The Power of Perspectives

The Canadian Bar Association

Ann Macaulay

Legal innovation

Trust technology: Rethinking smart contracts for the future

By Ann Macaulay March 26, 2018 26 March 2018

Trust technology: Rethinking smart contracts for the future

 

Blockchain purists imagine a world that eventually has no banks or insurers as we currently know them, one in which lawyers operate in a different way, says Usman Sheikh of Gowling WLG in Toronto.

The disruptive potential of blockchain “will change the fabric of our society,” and create significant upheaval in the legal profession, says Sheikh, describing the potential impact on lawyers as revolutionary.

Blockchain technology is “one of the most disruptive, impactful technologies to have been invented, some say since the early days of the Internet,” says Sheikh, who heads his firm’s Blockchain & Smart Contracts Group, although how things will evolve remains uncertain.

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Ethics and criminal justice

Reconciliation in Canada’s legal system

By Ann Macaulay March 16, 2018 16 March 2018

Reconciliation in Canada’s legal system

 

Lawyers, judges, law schools and legal organizations have a long and challenging road ahead in addressing historic and current deficiencies in how Indigenous peoples are treated in the Canadian legal system. Of the 94 calls to action in the Truth and Reconciliation Commission’s 2015 report, two are specifically directed towards the legal profession. One calls upon the Federation of Law Societies to ensure that lawyers receive cultural competency training. The other calls upon law schools to require that all law students take a course in Indigenous peoples and the law.

“Indigenous lawyers can only do so much,” said Koren Lightning Earle, Indigenous Initiatives Liaison at the Law Society of Alberta in Calgary, who spoke at a March CBA-FLSC Ethics Forum in Toronto on steps lawyers and the legal system can take to achieve reconciliation with Indigenous peoples. “Part of the next step of reconciliation is now that we know the truth, we have to deal with it, we have to swallow it, we have to move forward.”

Between 1831 and 1996, more than 150,000 First Nations, Inuit and Métis children were removed, sometimes forcibly, from their families and sent to residential schools. This was “designed to assimilate Indigenous children into Canadian society by eliminating parental involvement in their spiritual, cultural and intellectual development,” said moderator Paul Schabas, Law Society of Ontario Treasurer. Reconciliation is still at the beginning of the process, he added. 

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Ethics and criminal justice

Sexual assault trials: A failure of the legal profession?

By Ann Macaulay March 12, 2018 12 March 2018

Sexual assault trials: A failure of the legal profession?

 

The way sexual assault cases are practised and adjudicated by defence lawyers, prosecutors and judges regularly imposes unnecessary harms upon complainants, according to Dalhousie University law professor Elaine Craig. Players in each of these roles should play a part to prevent these harms and all have a duty to “uphold the law and those legal reforms that we have in place to protect complainants and the duty to intervene to prevent arguably unnecessarily aggressive, discriminatory or abusive cross-examinations,” she said.

Conclusions from Craig’s recent book, Putting Trials on Trial: Sexual Assault and the Failure of the Legal Profession, were central to the discussion of ethical challenges by a panel moderated by University of Calgary law professor Alice Woolley at a March CBA-FLSC Ethics Forum in Toronto.

Craig’s book examines ways the criminal trial process can be made less traumatic for sexual assault complainants without threatening or eroding the rights of the accused. She found that some criminal defenders ask improper questions, including prior sexual history. They “sometimes exploit rape myths that have been categorically rejected at law and sometimes unnecessarily harass and intimidate complainants in an effort to discourage them from continuing to willingly participate in the process.” These strategies are inconsistent with the law, she said, and judges have an ethical obligation “to make courtrooms as humane as possible under the circumstances,” including not forcing a complainant to testify while standing.

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Complex litigation

The rise of high-stakes global class actions

By Ann Macaulay February 16, 2018 16 February 2018

The rise of high-stakes global class actions

 

Canadian lawyers face greater uncertainty as complex global class actions increase. At a February Ontario Bar Association Institute program, lawyers highlighted cases that have helped to evolve the landscape.

Cross-border class-action litigation has proliferated over the past five to 10 years, said panelist Nadia Campion of Polley Faith in Toronto. Plaintiffs are increasingly seeking to increase the size of their classes by including foreign class members, she said, adding that from about 2010, “the courts were not entirely comfortable with exercising jurisdiction over global classes. But that’s all changed now.”

Campion outlined two significant Court of Appeal decisions, both with many class claimants with no connections to Canada. Excalibur involved a Canadian auditor involved in a private placement of shares and warrants by American owners of a Chinese corporation. The Court of Appeal overruled the lower courts’ denial of certification, ruling that there was a real and substantial connection to Ontario, essentially saying that if class members “have been harmed or potentially harmed by operations of a Canadian entity operating in Canada, then that is sufficient to give rise to a real and substantial connection test under which jurisdiction can be exercised,” said Campion. The key consideration was that courts can exercise jurisdiction over claims against Ontario-based defendants.

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The practice

The argument for hanging out your shingle on a professional corporation

By Ann Macaulay February 2, 2018 2 February 2018

The argument for hanging out your shingle on a professional corporation

Lawyers have several options when choosing their new firm’s business structure and should explore the pros and cons of each type before selecting the one that suits their needs best.

Options when setting up a firm include practising as a sole practitioner, establishing an association by sharing costs and resources, creating a virtual law firm, partnering with one or more other lawyers with the option of creating a limited liability practice, or even employing a combination of these structures.

All of these options have their own advantages: A sole proprietorship gives a lawyer complete control over the practice and all of its income and assets. A general partnership allows for a profit-sharing arrangement, in which each partner is jointly liable for the firm’s debts and obligations. An LLP provides the same tax benefits as a general partnership but limits the partners’ individual liability. An association between lawyers provides the opportunity to work together without a partnership agreement, offering services to a larger number of clients while sharing expenses.

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