The Power of Perspectives

The Canadian Bar Association

National Blog

Amendments to Bill C-45 good, but more needed

By Kim Covert April 24 2018 24 April 2018


    Bill C-45, the Cannabis Act, set to become law this summer, is making its slow way through the approvals process, arriving in mid-April at the Senate Committee on Legal and Constitutional Affairs.

    The CBA made a submission on the bill earlier in the process. For this Senate committee hearing the Criminal Justice Section sent a letter acknowledging that we generally support amendments made to the bill in the House, but emphasizing that the CBA still has serious concerns.

    Amendments to the bill since our submission last fall include removing the height-restriction for home-grown plants, setting $200 as the maximum fine and specifying that probation is not to be imposed for ticketing offences, and adding certain immunities from prosecution for possession offences in the context of medical emergencies.

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    Manitoba pension review consultation

    By Kim Covert April 12 2018 12 April 2018


      CBA’s National Pensions and Benefits Law Section took part in a recent consultation on the Pension Commission of Manitoba’s review of The Pension Benefits Act, responding to questions contained in a consultation paper issued in January.

      In its submission to the commission, the Section noted that CBA members are not of one mind on the merits of defined-benefit pension plans vs. defined contribution, or shared risk plans, so it could not unequivocally recommend one or the other.

      The consultation paper covered questions such as whether a regulatory framework should be developed for defined-benefit or shared-risk plan designs; buying annuities; entitlement to ancillary benefits; locking-in provisions; and whether the new plan should be limited to unionized workplaces.

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      Eligible dependents: Share the support, share the tax credit

      By Kim Covert April 9 2018 9 April 2018


        It’s time for tax law to join the 21st century when it comes to family breakdowns.

        Gone are the days when separation and divorce automatically meant children stayed with one parent and might see the other on the weekends. These days more and more families choose to share custody, yet the CRA doesn’t see that as an option when it comes to applying the tax laws.

        When a child lives mostly with one parent, the Family Law Section says in a submission to the Finance Minister, Federal Child Support Guidelines require only one parent to pay child support, and only the recipient of the support may claim the eligible dependent tax credit for the child.

        When the child lives with both parents, the guidelines require both parents to pay support. For convenience, most families adopt an informal approach, where the higher-earning parent subtracts the lower amount of support payable from the higher amount, and pays only the difference, instead of both parents having to exchange the exact amounts of support payable.

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        CBA: Why we need ADR training in all law schools

        By Kim Covert April 4 2018 4 April 2018


          In a legal environment where most cases settle before they ever reach trial, being able to facilitate the reaching of those settlements is a valuable skill.

          That’s why the CBA has called on law societies and law schools across the country to recognize the importance of mandatory training in alternative dispute resolution.

          A 2016 CBA resolution says that since dispute resolution skills are a foundation of being an effective advocate, all graduating law students and bar admission students should be taught the spectrum of dispute resolution options.

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          Income sprinkling, income splitting, and passive investments

          By Kim Covert April 3 2018 3 April 2018


            No one is ever going to suggest that tax law is simple enough for average individuals to wrap their heads around. But the complexities in proposed changes to the “tax on split income” provisions of the Income Tax Act will go “beyond the capability of business owners and generalist advisors to comprehend and apply,” says a submission from the Joint Committee on Taxation of the Canadian Bar Association and Chartered Professional Accountants of Canada.

            The Committee commends the Finance Department for the improvements made to the draft TOSI legislation introduced in July, 2017, but note that serious technical and practical issues remain.

            Before enumerating a number of specific technical concerns with the proposals, the Committee noted a couple of areas where over-reach and complexity ran the risk of causing unintended consequences.

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            CBA has serious concerns with proposed impaired driving bill

            By Kim Covert March 28 2018 28 March 2018


              The CBA appeared before the Senate Committee on Legal and Constitutional Affairs in late February to reiterate its concerns with a bill that it says will introduce uncertainty into the criminal law and carry serious repercussions for permanent residents and foreign nationals.

              The CBA supports the overall aim of the bill, which contains amendments to better address both drug and alcohol impaired driving, but urges “careful consideration of our concerns and recommendations about Bill C-46.” 

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              Bill C-49 sends mixed messages to foreign investors

              By Kim Covert March 27 2018 27 March 2018


                You can attract flies with honey, but if you stand there swatting at them they might not stick around.

                That’s essentially the message from the CBA’s Air and Space Law Section in response to Bill C-49, which would increase foreign ownership limits of air carriers.

                As it stands, in order to qualify as “Canadian” and operate a domestic or international air service, foreign ownership and de facto control of the corporation is limited to 25 per cent of the voting interest.

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                Proposed MAID regulations open door to self-incrimination for practitioners

                By Kim Covert March 8 2018 8 March 2018


                  The CBA’s End-of-Life Working Group has some concerns about the implications for medical professionals in the proposed Monitoring of Medical Assistance in Dying Regulations published in December.

                  The regulations require medical practitioners and nurse practitioners who receive a written request for MAID, and pharmacists who dispense the drugs, to disclose certain information so governments can track how it is being used.

                  The CBA Working Group sees problems both with the specific kinds of information requested and the fact that the information is being compelled on threat of criminal sanctions.

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                  Extrapolating the decision in Green to other limited partnership cases

                  By Kim Covert March 8 2018 8 March 2018


                    The decision in Green v R, 2017 FCA 107, was engineered to avoid an inappropriate result, but in turn could lead to other inappropriate results if applied broadly.

                    This sparked a discussion between the CRA and the Joint Committee on Taxation of the Canadian Bar Association and Chartered Professional Accountants of Canada late last year on what factors the Department should take into account if it proposes a legislative response to the decision. A recent submission sets out the Joint Committee’s position.

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                    Principles for confidentiality in IP hearings

                    By Kim Covert February 28 2018 28 February 2018


                      The CBA’s Intellectual Property Section welcomed the opportunity to comment on the Federal Court’s Draft Report on Confidentiality Orders, offering up its own proposal for a set of six principles for establishing best practices on the protection and handling of confidential information.

                      The Section says it supports the establishment of a series of guidelines or a Practice Direction based on these principles:

                      1. Parties should try to come to an out-of-court agreement on handling information they consider to be confidential. It would be beneficial, the Section says, if the court could outline specific steps the parties need to take in order for the Federal Court to have jurisdiction to enforce the agreements.

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                      Cannabis Working Group comments on proposed regulations

                      By Kim Covert February 27 2018 27 February 2018


                        The federal government continues to line up its ducks as its self-imposed 2018 deadline for cannabis to become legal in Canada quickly approaches.

                        The government released a consultation document, Proposed Approach to the Regulation of Cannabis, in November, focusing on licences, security clearances, tracking and reporting, products, packaging and labelling, medical use and health products.

                        The CBA Working Group on Cannabis commented on the consultation document in a recent submission, the latest in a line of submissions urging changes to the way Canada treats possession and use of marijuana dating back to 1978.

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                        Strict timetables are good, a little leeway is better

                        By Kim Covert February 23 2018 23 February 2018


                          Setting strict schedules is all well and good, but a little flexibility is important when all doesn’t go according to plan.

                          That was one of the messages from the CBA’s Intellectual Property Section in its response to the Federal Court’s proposed Patented Medicines (Notice of Compliance) timetable checklist. The Section would like to retain the document’s structure and content – with one broad proviso: it needs flexibility.

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