The Power of Perspectives

The Canadian Bar Association

National Blog

Taking up the challenge

By Robert Brun March 7 2013 7 March 2013

    One of the great joys of my year as president has been visiting our branches across the country. It’s a terrific opportunity to meet members face-to-face and reinforce the ties that bind us as an association.
    Whether I’m in Nunavut or Alberta, New Bruns­wick or Manitoba, I am always impressed by the work our branches do to advance the work of the CBA. The access to justice file is just one example.
    As you have heard, the CBA has launched a two-year national initiative aimed at preparing Canada’s lawyers for the future of the profession and ensuring it remains highly relevant to the lives of Canadians. It looks at both the business and public side of the legal profession on the assumption that access to justice and the future of legal services go hand in hand.
    The access to justice component will examine the problems among low- and middle-income Canadians, and marginalized communities, in gaining access to legal services and advice. Our branches know those problems well.
    For example, in New Brunswick, lawyers and judges have put the spotlight on family law, calling on the province to revisit the findings of a 2009 government task force, which made 50 recommendations aimed at improving access to family court.
    Last September, the Alberta branch struck its own access to justice committee, focused on public legal education with a variety of not-for-profit groups. I’m also glad to see that the Alberta branch, like the branch in my home province of British Columbia, has embraced the challenge of keeping lawyers in small communities as an aspect of access to justice. It’s an important piece of the access to justice puzzle.
    These initiatives at the branch level are a powerful reminder of how the work of our branches helps build the CBA’s  credibility to not only  lead the public debate on access to justice, but to enhance our position as the voice of the legal profession.

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    Can’t get through to people?

    By March 7 2013 7 March 2013

      Effective communication is the bread and butter of legal practice, but how many lawyers are really good at it? The answer might surprise you.
      As Ann Macaulay reports in Your Practice this month, one-third of all legal malpractice claims filed with the Lawyers’ Professional Indemnity Company stem from lack of communication between lawyers and clients.
      Why the disconnect? After reading Susan Cain’s excellent book, Quiet: The power of introverts in a world that can’t stop talking, it occurred to me that personality might play a role. Yes, you can work to improve your skills at effective communication, but your personality influences your communication style. And while we can’t change our personalities, we can learn how they help or hinder our efforts to get our message across to clients, co-workers, and other people in our lives.  One of the crucial factors is whether we are introverts or extroverts.
      As Cain explains, the key difference between introverts and extroverts lies in our response to stimulation. The introvert prefers low-key en­viron­ments, needs time to recharge after being around others, is careful, focused and a good listener. The extrovert loves to talk, is energized by being around others and actually becomes bored and listless in the absence of stimulation.
      Like everyone, lawyers struggle to communicate with people who have the opposite personality. But addressing this communication gap is vital to effective communications.
      Martha Newman of Top Lawyer Coach recommends for example, that extroverts remember introverts need to quietly focus on one thing at a time and that they do their best thinking alone. Understanding this means the extrovert is less likely to get frustrated that the individual is not forthcoming or is difficult to deal with. Introverts are encouraged to focus on their strengths and speak up when an issue is important.
      Skill-building is important. But like most things, efforts rooted in self-knowledge will bear the most fruit.

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      How to kickstart crowdfunding in Canada

      By Yves Faguy March 5 2013 5 March 2013

        Michael Geist has a helpful post on why Kickstarter and other crowdfunding sites are having trouble getting traction in Canada (an issue Leo Singer recently looked into in a recent article for National on the sharing economy):

        The barriers to Canadian crowdfunding extend beyond payment problems and sparsely populated websites. Legal uncertainty about venturing into crowdsourced investment has limited the ability of Canadian creators to tap into their home market. Canadian sites are typically based on a donation model in which there is no expectation of financial return, though some creators offer incentives and gifts in return for support. The United States has opened the door to an investment model that would allow for crowdfunding investments that could result in revenue sharing or the issuance of stock in the project or company.

        The Ontario Securities Commission just closed a consultation on the issue with many potential safeguards being considered. These include registration requirements, investment limits, disclosure obligations, and "cooling off" periods that would allow investors to back out of an investment.

        The failure of Canadian crowdfunding sites to keep pace with sites such as Kickstarter unsurprisingly means that creators are forced to look south of the border for financial support.

        Of course, part of the problem too is that there is no single securities regulator in Canada. If the provinces are ever to permit crowdfunding by Canadian issuers, they'll have to change the rules Geist refers to under each of their respective Canadian securities laws.

        That said, crowdsourcing does have its critics who might applaud Canada's slow pace of change. Steve Rattner, slamming the US JOBS Act, compared it in a recent NYT article to gambling:

        While such lightly regulated capital raising has existed for years, until now, “investors” could receive only trinkets and other items of small value, similar to the way public television raises funds. As soon as regulations required to implement the new rules are completed, people who invest money in start-ups through sites similar to Kickstarter will be able to receive a financial interest in the soliciting company, much like buying shares on the stock exchange. But the enterprises soliciting these funds will hardly be big corporations like Wal-Mart or Exxon; they will be small start-ups with no track records.

        Picking winners among the many young companies seeking money is a tough business, even for the most sophisticated investors. Indeed, most professionally run venture funds lose money. For individuals, it’s pure folly. Buy a lottery ticket instead. Your chance of winning is likely to be higher.

        Which might explain its popularity. According to Deloite estimates, crowdfunding portals will lend $1.4 billion worldwide in 2013, up from 50 per cent in 2012. More on the state of international crowdfunding here.

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        Whatcott reactions, continued

        By Yves Faguy March 1 2013 1 March 2013

          The Whatcott decision generated a ton of commentary, so we rounded up a few more reactions.

          Ariane Krol recognizes that the court struggled to bring clarity to the debate, but the decision, she writes, still leaves plenty of room for interpretation:

          The trouble is that the Court’s test rests on impressionistic criteria. Could it be the reason why it took the justices 16 months to reach a decision about four pamphlets?

          The [hateful] expression must not only inspire violent and extreme sentiments, but must be “likely to expose the targeted person or group to hatred by others.” Following the decision, we must ask ourselves what “a reasonable person, aware of the context and circumstances’ would think. But that won’t change anything. Measuring intensity and the evaluating the possible consequences is an inherently subjective exercise. It’s to be expected that the administrative tribunals that will have to apply these criteria will continue to render controversial rulings. (Our translation)

          It’s a nuanced and well-crafted decision, according to Michael Plaxton, but one that forces us to confront difficult questions:

          The decision in Whatcott forces one to ask just how important it is that matters of private sexual morality be debated in the public sphere. Maybe it’s fair enough to say that the state has no place in the bedrooms of the nation. But does that mean private citizens should not be allowed to express an opinion about what goes on in them? After all, although it may seem a trivial matter for many of us, for others, sexual morality is tied to questions of the highest spiritual significance and urgency. Perhaps a commitment to equality demands that their views be muffled somewhat. If that is true, though, we should be honest about what we are doing.

          (More after the jump)


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          Getting serious about oil spill liability

          By Yves Faguy February 28 2013 28 February 2013

            Earlier this year there were reports that Ottawa is planning on raising spill liability limits for offshore drilling. It isn’t clear yet whether new rules would apply to inland pipelines as well. As things stand now, provided there is no negligence, oil companies have their liability capped at an absurdly low $40 million in the North and $30 million off the East Coast. To put things in perspective, the BP spill in the Gulf of Mexico three years ago caused damages estimated at $40 billion. Who knows how much worse it could be in Arctic waters?

            We caught up with Will Amos, director of the Ecojustice clinic at the University of Ottawa, to give us some insight on where the government might be headed, how it should handle this issue and what it might mean for the resource industry.

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            NEXUS privileges: Saving time at the border

            By Cyndee Todgham Cherniak February 27 2013 27 February 2013

              Many NEXUS card holders in the Trusted Traveler Program are not aware that there are on-line forms available that they can complete prior to returning to Canada with their purchases.  The declaration process is simplified by the NEXUS Traveller Declaration Card (TDC).  Canadian residents who are members of the trusted traveler programs may complete this form to declare goods purchased and/or acquired outside Canada and must give the completed TDC to the Canada Border Services Agency (CBSA).  At many land border crossings, there is a secure deposit box in which to submit the completed forms in the NEXUS lane.

              (More after the jump)

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              Whatcott reactions

              By Yves Faguy February 27 2013 27 February 2013

                It took 16 months for the Supreme Court to release its unanimous decision in Whatcott. Though predictably, reactions split both ways. Here’s the bottom line from a somewhat disappointed Jonathan Kay:

                The Supreme Court of Canada’s decision in the case of Saskatchewan Human Rights Commission v. Whatcott can’t be considered a win for free-speech champions — especially religious conservatives. But nor is it an outright victory for human-rights censors. By reaffirming that human rights commissions cannot punish speech that merely “ridicules, belittles or otherwise affronts the dignity of” an alleged victim group, the Court struck a measured blow against political correctness.

                Charlie Gillis writes that the compromise was inevitable. And yet:

                To me, their decision to stand-pat represents a missed opportunity to erect robust legal protections around a bedrock Canadian value. And yes, my employer has a stake in this. But if we learned anything from the Maclean’s-Ezra Levant human-rights fiascos, it’s that the rights process is too blunt, too one-sided an instrument to deal with such a sensitive issue as speech.

                A couple of other thoughts: all eyes should now turn to the provinces that have anti-hate speech provisions in their human rights codes, some of whose leaders have echoed the above-stated qualms. They’ve been sitting on the sidelines to see whether Whatcott would give them the cover needed to do the right thing, and now the onus is on them.

                (More after the jump)

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                Shareholder activism: Is it going too far?

                By Yves Faguy February 26 2013 26 February 2013

                  National recently had an item on shareholder activism and the substantial increase in proxy fights in Canada. Walied Soliman, a partner with Norton Rose is quoted in the article as saying he has been involved in some 40 proxy battles over the past three or four years. What’s more, he believes we’ll see the number of proxy fights increase in Canada “mainly because there’s evidence of success.”

                  Well the big success story in New York, and perhaps a harbinger of things to come in Canada, is last week’s ruling by a federal court judge in favour of hedge fund manager David Einhorn in his legal battle against Apple. Einhorn is trying to pressure the company into distributing some of its massive cash reserves to shareholders through the issuance of (cutely-named and) dividend-paying iPrefs. Apple responded by trying to limit its ability to issue preferred shares by submitting a bundled proposal that was supposed to be put to a vote at this week's annual shareholder meeting. But the judge rejected the actual bundling of the proposal with other poposals.

                  Admittedly, the win is no more than a procedural – some might say “trivial” – one for Einhorn. Nevertheless, Andrew Ross Sorkin looks at the big picture (Einhorn’s attempt to force Apple to distribute its cash) with an interesting column today on abuses of shareholder power (more after the jump).

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                  A new blogger at National

                  By Yves Faguy February 25 2013 25 February 2013

                    National is proud to welcome a new blogger joining its ranks. Cyndee Todgham Cherniak is an international trade and sales tax lawyer at LexSage Professional Corporation and has 20 years of experience working at national law firms. She also happens to chair the CBA’s National Commodity Tax, Customs & Trade Section. She loves writing, knows her stuff and we’re delighted to have her on board. You can also read her here, here, here and here.

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                    SOGIC on Trinity Western University's law school bid

                    By Yves Faguy February 25 2013 25 February 2013

                      As you might have heard, there’s a battle brewing in the world of legal education, as Trinity Western University, a Christian faith-based institution, is seeking approval to open a new law school.
                      It’s up to the Federation of Canadian Law Societies to decide whether it will accept the university's law degree as an acceptable qualification for applying for a  license to practice law in a Canadian province. But by the Council of Canadian Law Deans has argued that the school should not receive formal accreditation, on the grounds that it would discriminate against gays and lesbians. As such, critics say, opening a law school at TWU is antithetical to fundamental legal values, and they question the school’s ability to uphold academic freedom in an environment in which students are required to sign a faith statement.

                      Last week at the CBA’s Midwinter Council meeting in Mont-Tremblant, the CBA’S Sexual Orientation and Gender Identity Conference (SOGIC) raised some of these issues and spoke out for the need to engage in constructive with dialog with the Federation.  Here's a clip from co-chair Amy Sakalauskas:

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                      The pursuit of happiness

                      By Cyndee Todgham Cherniak February 24 2013 24 February 2013

                        The U.S. Declaration of Independence signed on July 4, 1776 includes the following statement:

                        “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

                        What lesson should lawyers take away from this statement?

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                        Splitting the roles of the GC and the chief compliance officer?

                        By Yves Faguy February 19 2013 19 February 2013

                          The separation of powers versus the combining of roles between general counsel and the chief compliance officer has become, over the years, the subject of heated debate. Michael W. Peregrine, a partner at the U.S. law firm McDermott Will & Emery, discusses lessons learned from JP Morgan’s $6-billion trading loss last year. The bank’s internal analysis revealed that its risk policy committee hadn’t been made aware (in a timely manner that is) of the full extent of the risks related to bets made by the bank on credit derivatives. Peregrine takes note of one particular recommendation from the report that should be of interest to those responsible for risk oversight practices:

                          One of the most direct recommendations in the report relates to the independence of compliance and risk managers. An emerging view is that these managers should now report directly to the chief executive and not to a company’s general counsel. (Last month, JPMorgan said it had changed the chain of command so that its head of global compliance and regulatory management will report directly to the bank’s chief operating officers).
                          Moreover, the title and compensation of compliance and risk officers should command the same heft and responsibility of the post. Also proposed is a greater link between executive compensation and satisfaction of the board’s risk reporting standards.

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