The Power of Perspectives

The Canadian Bar Association
Environment

Climate change litigation: Public nuisance strategy latest to fail

By Doug Beazley July 13, 2018 13 July 2018

Climate change litigation: Public nuisance strategy latest to fail

 

You’ve got to give him credit — he did the homework.

Last March, U.S. District Court Judge William Alsup was hearing a lawsuit filed by the cities of San Francisco and Oakland against five major oil firms on a claim of “public nuisance”, seeking compensation for the damage done by human-driven climate change. Alsup ordered the defendants and plaintiffs to take part in a five-hour tutorial explaining the ins and outs of climate science. By the end of it, he was arguably more qualified to hold forth on the topic than any member of Congress.

From the plaintiffs’ point of view, it didn’t help. Last month, Alsup threw out the lawsuit, saying the question of whether private firms can be held accountable for the climate effects of consuming a legal product is one for politicians to answer, not judges.

Previous attempts to pursue climate change nuisance claims under American federal law had foundered at the U.S. Supreme Court, which ruled in 2011 that the federal common law of ‘nuisance’ had been displaced by the passage of the Clean Air Act in 1963. Activists in the U.S. and Canada hoping to use the courts to do what most governments seem reluctant to do — hold energy companies directly accountable for the consequences of carbon pollution — have to see Alsup’s decision as a setback (even if it’s a symbolic one in Canada’s case).

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Indigenous law

Looking back at Latif and the challenge of proving discrimination

By Yves Faguy July 13, 2018 13 July 2018

Looking back at Latif and the challenge of proving discrimination

 

This month marks the third anniversary of the Supreme Court of Canada ruling in which it rejected an appeal from Javed Latif, a Canadian pilot of Pakistani origin who claimed the transportation company Bombardier Inc. had discriminated against him on account of his ethnic background. Bombardier refused to provide him training at its facility in Quebec because U.S. authorities had declared him a threat to aviation security (Latif was also licensed in the U.S.). The Quebec Human Rights Tribunal agreed with Latif’s position, Quebec’s Court of Appeal set aside its decision because it could not find that Bombardier had discriminated against Latif without proof that the U.S. authorities’ decision was itself based on a ground that the Charter prohibits. In its ruling Supreme Court outlined the test for establishing discrimination in human rights cases.

In their recent article published in the current edition of the Canadian Bar Review, Colleen Sheppard and Mary Louise Chabot draw parallels with a very different decision, the SCC’s Taypotat ruling, that decided that minimum education requirements to run for Chief or Band Councillor in the Kahkewistahaw First Nation are not discriminatory under section 15 of the Charter. The authors argue that our courts need to be more sensitive to the evidentiary challenges facing plaintiffs in establishing discrimination:

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CBA influence

Are market studies in the Competition Bureau’s remit?

By Kim Covert July 13, 2018 13 July 2018

 

This spring the federal Competition Bureau released a bulletin to “describe how market studies are used to promote competition, and to provide transparency to stakeholders regarding how the Bureau selects and conducts market studies.”

The Competition Law Section starts out its response to the bulletin by noting its concerns about the Bureau’s jurisdiction to carry out broad-based market studies, as opposed to inquiries or investigations where competitive concerns have been raised.

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CBA influence

Take care of the foreign caregivers: Recommendations for the IRCC

By Kim Covert July 11, 2018 11 July 2018

 

Foreign caregivers and personal care workers face an onerous process to get into the country, let alone to bring their families, renew their work permits and get on the permanent resident track, says the CBA’s Immigration Law Section.

All of these areas and more should receive special consideration by Immigration, Refugee and Citizenship Canada’s current review of the Caregiver Pathways, which are due to expire in November 2019. The government has committed to establishing an improved pathway to permanent residence for caregivers.

The Section’s letter to the IRCC followed a conference call with the Department in May as part of its informal consultations with stakeholders. The Section made comments on five specific topics: labour market impact assessments, work permits, eligibility and application for permanent resident status, transition program, and enactment by regulation versus ministerial instruction.

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The practice

Negotiate your working conditions at a law firm

By James Careless July 10, 2018 10 July 2018

Negotiate your working conditions at a law firm

 

This is a hard time to be a newly-minted lawyer seeking work.

“It’s a buyer’s market out there, with a glut of new lawyers chasing a limited number of jobs,” said Warren Bongard, President and Co-Founder of Toronto’s Zsa Legal Recruitment. “As a result, the biggest firms in Canada’s largest cities can dictate salaries and working conditions to new hires – and they do.”

“There’s an oversupply of young lawyers looking for positions,” agreed Preston Parsons, a lawyer at Vancouver’s Overholt Law and Chair of the CBA’s Young Lawyer Committee. “The law of supply and demand is definitely working against them.”

Toronto’s Ryan Cooper knows from first-hand experience what Bongard and Parsons are talking about. Called to the bar in June 2018, Cooper had a job lined up with the firm he’d been articling for only to be told recently that the firm does not wish to expand.

As a result, he is left trying to find an associate position in Toronto or Kingston at the last minute. “Frankly, I will have to take what I can get,” Cooper said.

In a buyer’s market, it is definitely difficult for a new lawyer to find a job, let alone have some say in their level of pay and working conditions. Difficult, but not impossible.

Here’s how you may be able to pull it off:

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Investor-State disputes

A more perfect international investor court?

By Yves Faguy July 9, 2018 9 July 2018

A more perfect international investor court?

Over the past few years, the European Commission (EC) has been pushing to replace the traditional arbitration framework for investor-state disputes (ISDS) with a new investment court system – or ICS –run by independent judges, bound by strict conflict-of-interest rules, and operating more transparently.  It’s precisely what Canada and the EU agreed to when they concluded their free trade agreement, CETA. The  push is part of an effort to respond to criticism that the traditional ISDS model of using arbitral tribunals to solve disputes is overly favourable to foreign investors at the expense of states’ interests.  What’s more ISDS allows investors to challenge domestic regulations and policies before private arbitration courts that are mostly out of reach of regular litigants. CETA’s investment court system also provides for an appellate body to review decisions. The hope here is that this will help produce more consistency in treaty interpretation.

On these points, in an article to be published in The University of Western Australia Law Review, Kyle Dickson-Smith looks at how investor-state dispute claims in developed countries encroach on the work of domestic courts which, in turn, judge the appropriateness of the arbitral tribunal’s findings:

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Criminal law

Can Canada kill its own citizens in combat?

By Justin Ling July 6, 2018 6 July 2018

Can Canada kill its own citizens in combat?

 

That question has been thrust into the Canadian legal world in recent months, after Global News reported that, not only has Ottawa determined that it can legally kill fighters who fled Canada to fight for foreign terror groups, it likely already has.

In May, Global published a report detailing how the Canadian military had targeted three Canadian citizens in Syria and Iraq. Earlier in June, they released details on the discussions that occurred between senior officials on the legality and possibility of launching airstrikes that could kill Canadian citizens.

The discussion is the first time the issue has escaped from the academic legal world into actuality. While other countries, like the United States, United Kingdom, France, and Israel have all grappled with the legality and morality of killing its citizens on the battlefield, Canada has mostly sidestepped the issue.

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Litigation

Dismissal for delay in arbitration: Searching for the right test

By Alexandre Kaufman and Alexander Gay July 6, 2018 6 July 2018

Dismissal for delay in arbitration: Searching for the right test

 

Some delays in arbitration are unavoidable. Others are the fault of the parties. Worse yet, the plaintiff is sometimes the one responsible. 

When can an arbitral tribunal dismiss for delay? The power to do so in Canada is statutory and does not derive from any inherent power of an arbitral tribunal to control its own process. Under Ontario’s Arbitration Act, 1991 it can dismiss a proceeding where there is delay by the party who has commenced the arbitration (s. 27(4)).  But the word “delay” is not defined. The Act is also silent on the factors that an arbitral tribunal should consider when exercising its discretion. And there is no jurisprudence in Canada on the subject either. 

Still, when the Act is considered as a whole, there are limits to the exercise of discretion by an arbitral tribunal. Specifically, it provides that a tribunal can set aside an award on the ground that the applicant was not treated equally or fairly or had no opportunity to present or respond to the case (s. 46(1) 6). 

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CBA Futures

Legal futures round-up

By Yves Faguy July 4, 2018 4 July 2018

Legal futures round-up

 

Summer heat be damned. Time for a quick round-up of notable trends and developments and views that highlight innovation in the legal industry.

Out of Quebec is news that the CyberJustice Laboratory at Université de Montréal is embarking on a major international research project, funded by the Social Sciences and Humanities Research Council of Canada, on AI and justice. Over the next six years, 45 researchers will study how AI can help improve access to justice. Leading the project is Professor Karim Benyekhlef, the director of the Laboratory. “At first, I think AI is going to be used for low-intensity disputes,” says Benyekhlef. “It’s useful for users of the justice system who want to get an idea of whether they have a case that’s worth pursuing or not.”

Speaking of which, Thomson Reuters does a deep dive into the alternative legal service providers market. Three spoiler takeaways: The decision by law firms to use an ALSP is no longer just about cost; they want specialized expertise.  They’re coming around to viewing ALSPs as collaborators of sorts, not just the competition. And AI will continue to fuel the trend.

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Money matters

Common cents: A young lawyer’s financial Top 5

By Julie Sobowale July 3, 2018 3 July 2018

Common cents: A young lawyer’s financial Top 5

 

You worked your butt off making the grade in law school, then articling, then passing the Bar exam. But you found a job and you’re making good money and it’s time to enjoy it, right?

Except … there’s student loans and buying a new wardrobe, and you’ve been talking about buying a house…

“You’re making a big salary, probably the most money you’ve ever made, but you have big debt,” says Jessica Moorhouse, a certified finance counsellor specializing in working with millennials. “Young lawyers can end up spending so much to live this lifestyle and it becomes really tough to pay debt. Then you get a house and it becomes more expensive to live.”

Landing your first job as a lawyer can give you the ground you need to start of a good financial future. But you studied law, not personal finance. So what’s a young lawyer to do? The best advice is usually common sense – things we all know, but need to be reminded of every so often. Here are some common-sense tips for putting your financial house in order.

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Canada Summer Jobs

Concrete challenge: Another fight over the Canada Summer Jobs attestation

By Beverley Baines June 29, 2018 29 June 2018

Concrete challenge: Another fight  over the Canada Summer Jobs attestation

 

The constitutionality of the Canada Summer Jobs attestation requirement returns to the Federal Court in Sarnia Concrete Products Ltd’s application for judicial review after Service Canada denied it a grant to fund one student job. That was because the corporation refused to make the attestation that it respects the Charter of Rights and Freedoms, as well as other rights, including “reproductive rights, and the right to be free from discrimination on the basis of sex, religion, race, national or ethnic origin, colour, mental or physical disability, sexual orientation or gender identity or expression.”

Instead, Sarnia Concrete attached a letter claiming the attestation requirement violated its Charter rights to the freedoms of conscience, opinion, belief, thought and expression. The contention is almost identical to the one made unsuccessfully in January when the Right to Life Association of Toronto applied for an interlocutory injunction to stay the addition of the new attestation requirement. The only difference is the Association also claimed equality rights.

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CBA influence

Taking leave: Federal and provincial parental leave allowances may differ

By Kim Covert June 28, 2018 28 June 2018

 

The storybook version of new parenthood is a glorious nesting time in a tidy house with a baby who sleeps long enough for you to sleep and (if you want a longer bonding period) a choice to stretch Employment Insurance payments for 61 weeks.

The reality can be much different: a long delivery, recovery not improved by lack of sleep – and who needs to shower more than once a month anyway? And then finding out that while the federal government may let you choose up to 61 weeks of parental benefits, your province or territory has no corresponding right to parental leave for that long, meaning you’re going to get a lot less money than you expected, over a shorter period of time.

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