobs compared with 22 per cent in 2004.

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    The long-gun registry ruling

    By National March 31 2015 31 March 2015

      Following last week’s 5-4 split decision, in which the Supreme Court affirmed the constitutionality of a federal law requiring the destruction of long-gun registry records, here are a few reactions.  Paul Daly notes that the dissent is likely to mark a beginning of sorts in the exploration of cooperative federalism:

      Interestingly, the dissent was not especially radical in its use of cooperative federalism. Although the dissenters were convinced that the registry was a cooperative effort (at paras. 115-135), they did not strike down s. 29 as violating the principle of cooperative federalism. Rather, with the principle of cooperative federalism in mind, they closely analyzed whether s. 29 was truly an exercise of the federal power in respect of criminal law. In a passage that is likely to be cited in decisions and debates to come, they stated:

      [T]he dismantling of a partnership like the one established with respect to gun control must be carried out in a manner that is compatible with the principle of federalism that underlies our Constitution. Thus, Parliament or a provincial legislature cannot adopt legislation to terminate such a partnership without taking into account the reasonably foreseeable consequences of the decision to do so for the other partner. The courts must, in considering whether legislation or a statutory provision having as its purpose to dismantle the partnership is constitutional, be aware of the impact of that legislation or provision on the other partner’s exercise of its powers, especially when the partner that terminates the relationship is intentionally bringing about that impact (at para. 153).

      LĂ©onid Sirota takes on the dissenters – all Quebec justices –for proposing an “unpragmatic” remedy – calling on the parties to negotiate a solution through the political process.

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      Legal headlines, March 31, 2015

      By National March 31 2015 31 March 2015

        Here is a roundup of today’s legal headlines:

        Analysis: Bill C-51 amendments seem unconnected to committee process

        Air Canada Flight AC624 passengers seeking class action lawsuit

        Canada's economy shrinks 0.1% on weakness in retail, wholesale trade

        Corporate profit margins at 27-year high: CIBC

        Germanwings crash prompts Lufthansa insurers to set aside $300M for claims

        Climate change treaty will include promise of 28% emissions cut from U.S.

        ISIS mission: Canadian airstrikes on Syria could come within days

        Modern treaties smooth development for some First Nations groups

        Body part as evidence in Cindy Gladue murder trial comes under fire

        Lawyers warned on ethics over inaccurate LinkedIn endorsements

        Facebook 'tracks all visitors, breaching EU law'

        Robin Williams restricted use of his image for 25 years after his death

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        Wind turbines: The battle is over?

        By National March 30 2015 30 March 2015

          Dianne Saxe on the latest in wind-turbine litigation, following the latest decision by Ontario's Divisional Court:

          The Tribunal has heard appeal after appeal against renewable energy approvals (REAs) for wind farms, many raising substantially the same health concerns (commonly concerns about noise, vibration, annoyance, flicker etc.) based on substantially the same evidence. The Tribunal has decided, over and over, that this evidence does not meet the statutory test, i.e. does not show that engaging in the Project in accordance with the REA will cause serious harm to human health. Accordingly, no Ontario REA has been struck down on the grounds of human health concerns.

          Meanwhile, we hear that health concerns about wind turbines are lower in areas where the turbines are operating than in areas where they are merely proposed.

          So it makes sense that some wind farm neighbours are deciding to settle their ERT appeals, rather than to incur the full legal costs of a hearing they are likely to lose.

          Photo licensed under Creative Commons by Kyle MacKenzie

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          Settling family matters

          By National March 30 2015 30 March 2015

            John-Paul Boyd shares his thought on the need to foster a “settlement-oriented legal culture,” particularly with respect to family law matters. Perhaps the most interesting insight gleaned from his post is his suggestion that lawyers keep reminding clients of the option to settle a file, particularly once “time has worn away the sharp edges of the parties’ emotions.” He also tries to reconcile a lawyer’s duty to advocate for a client with a settlement-oriented approach, pointing to the CBA’s Code of Conduct:

            The initial advice we give to our clients should be the sort of advice that identifies and discourages unreasonable expectations and dampens the flames of conflict. We should approach agreements with an attitude of respect for voluntary compromise, and accept that clients are motivated to settle by a host of intangible values in addition to their legal interests. We should discourage unnecessary litigation to the extent possible, even if it comes at the cost of a heavier personal file load. We should emphasize the need for global fairness to the family over unfair but optimal results for the individual, and address this consideration openly and frankly with our clients. We can be strong advocates for our clients while diligently pursuing our duty to encourage settlement as our codes of conduct require.

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            Slater & Gordon's big play

            By National March 30 2015 30 March 2015

              Australian-based Slater & Gordon, a rare example of a publicly-traded law firm, is acquiring the professional services division of Quindell Plc, including its legal services arm, for £623m ($CAD 1.1 billion), as part of a move to become the UK’s biggest personal injury firm. Adele Ferguson calls it a risky move:

              The big question that needs to be asked of investors is what has Slater & Gordon bought? Quindell is an aggregator gone wrong.

              UBS wrote an in-depth report on Slater & Gordon on March 16 that referred to it as "a serial acquirer of larger and larger businesses". It looked at upside and downside scenarios for the business. On the downside it said there was a growing risk of operational issues as management focuses more and more attention on integrating its recent acquisition spree. "Should no organic growth be generated and Slater & Gordon's full-year 2016 price to earnings multiple de-rate to 10 times from 17 times, we estimate the share price could fall to $4," the note said. This is compared with its current share price of $7.55 a share.

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              Bill C-51 and interpreting CSIS' powers

              By National March 30 2015 30 March 2015

                In the wake of reports indicating that Ottawa will introduce amendments to Bill C-51, Jon Penney revisits the question surrounding the trust Canadians should place in our intelligence services exercising restraint over the use of their powers:

                Even with the limited oversight we have concerning CSIS’ secretive operations, it appears the agency takes an equally aggressive approach.  Justice John Major, in the Air India Tragedy Commission Final Report, found CSIS took an “expansive view” of its mandate. More recently, CSIS’ own Inspector General (an office that the Government eliminated in 2012) reported that the agency regularly flouted its own rules and policies. And in one of the few court rulings concerning CSIS’ clandestine activities made public (at least in part), Justice Richard Mosely essentially found CSIS had misrepresented its activities to the Court in order to circumvent legal restrictions on its co-operation with other foreign spy services.

                CSE, which assists CSIS with foreign intelligence gathering, also acts aggressively, exploiting uncertainty about the legal status of metadata (that is, data about data) by “incidentally” collecting troves of it on Canadians’ communications, conducting “tradecraft” field tests involving tracking, analyzing, and correlating public WIFI traffic data, or tracking and analyzing millions of downloads online daily for suspicious activities. These are not the activities of restrained or reserved security agencies.  (For more on CSE’s activities see discussions here and here by my Citizen Lab colleagues Professor Ron Deibert and Christopher Parsons)


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                Legal headlines March 30, 2015

                By National March 30 2015 30 March 2015

                  Here is a roundup of today’s legal headlines:

                  National Firearms Association ignoring questions about C-51, members complain

                  Maple Lodge Farms investigating footage that allegedly shows ‘cruelty’ at slaughterhouse

                  Arthur Porter's rights violated in Panama prison: UN report

                  Government moves to cap 'predatory' consultant fees for disability tax credit

                  Ehud Olmert, ex-Israeli PM, guilty in corruption retrial

                  Indiana's anti-gay law sparks protest, condemnation

                  Non-profits need clear donor rules, national group says

                  U.S.-Mexico sign climate co-operation deal as Canada stalls on UN emissions bid

                   Canadian diplomats saw ISIS coming months before Iraq invasion

                  Amazon tests delivery drones at secret Canadian site

                  Personal details of world leaders accidentally revealed by G20 organizers

                  Slater & Gordon looks set to acquire Quindell's professional arm

                  Law firms put more focus on cyber coverage

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                  Legal headlines March 27, 2015

                  By National March 27 2015 27 March 2015

                    Here is a roundup of today’s legal headlines:

                    Divided SCC rules gun data can be destroyed

                    Vic Toews lobbying to be reviewed by federal ethics commissioner

                    Two crew members now required in plane cockpits: Transport Canada

                    New group to enforce animal welfare in Saskatchewan

                    Veteran and double amputee has to prove his legs are gone – every year

                    Expat voters' rights battle costs Harper government $1.3M so far

                    Montreal's Dov Charney seeks $40M from company he founded, American Apparel

                    California may have no choice but to let ‘kill all the gays’ ballot initiative go forward

                    New Brunswick bans fracking, plans ‘prudent’ impact study

                    Specialist law firms predicted to grow out of Obama trade accords

                    A victory for the rule of law, a warning to Prince Charles: Editorial

                    Indiana governor signs religious freedom bill that could affect gays

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                    Expert testimony and the adversarial system

                    By National March 27 2015 27 March 2015

                      As part of our series of clips on the evolving uses of expert evidence in court, Errol Soriano discusses how new approaches to expert testimony could affect the adversarial system of litigation.

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                      'Clearly not constitutional:' CBA appears on Bill C-51

                      By Kim Covert March 26 2015 26 March 2015

                        “My name is Hassan Yussuff and that is one of the reasons why I’m against this bill.”

                        That was the president of the Canadian Labour Congress yesterday as he began his presentation to the Public Safety Committee hearing into Bill C-51.

                        He appeared Wednesday evening along with the Canadian Bar Association and four other witnesses: the Mackenzie Institute, the Council for Muslims Facing Tomorrow, the American Islamic Forum for Democracy, and a security expert with 20 years in the intelligence community.

                        Eric Gottardi, chair of the CBA’s Criminal Justice Section,  and Peter Edelmann, an executive member of the Immigration Law Section, appeared in support of the CBA’s submission. Together the two had just 10 minutes so were only able to touch on a few key items of concern.

                        “It is difficult to overstate how important this bill is,” Gottardi told the committee.

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                        Legal headlines March 26, 2015

                        By National March 26 2015 26 March 2015

                          Here is a roundup of today’s legal headlines:

                          Rights group presses watchdog on CSIS records about Northern Gateway pipeline

                          Competition Bureau OK's Postmedia/Sun deal

                          Canada finally fills 2013 Syrian refugee promise, says work underway on next one

                          Ottawa extends period to review foreign takeovers for security concerns

                          Slaves kept in locked cages catch seafood that ends up in global supply chain

                          Dating site Plenty of Fish fined $48,000 for spam

                          After cutting debt recovery program, government needs to hire private debt collectors

                          Analysis: ISIS mission debate in Parliament leaves more questions than answers

                          Prince Charles letters to be released after Supreme Court ruling

                          Time to clear up charitable tax rules: study

                          Arizona bill blocks women from buying insurance that includes abortion coverage

                          EU antitrust regulators to investigate ecommerce

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