The Power of Perspectives

The Canadian Bar Association
CBA influence

Canada’s unilingual constitution: More than just bad optics

By Kim Covert November 30, 2018 30 November 2018

 

Words matter. When it comes to the Constitution – the document which guarantees the equality of English and French – the fact that the majority of constitutional documents are available in English only makes it look like the words are more equal in one language than the other.

The optics, as they say, are bad.

“The lack of a complete official French version of the constitutional documents … has a jarring symbolic effect, and is an affront to the equality of status of both official languages in Canada and to our Constitution’s underlying fundamental principles, which are the rule of law and the protection of minorities,” say the CBA’s French-Speaking Common Law Members Section and Constitutional and Human Rights Section in a joint submission to the Parliamentary committee studying the modernization of the Official Languages Act.

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Small & solo

Make it rain on LinkedIn

By Sandra Bekhor November 30, 2018 30 November 2018

Make it rain on LinkedIn

 

A few short years ago, LinkedIn was a single bullet in a law firm marketing plan, if that. Now, lawyers are asking themselves whether they might need a complete marketing plan dedicated to LinkedIn.

Some do. Some don’t. It depends on your audience. 

While LinkedIn isn’t necessarily the best fit for a personal injury lawyer targeting the general public, it might be just the ticket for a commercial litigator targeting large businesses or a criminal lawyer targeting referrals from complimentary professionals.

It comes down to this: If your audience is there, it stands to reason that opportunity is there too. It may take a bit of creativity to maneuver it. But that’s what any successful marketing campaign would take, online or off. 

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Walter Owen prize

Yaëll Emerich on our common property law

By Maryse Chouinard November 29, 2018 29 November 2018

Yaëll Emerich on our common property law

 

Property is often thought of as one of the dusty disciplines of law, unable to escape the trappings of hermetically sealed legal traditions. The winner of this year’s Walter Owen Book Prize would have you think otherwise. In her new work, Droit commun des biens : perspective transsysmétique (Common property law: A transsystemic approach), Professor Yaëll Emerich suggests that those traditions have plenty in common. What’s more, they engage one another in ways that shed valuable light on today’s major issues.

“When you take on a research project, you never know where it will lead you,” said the associate professor from McGill University’s Faculty of Law, who announced as this year’s winner at the CBA_Quebec Branch’s holiday cocktail party. The award recognizes excellence in legal writing and rewards outstanding new contributions to Canadian legal doctrine. “It’s encouraging when peers recognize the quality of the work,” says Emerich.

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CBA influence

Canada’s labour market impact assessment is too unpredictable

By Kim Covert November 29, 2018 29 November 2018

 

The CBA’s Immigration Law Section is taking the federal review of the standards and fees associated with the Temporary Foreign Worker Program Labour Market Impact Assessment Process as an opportunity to reiterate its arguments that the process does not serve the interests of employers – and can have a negative impact on the employment of Canadians.

There are knock-on effects when obstacles are placed in the way of prospective employers who want to bring in foreign workers, the Section says. If a meatpacking operation can’t bring in workers for processing jobs where there is a shortage of workers in Canada, for example, that could mean direct and indirect losses in related industries such as transportation, marketing, trade, etc.

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CBA influence

Delays can be a disincentive to applying for an open work permit

By Kim Covert November 28, 2018 28 November 2018

 

Officials at Immigration, Refugees and Citizenship Canada have made a lot of improvements to the spousal sponsorship process in recent years, but problems remain, particularly in the area of the timeliness of approvals for work permits.

In the case of out of status sponsored spouses applying for work permits, the CBA Immigration Law Section writes in a letter to IRCC, the applicants will either not receive the permit, or will receive it only at the end stage of their permanent residence application. “By this point, the processing time for the work permit will exceed the remaining processing time for the sponsorship application. This creates a disincentive for out of status sponsored spouses to apply for an open work permit due to the perception that it will be a waste of time and money.”

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Criminal law

Canada’s slow and insufficient efforts at ending solitary confinement

By Justin Ling November 27, 2018 27 November 2018

Canada’s slow and insufficient efforts at ending solitary confinement

 

It has been nearly 12 months since the Ontario Superior Court of Justice declared that Canada’s use of solitary confinement is unconstitutional.

Eleven months have passed since the Supreme Court of British Columbia handed down a similar ruling.

In September, Public Safety Minister Ralph Goodale issued a mandate letter to the Commissioner of the Correctional Service of Canada, instructing her to reduce the use of solitary confinement.

And just last month, Ottawa introduced Bill C-83, which promises to “eliminate the use of segregation” altogether.

From the outside, this looks like progress. But a loose coalition of organizations says the federal government’s effort to reduce the use of a practice that the UN essentially equates to torture is falling apart.

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International law

The Singapore Convention: A breakthrough for international trade

By Alexander Gay November 27, 2018 27 November 2018

The Singapore Convention: A breakthrough for international trade

 

Litigation and arbitration can be lengthy and costly, which explains in part why mediation has been gaining in popularity as a method for resolving cross-border commercial disputes. What’s lacking, however, is a comprehensive legal framework for the enforcement of international settlement agreements. Without one, parties to a mediated settlement usually have to get a court judgment in a foreign jurisdiction to enforce the agreement.

That is set to change, as the United Nations Commission on International Trade Law (UNCITRAL) moves forward with a new tool that will facilitate the recognition and enforcement of mediated settlements.  This year, UNCITRAL approved the Convention on International Settlement Agreements Resulting from Mediation – informally known as the Singapore Convention.  The document is now open for signing.

The document is the culmination of a process that began in May 2014, when the United States proposed to develop a multilateral approach that would assist with the recognition and enforcement of mediation settlements.  In essence, the idea was to replicate the mechanisms that exist under the New York Convention for arbitration awards.

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Access to justice

Plain language: Designed to empower the users

By Mélanie Raymond November 23, 2018 23 November 2018

Plain language: Designed to empower the users

 

Plain language isn’t just a buzzword. When well analyzed and properly planned, it can be used to give parties in a legal proceeding more power. “It’s about making sure people have some control” stresses Susan Kleimann. The CEO of Kleimann Communication Group made these remarks at a presentation in October at Montréal organization Clarity’s conference dedicated to promoting the use of plain language.

After 2009’s foreclosure crisis rocked the American economy, Susan Kleimann was tasked with reviewing the government mortgage form that prospective homeowners are required to fill out. “The statistics on the crisis were well known, but behind them hid a great deal of human suffering,” she says. “We were asked to prevent a repeat of the situation by helping expose the contract traps.”

They didn’t want to be paternalistic. After all, some customers were interested in high-risk products. They wanted to make sure of three things: that people truly understand the details of their mortgage, that they are able to make comparisons; and that they make informed choices.

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CBA influence

Canada should facilitate asylum for targeted LGBTI+ individuals in Tanzania

By Kim Covert November 23, 2018 23 November 2018

 

The headlines out of Tanzania tell the story of dangerous and deadly times for the country’s LGBTI+ community, as many gay men are in hiding from vigilante squads on a mission to find and arrest them.

While the Tanzanian government says it does not support these measures, the CBA’s Sexual Orientation and Gender Identity Community says it expects “the proposed plan has already further marginalized Tanzania’s LGBTI+ community by inciting hatred, discrimination and possibly violence.”

SOGIC has written to Prime Minister Justin Trudeau and Foreign Affairs Minister Chrystia Freeland asking the government to take steps to help support LGBTI+ individuals living in Tanzania, to ensure their well-being and safety.

The government can do this, SOGIC says, by obtaining information with regard to the extent to which the LGBTI+ community is being targeted; denouncing any actual or threatened human rights abuses against that community and individuals in it; and facilitating asylum in Canada for LGBTI+ individuals fleeing persecution.

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Law firms

Changes in the marketplace that call for innovation

By Yves Faguy November 21, 2018 21 November 2018

Changes in the marketplace that call for innovation

“An innovator is someone who makes a change in Year One that everyone else has to make in Year Five.”

Michael Torpey knows that from experience. As a practitioner in the 1990s, he spotted an opportunity after the U.S. Congress passed a new law designed to limit frivolous securities lawsuits. It required the first plaintiff filing a securities class action to publish a notice informing potential class members of their right to move to be named lead plaintiff.

“I figured out then that I [knew] where all the cases were being filed around the country,” Torpey said during his keynote address at the CBA’s Law Firm Leadership Conference this month in Toronto. Most of the securities litigators at the time were in New York and San Francisco, he explained. So he prepared an information package for everybody that got sued, paid some visits to some of the targeted companies, and volunteered his time to assess their case.  “For the next two or three years, I got 50 percent of the cases that were filed in the whole U.S,” he said. Apparently, nobody else had thought of doing that, until a couple of years later, when “everybody had thought of it.”

“I had an advantage that went away,” says Torpey, now the managing partner at Orrick, Herrington & Sutcliffe in San Francisco, named by the Financial Times as the most innovative law firm in North America in 2016 and 2017. There’s a lesson in that for law firms, he adds. “If your innovation is good, you get a little bit of edge for a little while. And if it’s not good, even though you spent a lot of money and nobody is following it, well you’re out of luck.”

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Supreme Court

Judges must ensure language rights are respected

By Yves Faguy November 16, 2018 16 November 2018

Judges must ensure language rights are respected

Any person who appears in a federal court must be able to exercise their right to speak in the official language of their choice.  That’s what the Supreme Court of Canada ruled in handing down s decision in Mazraani v. Industrial Alliance Insurance and Financial Services Inc.

“This is a great decision that meets our expectations concerning language rights and access to justice,” says Nicolas Rouleau who represented the Canadian Bar Association as intervener in the matter. “It clearly confirms the equal status of French and English in the federal courts.”

The case involved a representative for Industrial Alliance, Kassem Mazraani who after seeing his contract terminated, sought insurance benefits.  These were refused to him as he was considered to be a contractor for Industrial. Mazraani, who spoke only English, eventually took his case it to the Tax Court of Canada, where he represented himself. But many witnesses, as well as counsel for Industrial, who as intervener had an interest in the outcome of the proceedings, requested to speak in French.

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Environmental law

Canada’s proposed new Impact assessment: Putting science first?

By Doug Beazley November 15, 2018 15 November 2018

Canada’s proposed new Impact assessment: Putting science first?

 

Compromise is the lifeblood of working democracies. That doesn’t mean everyone has to like it. Bill C-69 — the Trudeau government’s attempt to reform Canada’s system of environmental reviews for major resource projects — is before the Senate, and making no one particularly happy.

C-69 (it’s actually a package of bills) would take the job of ordering project impact assessments away from the National Energy Board and hand it to a new body, the Impact Assessment Agency of Canada (IAAC). The IAAC is designed to not only conduct environmental assessments of large projects (such as interprovincial pipelines), but to broaden the scope of the assessments to cover the projects’ health, social and economic impacts, their effects on Indigenous peoples and on the federal government’s climate change commitments. The goal, according to the government, is to streamline project assessments through a “one project, one assessment” approach.

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