The Power of Perspectives

The Canadian Bar Association

National Blog

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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      Modernizing air transportation: Tariffs, complaints and the definition of Canadian

      By Kim Covert October 27 2017 27 October 2017

         

        It’s probably never a bad thing when a government decides to modernize its laws and regulations. The Canadian Transportation Agency announced last year its intent to do just that – bring regulations that haven’t changed in 25 years or more in line with the current reality.

        To that end, last December the CTA released its Discussion Paper on Regulatory Modernization for Air Transportation. The Air and Space Law Section has made its comments on Phase II of the paper, focusing on modernizing the Air Transportation Regulations with a view to streamlining existing tariff and application requirements, and enhancing the certainty of legal obligations imposed on carriers.

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        Once more unto the breach regulations

        By Kim Covert October 26 2017 26 October 2017

          The news of a data security breach can send a chill through your bones. Anyone who’s ever shared sensitive information online is vulnerable, and these days that’s more and more of us – think of the three billion people affected by the breach at Yahoo! this summer.

          The federal government is drafting regulations under PIPEDA on how and when to notify people whose information may have been caught up in a breach. They published those draft regulations in the Canada Gazette in September.

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          Billed-basis accounting and access to justice: CBA submission

          By Kim Covert October 25 2017 25 October 2017

             

            When the Finance Department released draft legislation in September to limit the use of billed-basis accounting, the CBA was happy to see that the government had acted to address one of the Association’s major concerns with the changes.

            When the government announced as part of the 2017 budget that it planned to change billed-basis accounting and the way work in progress is taxed, the CBA said the proposed two-year implementation was far too short, given the amounts of WIP that may be subject to an unanticipated and accelerated tax consequence. The draft legislation will change that implementation period to five years.

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            I am a white settler

            By Caitlin Urquhart October 24 2017 24 October 2017

               

              Recently a presenter introducing me stumbled over these words. I still feel awkward saying them. These words can make everyone in the room tense, on edge.

              I am a white settler. Not my ancestors, not my history, me. I live here on traditional unceded, unsurrendered Beothuk and Mi’kmaq territory. I am a citizen of this colonial government that through current racist and discriminatory practices allows Indigenous peoples to suffer under boil water advisories, abysmal housing conditions, unacceptably high rates of children in care and school drop out. I have allowed this current government to continue to ignore the orders of the Canadian Human Rights Tribunal to end the discriminatory chronic underfunding of Indigenous children in care. And I am a part of the justice system that allows Indigenous women, girls and two-spirit people to go missing and murdered and actively criminalizes Indigenous peoples making them the most overrepresented group in our prisons.

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              Privacy at the border: Is a smartphone more like a letter or a briefcase?

              By Kim Covert October 19 2017 19 October 2017


                The post-9/11 emphasis on the need for security has exacerbated the difficulty of balancing the individual right of privacy with the state’s right to know, especially at border crossings. And more and more the fulcrum those two balance upon is the personal electronic device, be it a laptop, a tablet or a smartphone.

                The credit card used to be the thing we wouldn’t leave home without, these days it’s our electronic devices, particularly smartphones. They have become indispensable when travelling, especially now that travel providers have made tickets and boarding passes available electronically.

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                Something’s gotta give when resources don’t grow with workload

                By Kim Covert October 18 2017 18 October 2017


                  Canada has opened its doors and its arms and its borders to refugees.

                  Now it needs to open its wallet.

                  British Columbia has gone from receiving 725 refugee claims in 2016 to 110 a month in 2016. In Ontario, if the current rate of refugee claimants continues, there could be nearly 5200 by the end of the year, almost double the number in 2015. Across the country, the Immigration and Refugee Board predicts 40,000 new claims by the end of the year.

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                  Cannabis conundrum: If it’s legal, why treat it like the demon weed?

                  By Kim Covert October 17 2017 17 October 2017

                     

                    The CBA has been a vocal supporter of changing the way the law treats cannabis for nearly 40 years – in our first resolution on the subject, in 1978, the Association urged the government to stop criminalizing simple possession, and also advocated moving marijuana from the Narcotic Control Act to the Food and Drug Act.

                    While it applauds the intent behind Bill C-45, the Cannabis Act, the Criminal Justice Section notes that marijuana use would be far from normalized under the proposed law. In comments on a 2016 discussion paper, the Section noted that the government’s approach might be better described as a step toward “decriminalization” but could not be accurately referred to as “legalization” given its heavy reliance on criminal law.

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                    Air travel and a bid to modernize the Competition Act

                    By Kim Covert October 13 2017 13 October 2017


                      A bill that would modernize parts of the Canada Transportation Act and relevant portions of other Acts is making its way through the House of Commons. While Bill C-49, Transportation Modernization Act, deals with planes (including passengers’ rights), trains and maritime transportation, the submission from the CBA Competition Law Section focuses on the parts dealing with airline competition.

                      Specifically, the Section comments on additions to the Canada Transportation Act and Competition Act to provide for a voluntary review and approval process for airline joint venture arrangements that would make Canada’s approach to these arrangements substantially similar to that of the U.S., where the Secretary of Transportation has jurisdiction to exempt airlines from the application of federal antitrust laws.

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                      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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