The Power of Perspectives

The Canadian Bar Association
Equality rights

Gender-based analysis plus and lessons for Charter vetting

By Yves Faguy October 12, 2018 12 October 2018

Gender-based analysis plus and lessons for Charter vetting

 

Gender-based analysis plus (or GBA+) is the process followed by the federal government (and developed by Status of Women Canada) to analyze the gendered implications of government policy. In a recent article published in the Canadian Bar Review, Vanessa MacDonell examines the process, and tries to draw some lessons from it that might guide the government in improving its Charter vetting process for legislation:

The differences between GBA+ and the Charter vetting process may explain why they have evolved in different ways. GBA+ involves a form of structured policy analysis. The process therefore mandates evidence-gathering, consultation, analysis, recommendations, and the like. Rights vetting, on the other hand, is a form of legal analysis. It is not surprising, then, that this process would engage the tools of legal analysis—hence the use of a checklist of possible rights infringements and an emphasis on legal risk analysis. As an outsider, it is difficult to know what role evidence-gathering and consultation play in the Charter vetting process, though it likely varies. Unlike policy-makers, however, lawyers might be inclined to believe that their legal training provides them with everything they need to conduct an analysis of likely Charter impacts. This view would be short-sighted. Good evidence is crucial to assessing Charter impacts.

Read the whole thing.

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The practice

The art of being strategic about marketing

By Sandra Bekhor October 12, 2018 12 October 2018

The art of being strategic about marketing

 

Websites, Google ads, SEO, swag, media, seminars, newsletters, LinkedIn, Facebook, video…

That’s all well and good as a list of relevant areas to do marketing for your firm. But how do you make them, collectively, help you take your practice where you want to go?

At the end of the day, marketing should be about more than just bringing in a few inquiries, which wouldn’t be a sustainable, or even satisfactory, return on your investment. It should be about pursuing what you really want. The right clients. The right files.

To really deliver impact, instead of an assembly line of disjointed efforts, you need an overarching strategy that ties all your activities together, a strategy driven by your firm’s identity and its goals.

Think about it. What do you (and your partners) really want for your firm? Be as specific as you can. Financially, strategically and personally.

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Competition law

The TREB ruling and the Bureau’s role in upholding competition

By Kim Covert October 11, 2018 11 October 2018

The TREB ruling and the Bureau’s role in upholding competition

 

The Competition Bureau’s Jeanne Pratt doesn’t have to think too hard when asked how long it took to reach a final decision in the Toronto Real Estate Board abuse of dominance case – it’s the same age as her only child.

“I look at him and how much he’s grown,” Pratt, the Senior Deputy Commissioner, Mergers and Monopolistic Practices Branch, told a plenary session at the Competition Law conference in Ottawa in September.

A Federal Court of Appeal decision in December upheld a 2016 Competition Tribunal ruling that requires TREB to remove restrictions on its members’ access to real-estate data, including historical listings and sale prices – for display online through virtual office websites. 

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Administrative law

Rebooting the standard of review: Can it be done?

By Doug Beazley October 9, 2018 9 October 2018

Rebooting the standard of review: Can it be done?

 

In December, the Supreme Court of Canada will hear three concurrent appeals touching on one awkward question: where courts should draw the line on revisiting, and overturning, the decisions of government-appointed panels and individuals tasked by governments with administering the law.

The facts of the appeals are intriguing enough on their own. One deals with a government decision to rescind the citizenship of a Canadian-born son of Russian spies. The other two are going after the CRTC’s decision in 2016 to prohibit the practice of “simultaneous substitution” — buying American TV programming (in this case, the Super Bowl) and swapping American commercials for Canadian ones.

Espionage and football — a weird combination that guarantees intense media interest. But that’s not why lawyers will be watching.

Administrative law — the law that governs the actions of a wide spectrum of government-empowered administrators making binding legal decisions — tends to be both low profile and ubiquitous.

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Trade

Why the U.S. agreed to scrap NAFTA’s Chapter 11

By Doug Beazley October 5, 2018 5 October 2018

Why the U.S. agreed to scrap NAFTA’s Chapter 11

 

Complex, sprawling international trade treaties like the new United States-Canada-Mexico Agreement, or USMCA (or NAFTA 2.0, if you find President Trump’s preferred title a little lumpy), can be difficult to sell to hardcore ideologues. Big treaties have a lot of moving parts; one side gives something up to get something, while the other side does much the same.

So USMCA has a couple of features that aren’t easy to file away as ‘left’ or ‘right’. Take, for example, the fate of NAFTA’s Chapter 11 — the ‘investor-state dispute settlement’ (ISDS) chapter that managed conflicts between nations and foreign investors.

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Competition law

The role of competition law in emerging industries

By Holly Lake October 5, 2018 5 October 2018

The role of competition law in emerging industries

 

In a world where one of the few constants is change and the pace of it is relentless, emerging industries are among the drivers, with chaos and disruption often parked in the front seat.

Also regularly along for the ride? Arguments by some that these industries are shiny, new and different, and should therefore be regulated differently — or not at all.

But for Vicky Eatrides, acting senior deputy commissioner of the cartels and deceptive marketing practices branch at the federal Competition Bureau, it’s not a question of whether competition law and policy applies to artificial intelligence (AI), blockchain, cannabis or the “app economy.”

"It’s pretty clear that it does,” she told a panel at the Canadian Bar Association’s Competition Law Fall Conference in Ottawa in September. 

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The practice

Ten advantages to having an independent sounding board

By Patrick J. McKenna and L. Neil Gower, Q.C. October 4, 2018 4 October 2018

Ten advantages to having an independent sounding board

 

As a leader of a professional services firm, do you have a trusted advisor with whom you can discuss important issues – your own confidential, independent sounding board?

With today’s pace of change, the pressure has never been higher, nor the temptation greater, to act just for the sake of acting – to move things off your pending pile and appear decisive. This kind of “shoot from the hip” style may make us (perhaps initially) feel confident that we are getting somewhere. However, professional firm leaders are usually dealing with complex, multi-faceted issues, filled with land mines and unintended consequences. More "stuff" requires increasing sensitivity, and strategic consideration. Things we didn't even think were issues are now issues. This is where leaders often gain significant value from working with an external sounding board – someone they respect, in whom they can confide and with whom they can collaborate to help or challenge their thinking processes.

From our experience, scheduling time with someone outside of your firm with whom you can talk freely about your agenda and the issues facing you, in complete confidence, has at least these ten benefits:

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Privacy

Blockchain’s role as a privacy enhancing technology

By Fiona Morrow October 3, 2018 3 October 2018

Blockchain’s role as a privacy enhancing technology

 

Many of us hear the word “blockchain,” mentally file it under “something to do with Bitcoin,” and then swiftly move on. But there is more to this new technology than the cryptocurrencies, like Bitcoin, that use it. And lawmakers need to start thinking now about its long-term implications.

Top of mind is blockchain’s potential to enable greater data privacy and data security, says Florian Martin-Bariteau, who runs the University of Ottawa’s Blockchain Legal Lab, a research team investigating the practical uses of the technology — and the legal issues those uses raise. He’s also on a panel at the forthcoming CBA Access to Information and Privacy Law Symposium in Ottawa (Oct. 19 and 20) that will compare uses of blockchain in other industries.

“The blockchain technology is actually a protocol for information or asset exchange, and an infrastructure for data storage and management,” he says. “It is literally a chain of blocks of information which are interlinked in a secure way.”

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Indigenous law

The Crown’s underlying title to Aboriginal title lands

By Yves Faguy October 3, 2018 3 October 2018

The Crown’s underlying title to Aboriginal title lands

 

Kent McNeil has a fascinating piece, recently published in the Canadian Bar Review, that examines the source of the Crown’s underlying title in Canada, and compares it to other principal settler states colonized by Britain – namely Australia, New Zealand and the United States’ first 13 colonies.  As far as Canada is concerned, he notes that the sources of the Crown’s authority are somewhat murky, particularly outside of Quebec and Acadia, where it got sovereignty by “conquest and cession”:

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Corporate counsel

Why we do what we do (and how to change It)

By Lynne Yryku October 2, 2018 2 October 2018

Why we do what we do (and how to change It)

 

“My legal mind made me think, ‘Did we do everything we could have?’”, says Catherine Chow, VP Legal and General Counsel of Keg Restaurants Ltd., when her company experienced two accidental deaths in a short time frame last year. “I was just so profoundly moved … and as a company we were so profoundly moved.”

Her value system, based on law and order, led her to take on the issue herself. Her initial approach was to make existing rules stronger and create new ones to make staff events even safer (though the accidents were unrelated to the actual events). “Clearly, we need rules to enforce!” she had thought.

“I got the President’s buy-in but I neglected to get HR’s because I thought it was my issue,” she explains. “I didn’t get enough stakeholders in the process, and to be honest, I think I stepped on HR’s toes because what we did was crack down on everything. I have failed initially to see the synergies … and so I had a lot of resistance, not against the policies but against the approach. There was no uptake.”

“At that point, I thought I was going to leave the company. I thought it was a values misalignment,” she adds.

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The practice

When to expand your firm, when to outsource

By James Careless October 2, 2018 2 October 2018

When to expand your firm, when to outsource

 

A growth spurt in your firm’s workload can be a mixed blessing – more work means more revenue, but it can also mean burning out your partners and associates to keep up with it.

 “In my experience, there are four indicators that the firm is faced with the decision either to expand or outsource,” says Kamila Phillip, president of Law Firm Marketing Canada. “The first indicator is you start turning down work due to capacity issues. The second is your staff is overwhelmed by work, which is evident by the overtime hours they are putting in. The third is delays in turning around work for clients and meeting deadlines. And the fourth indicator is that the firm already has plans to grow its business and is looking for the opportunity to do so.”

In this situation there are two obvious options: expand or outsource. But while both can solve the problem, they each come with their own downsides – for example, adding people and infrastructure can end up costing more than it brings in; while outsourcing to a third-party supplier means reduced control over the work.

So what to do?

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Climate law

Ontario’s climate change plan: What now?

By Supriya Tandan October 1, 2018 1 October 2018

Ontario’s climate change plan: What now?

It’s been a difficult year for Ontario residents: forest fires in the North, flooding in the Southwest and recent tornado in the Nation’s capital are the most visible displays of a climate playing havoc with Ontario residents. These events are precisely what climate scientists have been telling us to expect with a warming earth, even if a causal link between a particular weather event and climate change phenomena can never be made.

Previous Liberal governments tried to tackle climate change by introducing legislation to reduce greenhouse gas emissions (The Cap-and Trade Act) and motivate the use, market and adoption of renewable energies (The Green Energy Act).

Then came a new Progressive Conservative government. One of Premier Doug Ford’s first items of business was to repeal his predecessor’s cap-and-trade legislative framework. His government followed that up with plans to repeal of the Green Energy Act, which critics charge was an ill-conceived attempt to grow a renewable energy industrial sector in Ontario. Its repeal also appears to be motivated by the desire for more municipal autonomy, especially in rural communities, where renewable energy projects are often located.

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