Legal Insights & Practice Trends

The Canadian Bar Association 2013 Canadian Law Blog Awards Winner

National Blog

2014: An exceptional year for the SCC

By Yves Faguy
December 22, 2014 at 15:53PM Le 22 December 2014 à 15:53PM

As part of our year-end coverage, I interviewed Lynne Watt, a partner in Gowlings’ Ottawa office and leader of the firm’s Supreme Court of Canada Services Group.  In the above video, she takes us through what she describes as “an exceptionally important year” for the top court.

Read More

2015: Jordan Furlong on the state of the legal marketplace

By Yves Faguy
December 22, 2014 at 09:07AM Le 22 December 2014 à 09:07AM

Jordan Furlong, whom you all know from his writing at, was kind enough to sit down with me for a half hour to look back at the state of the legal market in 2014 and to share his insight on where it's headed in 2015.

We discussed everything from Heenan Blaikie’s downfall to the impact of the drop in oil prices, the CBA Futures report and other moves toward legal regulatory reform in the country.  It’s worth checking out the whole segment, but for the impatient readers among you, here’s his takeaway from the Heenan debacle:

“Heenan encountered an extraordinary array of circumstances, pretty much all at the same time. And put that in the context of a tight market with a lot of challenges for law firms, even at the best of times. This is where you get at a lot of the concern that other lawyers and law firms had.  Because they can look at some of the things that have been cited, publically, in Heenan’s downfall, and they can see some of it themselves.  There were issues of competition, there were issues of compensation and leadership and all these things.  But fundamentally […] the market here is still very strong. And to me one of the best indicators of that is how quickly so many Heenan partners were absorbed into other large law firms. So I think this is still a robust market, but of the many lessons that firms should take from Heenan Blaikie is that law firms really are fragile institutions and it doesn’t take a whole lot to knock them sideways and, especially considering the year we have ahead of — most likely and maybe even the years beyond that — it’s a lesson we would all do really well to keep in mind.”

Read More

NAFTA Environmental Commission: There’s something happening here

By Katia Opalka
December 17, 2014 at 15:23PM Le 17 December 2014 à 15:23PM

When Canada, the U.S. and Mexico decided to enter into an environmental side-agreement for NAFTA twenty years ago, it was because Bill Clinton needed to placate Congress. There was fear amongst U.S. NGOs that competition for investment would lead to a relaxation of environmental standards or enforcement. In the environmental agreement, the public was given the right to complain about ineffective environmental law enforcement, and an independent commission was created to review the complaints and recommend investigations where warranted.  At the time, the U.S. President issued what is called an executive order (a.k.a. policy direction from way on high) interpreted as meaning that to the greatest extent possible, the U.S. will always vote to okay investigations recommended by the independent commission.  Well.

For the longest time, the three NAFTA countries voted as one:  up or down, but always together.  In the past six months the U.S. has twice broken ranks with Canada and Mexico on investigation requests into environmental law enforcement in Canada.  In June, as regards protection of polar bears under the Species at Risk Act, and now as regards using the pollution prevention provisions of the Fisheries Act to protect wild salmon from deleterious substances associated with fish farming operations.  The first time, the U.S. simply said: look, our yes vote (against two no votes) should not be taken as criticizing Canada’s law enforcement. It’s just that we have this executive order that tells us we should basically always vote yes when the independent commission recommends an investigation. Today, the U.S. again voted yes and talked about the executive order, but it also explained how it disagrees with reasons advanced by Canada and Mexico for turning down the investigation.

The proceedings of international organizations can seem very remote.  But they shouldn’t.  The U.S. has given us a very rare glimpse into differences of opinion on matters that are usually discussed behind closed doors.  As our parents used to say (about gifts we hadn’t asked for and could care less about): take an interest and show your gratitude.

Read More

Expanding police powers as crime rates fall

By Yves Faguy
December 17, 2014 at 13:17PM Le 17 December 2014 à 13:17PM

Addison Cameron-Huff takes issue with this line written by Justice Cromwell for the majority in Fearon:

The issue on appeal concerns the admissibility at Mr. Fearon’s armed robbery trial of a draft text message and two photos found by police on his cell phone. The issue arises out of the investigation of a crime that has become depressingly routine. 

Pointing to evidence that armed robbery and homicide rates are down, Cameron-Huff scolds the Supreme Court Justices:

Around 5% of Canadians surveyed by Statscan in 2011 thought that crime was decreasing in their neighbourhood. To put that statistic in even greater perspective, the majority of those surveyed felt that their neighbourhood was safer than average.

Why does it matter that the Supreme Court doesn't know that crime rates are falling? Fearon is a decision that gives expanded powers to the police, presumably in part because the Justices thought that police need more tools to tackle the scourge of crime they wrongly believe exists.

Léonid Sirota piles on:

That a Supreme Court opinion would make such unsupported assertions ― as best we can tell, falsifiable, and actually false, unsupported assertions ― is remarkable. One thought here is that, for all the problems with social science evidence that I have been blogging about here and elsewhere, it is even worse when courts assert “facts” on which such evidence bears without looking at that evidence at all. Relatedly, it might be bad when judges google, but even worse when they make assertions that a fairly simple search would have proven wrong.

According to Statistics Canada, homicides were down 23 per cent in 2013 from the period 2003 to 2013, partly owing to a drop in robbery by 35 per cent over the same period.  It is possible that Justice Cromwell would like to take another crack at that sentence, and judges must obviously be careful when making factual assertions.  Even so, there were over 23,000 robberies in 2013. The figure is dropping, sure, and that is to be celebrated. But it still remains a serious crime regardless of the trend. 

Read More

Income-splitting for the few

By Yves Faguy
December 17, 2014 at 10:55AM Le 17 December 2014 à 10:55AM

Vern Krishna argues in favour of income splitting, calling it fair given how “rife” Canada’s tax framework is already with income splitting that benefit business owners, rich retirees and wealthy investors allocating parts of their portfolios to their children’s university education:

The Canadian income tax system already is rife with income splitting, but only for select groups of taxpayers. Thus, we allow higher income retirees to split their pension income with their lower income spouses.

But Ottawa’s latest income-splitting proposal doesn’t go far enough, he writes.

Read More