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The Canadian Bar Association

National Blog

The CBA’s intervention on common interest privilege

By Yves Faguy October 5 2017 5 October 2017

     

    The CBA intervened this week in Iggillis Holdings Inc. v Canada (National Revenue) at the Federal Court of Appeal in Edmonton. Mark Tonkovich, Jacques Bernier, and Stephanie Dewey of Baker Mckenzie appeared for the CBA in this matter of common interest privilege. We interviewed Tonkovich about the intervention.

    CBA National: The Federal Court's ruling in Iggillis Holdings turns on the question of common interest privilege. How does the concept work and in what context?

    Mark Tonkovich: The concept is better thought of as an exception to the principle that disclosing solicitor-client privileged material to parties outside the solicitor-client relationship waives that privilege.  The common interest exception is essentially that a client's sharing of privileged material with a third party in pursuit of a common interest between the two will not waive privilege as against any other person.  The question of context is actually key here: while the Federal Court accepted that the common interest principle applies in the litigation context, the Court concluded that there is no similar rule in the transactional or advisory (non-litigation) context.

    N:  So what is at stake in the wake of the Federal Court ruling?

    MT:  The Federal Court of Appeal is being asked to provide clarity on the common interest exception, including whether it exists outside of litigation on the facts of this particular case (which involved two groups of clients and two different law firms contributing to a single tax law memorandum).  The appeal decision will be especially important because the Federal Court's very detailed analysis actually introduced significant confusion and uncertainty into the law of privilege by departing from prior cases.  It also cast doubt over established practices on how Canadian lawyers operate in transactional fields where multiple clients benefit from a common understanding of the law governing their transaction.  The issue arose in a tax case, but it applies in contexts as varied as M&A, environmental, competition, IP, securities, real estate, divorce and matrimonial, and wills and estates law.

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    Creating uncertainty: Part 2 of Bill C-46 as flawed as its predecessor

    By Kim Covert October 2 2017 2 October 2017

       

      If there’s something the law doesn’t like, it’s uncertainty. The legal system spends years building precedents, forging predictability. Creating an “if-A-then-B” system that’s not quite mathematical, but is logical and on which we can all rely.

      The problem with Bill C-46, according to the CBA’s Criminal Justice Section, is that it will do away with decades of established precedent and leave uncertainty in its place. And in a time of overworked, under-staffed courts, court delays and the Jordan ruling, uncertainty is even less attractive than usual.

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      Pensions across borders

      By Kim Covert September 25 2017 25 September 2017


        There are few things in life more likely to make most of the population close their eyes, plug their ears and sing “la-la-la” than a discussion about pension funding. Many of us have pensions and look for some sort of financial stability in retirement, so it’s amazing how many people are ready to leap with faith on the idea that there will be enough in the pot cometh the hour.

        So if you’re tempted to look elsewhere and hum during this next bit, rest assured that the CBA Pensions and Benefits Law Section is taking care of business.

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        The impact assessment regime: A review of the review of the review

        By Kim Covert September 21 2017 21 September 2017

           

          Having a clear, predictable federal regime for impact assessments is just the first step toward creating a process that will restore Canadians’ trust in the system and get resources to market. That protocol must also be sufficiently funded and resourced, say the CBA Aboriginal and Environmental, Energy and Resources Law Sections in response to an expert panel’s report released this summer.

          The two CBA Sections were also among those who contributed to the report with a submission made to the expert panel during its consultation process in December 2016. 

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          Third time’s the charm: Once more on immigration consultants

          By Kim Covert September 5 2017 5 September 2017

            The CBA’s Immigration Law Section applauds the emphasis in a recent report on immigration consultants by the Citizenship and Immigration Committee on protecting individuals who want to immigrate to Canada. Still, it feels the Committee’s recommendations “have missed the mark in a number of key areas” by not addressing fundamental issues that have led to the failure of two separate regulatory bodies for consultants.

            The Section endorses a number of the report’s recommendations, those which it says will, among others, improve access to justice, reduce language barriers, increase fines for ghost consultants, and give more financial support to settlement agencies.

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            The law should encourage people to do the right thing

            By Kim Covert August 31 2017 31 August 2017


              Canada Revenue Agency’s Voluntary Disclosures Program is generally considered a win-win – people who’ve made errors on their taxes are given the opportunity to come forward and correct their mistakes, and the CRA collects taxes that otherwise have gone unpaid.

              But proposed changes to the VDP have the potential to disrupt that balance, and could, when it comes to businesses collecting GST and HST, result in harsher penalties than if the errors were caught in a CRA audit.

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              How to align new NAFTA with more modern trade deals

              By Kim Covert August 31 2017 31 August 2017

                 

                Time passes, the world moves on, and today’s new kid in town is tomorrow’s been there, done that.

                And so it is with the North American Free Trade Agreement, which came into effect 23 years ago. At the time it was hailed as a state-of-the-art trade agreement between Canada, the United States and Mexico. Over the last two decades it has accomplished what it was supposed to accomplish: it currently links 459 million people producing more than $19 trillion worth of goods and services; it has increased trade between the member states; it has created more integrated supply chains between the member states.

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                Less isn’t necessarily more when it comes to blood alcohol limit

                By Kim Covert August 29 2017 29 August 2017

                  If a blood-alcohol limit of 80 mg is an effective deterrent to drinking and driving, a 50 mg limit should be even better, right?

                  That’s essentially the thinking behind a proposal to limit the criminal blood alcohol concentration limit, but less, in this case, isn’t necessarily more.

                  That’s because 50 mg indicates the presence of alcohol in the blood but isn’t necessarily an indicator of impairment, says the CBA’s Criminal Justice Section in a letter to Justice Canada. While there is enough evidence of impairment to support a limit of 80 mg, there is “little to no consensus in the scientific community that 50 mg is impairing.”

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                  Speaking out for judicial independence in Poland

                  By Kim Covert August 28 2017 28 August 2017


                    Poland is becoming known as Europe’s problem child, with what one report calls a “worrying policy of polarization” that stems back to the election in 2015 of the Law and Justice party (PiS). Issues came to a boil this summer with a number of planned reforms that would have the effect of erasing judicial independence and give rise to the possibility of political influence on judicial decisions.

                    In July, the EU deemed those plans an amplification of a “systemic threat to the rule of law” in the country. It demanded that Poland “address these problems within one month,” failing which it was prepared to trigger Article 7, in which a member country’s EU voting rights are suspended.

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                    CBA welcomes first feminist international assistance policy

                    By Kim Covert August 25 2017 25 August 2017


                      The CBA’s International Initiatives Committee applauds the federal government’s July announcement of a new feminist international assistance policy.

                      In a letter to the Minister of International Development and La Francophonie, Marie-Claude Bibeau, the Committee Chair, commended the government on its focus on inclusive governance, and gender equality.

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                      CBSA pilot project not the answer to border backups

                      By Kim Covert August 21 2017 21 August 2017


                        Once around the flagpole, then home?

                        Not so fast.

                        Flagpoling is a term used by foreign nationals who exit the country only to immediately re-enter in order to satisfy the requirements of a work visa or to confirm landing. Because of slow processing times and inefficient processes online and at immigration offices in Canada, it is more efficient for many people to go to a point of entry and do the quick turnaround than to deal with an inland immigration centre.

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                        Consultation report on political activities received charitably

                        By Kim Covert August 17 2017 17 August 2017


                          What does “political” mean in the charitable context?

                          That’s an excellent question. The CBA Charities and Not-for-Profit Law Section posed it in a submission last year to the Canada Revenue Agency during consultations on political activities by charitable and non-profit agencies. And one of the four recommendations in the consultation report, released in March, is that the issue be clarified in legislation.

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