Legal Insights & Practice Trends

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National Blog

Bank of Montreal v. Marcotte: Reactions

By Yves Faguy
September 26, 2014 at 16:10PM Le 26 September 2014 à 16:10PM

Last week the Supreme Copurt rendered its trilogy of decisions, most notably Bank of Montreal v. Marcotte, in which it ruled that that provincial consumer protection legislation applies to federally-regulated banks and credit card issuers. Kevin Kiley boils it down:

The decisions increase the sphere of provincial legislation that could apply to federally regulated financial institutions, give the provinces greater scope in consumer protection, and send financial institutions a strong message about consumer protection in the context of credit.

David Neave and Rebecca von Rüti argue the decision will have wider implications.

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Researchers prove lawyers in ‘enviable’ position

By Kim Covert
September 25, 2014 at 15:24PM Le 25 September 2014 à 15:24PM

“He who goes unenvied shall not be admired,” Aeschylus wrote. And it seems lawyers are greatly admired.

Lawyers can be good people to know in bad times, and greatly esteemed as individuals, but as a profession are hardly greeted with the same kind of warm fuzziness reserved for, say, nurses and child-care workers.

Two Princeton researchers, in trying to determine why climate change scientists have such a hard time being taken seriously, found some evidence as to why this is.

Lawyers, along with CEOs, scientists, engineers, researchers and accountants, are found in the high-competence, low-warmth “envied” end of a scale of professions, as illustrated in the graph from the study, below. They are admired for their competence, but their perceived lack of warmth makes them untrustworthy.

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Takes of marine mammals incidental to specified activities

By Katia Opalka
September 24, 2014 at 17:20PM Le 24 September 2014 à 17:20PM

Offshore oil and gas exploration and development worries people who are concerned with the wellbeing of marine mammals along the Pacific, Arctic and Atlantics coasts of North America. I have looked into this issue as regards project authorization under Canadian and Mexican environmental laws, but it is only today that I came across an example of the U.S. process.  In true U.S. fashion, it is both unbelievably detailed and amazingly accessible. 

First, there’s the way the U.S. process describes the issue: “Takes of marine mammals incidental to specified activities.” It is blunt, “legal”, succinct and honest. The word “take” means the whale or porpoise will die. “Incidental”, as in “incidental take”, is a term that comes from the field of U.S. endangered species law and extends to migratory bird protection efforts in Canada and the United States. It refers to the unintentional, unavoidable, killing of animals that results from carrying on an otherwise legal activity (in the U.S., “specified activities”).  Since it is illegal to kill endangered species or non-game migratory birds, project proponents need an authorization to do just that in order to avoid prosecution. Unlike a permit, which is required for activities that are legal so long as you get a permit, an authorization is for activities that are illegal unless you get an authorization. (The distinction may seem subtle but it actually plays a huge role in Canadian environmental law.)

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Publication ban puts high-profile victim ‘back in closet’

By Kim Covert
September 23, 2014 at 15:30PM Le 23 September 2014 à 15:30PM

“It’s the ban that everybody wants, to protect the victims in child pornography cases. They just don’t want it for this case,” Nova Scotia Provincial Court Judge Jamie Campbell wrote in a May ruling upholding what many deem to be an unnecessary ban on publishing the name of a victim of child pornography.

Unnecessary – or ridiculous. The victim’s name was one of the litany of names that gets read off every time there’s a discussion of teenagers who were cyberbullied to death – in this person’s case, an attempted suicide left her with lethal brain damage after photos circulated of her vomiting while a boy had sex with her.

On Monday, the now-20-year-old who took the photo pleaded guilty to making child pornography. The boy in the photo, who also faces child pornography charges, goes to court in November.

The articles about the guilty plea seemed odd for being among the first stories about the victim that DIDN’T name her. There was such a public outcry after her death, led by her parents, who were outraged by the lack of official response to the outrage that had been inflicted upon their daughter, that it seems disingenuously coy not to use her name now.

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Law Students: In the Midst of Change

By CBA Futures
September 23, 2014 at 12:24PM Le 23 September 2014 à 12:24PM

The report of the CBA Futures project found, unsurprisingly, that “the legal profession in Canada is entering a period of major change.” From my perspective as a 2L law student, the thought of entering the profession in the midst of such change is both exciting and overwhelming. Exciting because there will be novel opportunities; overwhelming as uncertainty in the profession could make the transition from law student to lawyer a tough one. Many of the 22 recommendations in Futures report have special resonance with students: from admissions, to debt reduction programs, to post-call training.

One such recommendation is the idea that educational institutions should create new models for legal education (recommendation 15). As a student at Lakehead University, home to Canada’s newest law school, I already have some personal experience with one such model. Lakehead’s Faculty of Law integrates practical skills training into their standard 3-year curriculum, which includes a four-month work placement, so students do not have to article after graduation.

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