The Power of Perspectives

The Canadian Bar Association

National Blog

How tricky is consent? Let us count the ways

By Kim Covert January 2 2018 2 January 2018


    Consent is a weighted word these days, and people in many sectors are trying to decide when it’s necessary, how it must be given and how it can be recognized.

    Sometimes the question of whether consent was granted can be explained using the simple metaphor of a cup of tea: does the other person want tea? Yes or no?

    When it comes to the gathering and sharing of personal information for business purposes, however, the question of consent becomes a lot more complex.

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    Competition Bureau initiates discussion on Big Data

    By Kim Covert December 18 2017 18 December 2017


      Google. Facebook. Twitter. The Internet itself. Twenty years ago most of these things were barely more than glints in their creators’ eyes (the internet was still the information superhighway 20 years ago), now they’re ubiquitous resources that most people can’t live without.

      And while access to basic services is nominally free, they all come with a price – users are both clients and product. For every online action someone, somewhere, has made a record, and more often than not sold at least part of that information on as part of a comprehensive business model. Bring together information of high volume, velocity and variety, use technology and analysis to transform its value, and you’ve got Big Data.

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      Flagpoling pilot project unlawful, says Immigration Section

      By Kim Covert December 14 2017 14 December 2017


        A controversial Immigration Department pilot program that the CBA has argued should be stopped is instead being expanded, much to the dismay of the Immigration Law Section.

        The Section wrote to Immigration, Refugee and Citizenship Canada in July stating that its members had heard troubling accounts from foreign nationals trying to use the pilot project to renew or confirm status and seek re-entry into Canada. The Section offered up a more collaborative approach to addressing excessive wait times at ports of entry.

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        Competition Bureau’s merger fee review would change more than the money

        By Kim Covert December 13 2017 13 December 2017


          The Competition Bureau’s proposal to increase the amount it charges for a merger review is more than the first fee increase in 14 years – it represents a change in philosophy about how the Mergers Directorate is funded.

          In their response to the proposal to increase filing fees to $72,000, the CBA Competition Law Section notes that previous fee analyses have “recognized that administering the Act’s merger provisions has public benefits that should be at least partially funded by taxpayers.” The current proposal assumes that the Mergers Directorate would be funded entirely by filing fees.

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          Excising uncertainty: Comments on proposed amendments to the ETA

          By Kim Covert November 30 2017 30 November 2017


            The purpose of a definition is to define. The purpose of a clarification is to clarify. According to the CBA Commodity Tax, Customs and Trade Section, draft amendments to the Excise Tax Act do neither, and in fact create uncertainty.

            In its submission, the Section comments on subsection 272.1(8) proposed in draft amendments related to “investment limited partnerships.”

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            Legal aid in Canada: Same conclusions, different report

            By Kim Covert November 28 2017 28 November 2017

              Federal legal aid funding has not kept pace with costs. There is a patchwork of legal aid assistance levels across the country. Federal money should be earmarked for civil legal aid. Money spent on legal aid saves money elsewhere in the social assistance system. Technological advances should be leveraged to improve access to legal aid services. National data collection should be improved.

              Many of the 10 recommendations from a report on legal aid by the House of Commons Standing Committee on Justice and Human Rights probably sound like déjà vu all over again.

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              Past due: More time, consultation needed for prompt payment legislation

              By Kim Covert November 28 2017 28 November 2017

                In a perfect world, no one would need a law to make them pay their bills on time.

                In an imperfect world where such a law is apparently necessary, it’s best if that law is founded in extensive consultations with those it affects and doesn’t create more problems than it solves.

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                Three pages to storm the CASL

                By Kim Covert November 20 2017 20 November 2017

                  There’s more wrong with Canada’s Anti-Spam Law than can be dealt with in a three-page submission. So it is problematic that the House of Commons Committee on Industry, Science and Technology has limited the statutory review of the law in both time and space, three CBA Sections say in their submission.

                  “The time-limited review by the House of Commons Committee and the three-page limit on submissions is inadequate to address the complexities and challenges of CASL in its current form, and the requirement for a statutory review does not contemplate such a limited process,” says the submission, produced by the Privacy and Access and Competition Law Sections, as well as the CCCA. The Sections advise that further consultation is necessary in order to achieve CASL’s objectives.

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                  Yes, but no: Well-intended Bill C-51 would not improve justice in sex assault cases

                  By Kim Covert November 20 2017 20 November 2017

                    Changes to the Criminal Code’s sexual assault regime in Bill C-51 threaten to upset the ability of an accused to provide a full defence, suggests the CBA’s Criminal Justice Section.

                    The aim of the proposed bill is to remove unconstitutional or obsolete sections from the Criminal Code, a move that the Section supports. When it comes to other parts of the bill, those dealing with sexual assault cases in particular, “the CBA Section believes that much of what is proposed would fall short of improving justice for either complainants or accused,” it writes in a letter to the Chair of the House Committee on Justice and Human Rights.

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                    Offering asylum is about more than opening borders

                    By Kim Covert November 15 2017 15 November 2017


                      A good host makes sure that there is enough food and drink and other amenities to make those invited to the party feel welcome and comfortable. Canada is in danger of being a bad host to its most recent arrivals.

                      Asylum-seekers have been streaming across the Canada-U.S. border since last winter, thanks to an unwelcoming environment in the U.S. and the prime minister’s announcement in January that they would be welcome in Canada.

                      However sincere Canada might be about wanting to accept people fleeing war and persecution in their home countries, the fact is that the departmental infrastructure was already having trouble keeping up with the number of regular immigration applications.

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                      Repository for unclaimed pension entitlements a good idea

                      By Kim Covert October 31 2017 31 October 2017


                        If you have a sneaking feeling that you forgot to close out a bank account a long time ago, maybe in a province where you used to live, the Bank of Canada’s unclaimed balances registry can help you either set your mind at rest or set you on your way to reclaiming your cash.

                        The Bank of Canada takes over accounts that have been inactive for 10 years. If there’s less than $1,000 in the account, it holds the money for 30 years, and if there’s more than $1,000, it will hold on to it for 100 years.

                        The CBA Pension and Benefits Law Section thinks it would be a good idea if the bank did the same thing for unclaimed pension monies.

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                        Harmonize pension plan regulations for efficiency, says CBA Pension Section

                        By Kim Covert October 30 2017 30 October 2017


                          The Pension and Benefits Law Section called once again for a harmonized pension regulatory system in its October comment on the Office of the Superintendent of Financial Institution’s revised draft derivatives guideline for federally regulated pension plans.

                          Derivatives include an assortment of financial or commodity contracts, including forwards, futures, swaps and options. Used prudently, derivatives can be used by pension plan administrators to implement risk management strategies that can reduce risks associated with a range of financial variables like exchange rates, interest rates, market indices and commodity prices.

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