The Power of Perspectives

The Canadian Bar Association

National Blog

Voter intelligence is big business unfettered by regulation

By Kim Covert May 25 2018 25 May 2018


    The recent scandal surrounding information-gathering by Cambridge Analytics and Facebook opened a lot of eyes to the amount of data that is out there to be collected, and the uses to which it can be put.

    Usually when we think about Big Data we think of it in commercial terms – companies finding ways to use personal information about consumers in order to enhance their bottom lines. But Big Data’s not just for Big Business any more –political parties are also hoovering up Canadians’ data, and they’re doing it with relative abandon, compared with the restrictions placed on the business world.

    “Political parties are not subject to privacy laws,” the CBA’s Privacy and Access Law Section points out in a submission regarding Bill C-50, An Act to Amend the Canada Elections Act, noting that laws meant to protect Canadians privacy in almost all other aspects of their lives, including the Personal Information Protection and Electronic Documents Act, the Privacy Act, or Canada’s Anti-Spam Law, do not apply to political parties.

    Read More

    Impact assessments: Bill C-69 needs clarity and guidance to achieve stated goals

    By Kim Covert May 25 2018 25 May 2018


      The federal government set out a host of worthy goals in the preamble for Bill C-69,An Act to enact the Impact Assessment Act and the Canadian Energy Regulator Act, to amend the Navigation Protection Act and to make consequential amendments to other Acts, which had its first reading in the House in February.

      The government aims to implement an assessment and regulatory system that:

      • people can trust, that will protect the environment and the health and safety of Canadians
      • that allows decisions to be predictable and timely, therefore providing the stability business needs
      • reflects the government’s commitment to achieving reconciliation with First Nations
      • uses transparent processes built on early engagement and inclusive participation
      • considers both scientific and traditional knowledge
      • assesses the broader impact of policies, programs and projects.

      These are all goals the CBA can get behind, say the Aboriginal Law Section and the National Environmental, Energy and Resources Law Section in a submission centred on the proposed Impact Assessment Act.

      The devil, as always, is in the details.

      Read More

      Draft M&A guide takes positions inconsistent with jurisprudence

      By Kim Covert May 23 2018 23 May 2018


        Google “mergers” and “efficiencies” and the helpful suggestion for a search that comes up is “mergers create efficiencies.” It’s apparently so true that even Google knows it.

        In March, the Competition Bureau released a draft document, A practical guide to efficiencies analysis in merger reviews, sharing its perspective and experience on trade-off analysis, and when the Commissioner may decide not to challenge a merger due to efficiency gains.

        The CBA’s Competition Law Section commends the Bureau on its commitment to transparency and public consultation, but has a number of concerns with the document, recommending that language in a number of areas be clarified or reconsidered.

        Read More

        Bill C-66 not a complete fix for historically unjust convictions

        By Kim Covert May 17 2018 17 May 2018


          We’ve come a long way, baby. Time passes and society evolves and so do its attitudes to certain behaviour. Some laws are slower to change than others, but once something becomes more socially accepted, the laws regulating that behaviour gradually fall off the books.

          The convictions under those laws, however, are another matter.

          Many members of the LGBTQ2S community still have a criminal record for activities that have not been illegal for some time. It is these people whom Bill C-66, the Expungement of Historically Unjust Convictions Act, is supposed to help.

          Read More

          Consent guidelines: Reviewing the revisions

          By Kim Covert May 9 2018 9 May 2018


            In a letter to the Office of the Privacy Commissioner, the CBA’s Privacy and Access Law Section and CCCA note that many of the problems it identified last year in the OPC’s draft guidelines for obtaining meaningful online consent were still present after those guidelines were revised.

            The Sections reiterate four recommendations from the earlier submission.

            Read More

            Proceeds of Crime Act: Leave privilege out of it

            By Kim Covert April 26 2018 26 April 2018


              Money laundering and terrorist financing is on the minds of both policy-makers and regulators this spring as the federal government carries out a statutory review of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, and the Federation of Law Societies of Canada proposes amendments to its Model Rules dealing with the subject.

              The CBA has a long history of advocacy on the issue: it was involved in the development of the first proceeds of crime legislation in Canada and has commented since on proposed legislative and regulatory changes, always asserting that the laws must protect solicitor-client privilege. The CBA was an intervenor in Canada (Attorney General) v Federation of Law Societies of Canada, in which the Supreme Court confirmed that the proceeds of crime legislation cannot impose duties on lawyers that undermine their duty of commitment to their clients’ causes.

              Read More

              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.

                Read More

                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.

                  Read More

                  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.

                    Read More

                    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.

                      Read More

                      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.

                        Read More

                        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.” 

                          Read More