The Power of Perspectives

The Canadian Bar Association
Corporate counsel

Lawyers telling stories

By Mark Weber June 27, 2017 27 June 2017

Lawyers telling stories

You are always competing for attention when you speak. Whether you are trying to get buy-in for a new legal process, have your say in strategic business decisions or get your child to put on her shoes in the morning, you need the other person to listen—and care about—what you are saying. And the simple truth is that all listeners have a lot of other things on their minds, and many of those things feel more interesting and pressing to them than you.

One of the most effective tools of engagement is one lawyers too seldom employ: good stories. Jonathan Gottschall calls humans the “storytelling animal,” and with good reason. We use story to transmit information in a memorable way and to create social bonds.

The problem? Lawyers do not generally like to think of themselves as storytellers, as if that somehow makes them manipulators or diminishes their importance. However, think of the most memorable presenters you have seen or the best conversations you have had. Such moments almost invariably involve a story. We are wired to listen to, absorb, and, to at least some degree, retain narrative.

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CBA Influence

Building a foundation for data-collection under MAID

By Kim Covert June 27, 2017 27 June 2017


Too onerous, too cumbersome, and possibly not quite respectful enough of privacy, are some of the responses from the CBA’s End of Life Working Group to a Health Canada consultation on a monitoring regime for those seeking a doctor’s assistance to end their lives.

The Medical Assistance in Dying Act passed in June 2016 acknowledges the importance of a comprehensive monitoring system to collect and analyze data about the demand for medical assistance in dying, and to monitor trends.

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Arbitration

Supreme Court makes it harder to appeal arbitration awards

By Mark Bourrie June 26, 2017 26 June 2017

Supreme Court makes it harder to appeal arbitration awards


The Supreme Court of Canada has made it even tougher to go to court to overturn decisions made by arbitrators.

It has ruled that the courts, when reviewing an arbitrator’s interpretation of statute, should use the reasonableness standard and tease out questions of law from issues of fact.

In its ruling last week in Teal Cedar Products Ltd v British Columbia, the Supreme Court overturned a British Columbia Court of Appeal decision that had allowed judicial review of an arbitrator’s decision in a dispute between a forestry company and the province. It re-affirmed its 2014 Sattva decision and tightened the standard of review.

By doing so, the court further limited the rights by parties to seek judicial review of arbitration decisions.

Arbitration clauses are increasingly being written into consumer contracts, agreements between large companies, and between governments and private companies. In this case, the parties were governed by arbitration rules written into a piece of provincial legislation, B.C.’s Revitalization Act.

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CBA Influence

Mercosur trade talks: An opportunity for Canada to review its model free-trade agreement

By Kim Covert June 26, 2017 26 June 2017


A cigar may sometimes be just a cigar, as they say, but a trade deal is rarely a simple matter of exchanges of goods or services for money.

Several CBA groups have weighed in on the positions the federal government should take if it decides to formally reopen trade talks with the MERCOSUR bloc, including International Law, Immigration Law, Competition Law, the CCCA and the Anti-Corruption Team. Mercosur, also known as the Southern Cone Common Market, is a customs union established by Argentina, Brazil, Paraguay and Uruguay.

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CBA Influence

Parts of small business tax amendments fall ‘outside the realm of mischief’

By Kim Covert June 26, 2017 26 June 2017


A proposal in the 2016 federal budget to change section 125 of the Income Tax Act dealing with the Small Business Deduction risks creating unintended consequences for businesses across the country, says the Joint Committee on Taxation of the CBA and Chartered Professional Accountants of Canada.

The Joint Committee sent a submission outlining its concerns with the proposed amendments to Finance Canada last summer. It prepared a second submission for the Canada Revenue Agency in February and then met with members of the CRA, who agreed that the statutory language supports the committee’s interpretation. The CRA said that the matter would have to go back to Finance Canada. So in June, the Joint Committee sent its February submission to the Tax Policy Branch of Finance Canada.

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CBA Influence

A few challenges in the reinstated Court Challenges Program

By Kim Covert June 23, 2017 23 June 2017

 

The Canadian Bar Association is happy to see the Court Challenges Program reinstated. The program has played an important role in developing groundbreaking jurisprudence on equality and language rights in Canada.

That said, the reinstated and modernized program as proposed – particularly the decision to extend the scope of the Program and the continued exclusion of Aboriginal and treaty rights – has triggered some concerns.

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National security

The new national security bill: Just tinkering?

By Justin Ling June 22, 2017 22 June 2017

The new national security bill: Just tinkering?

 

The federal government unveiled its wide-ranging national security overhaul this week, to a chorus of decidedly mixed reactions.

The omnibus legislation, bill C-59, updates a wide array of Canada’s national security framework, from adding the role of an Intelligence Commissioner, tasked with approving operations and activities; to the newly-created oversight committee, designed to keep a watchful eye on the wider security environment; to the creation of a standalone legal authority for the Communication Security Establishment, the country’s spy agency that performs foreign electronic surveillance.

At the core of the bill is a plan to trim aspects of C-51, the Harper government’s previous attempt to overhaul the Anti-Terrorism Act and CSIS Act, which drew heavy criticism from a variety of constitutional and criminal lawyers.

One of the most controversial aspects of C-51 was its commitment to allow CSIS to break Canadians’ Charter rights in pursuing its newly-afforded disruption powers.

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CBA influence

‘Use’ requirement for trademark registration doesn’t need fixing

By Kim Covert June 22, 2017 22 June 2017

 

Amendments  to the Trade-Marks Act made in 2014, despite not being fully implemented yet, have already encouraged squatting and over-claiming, and have resulted in a 75 per cent increase in the number of Canadian applications waiting to be registered, from 40,000 in 2014 to nearly 70,000, the CBA National IP Section says in a letter to Innovation, Science and Economic Development Canada.

“We believe many of these pending applications would be registered, but for the current requirement to file a declaration of use,” the Section says.

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CBA Influence

End of life: Chairs are seated, let’s get to work

By Kim Covert June 22, 2017 22 June 2017


In April, the Council of Canadian Academies announced the appointment of its Expert Panel on Medical Assistance in Dying, to be chaired by former Supreme Court Justice Marie Deschamps.

It also announced the chairs of the working groups tasked with studying the three areas that the federal government marked out for further study when it passed the medical assistance in dying law: mature minors, advance requests and mental illness.

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Big picture

The long road to reconciliation

By CBA/ABC National June 19, 2017 19 June 2017

The long road to reconciliation

 

In 1996, the Royal Commission on Aboriginal Peoples issued a roadmap for transforming the relationship between Aboriginal peoples and the Crown. The majority of its recommendations were never implemented. But its findings “opened people’s eyes and changed the conversation about the reality for Aboriginal people in this country,” the Truth & Reconciliation Commission later wrote.

In 2016, Canada declared its full support for the UN Declaration on the Rights of Indigenous Peoples which recognizes Indigenous Peoples’ rights to self-determination, language, equality and land, among others.

Despite some progress, however, the issues identified more than 20 years ago remain a pressing concern. As Canada prepares to mark National Aboriginal Day on June 21, here is a snapshot of the community.

Source: Aboriginal Peoples in Canada: First Nations People, Métis and Inuit, 2011 National Household Survey, Statistics Canada.

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Cover story

Will the Jordan ruling speed up reform of our justice system?

By Doug Beazley June 16, 2017 16 June 2017

Will the Jordan ruling speed up reform of our justice system?

 

Back in March — less than a year after the Supreme Court of Canada rolled a live grenade into the nation’s courtrooms with its ruling on R v. Jordan — someone asked Eric Gottardi what he thought the long-term fallout from the decision would be. “I still don’t know what to think of it,” he said. “Whether they’re right or wrong, time will be the judge of that.”

Ask him the same question today and you’ll get roughly the same answer. “The thing is, I still think it’s too early to tell,” says Gottardi, the Vancouver-based criminal lawyer who represented Barrett Jordan on trafficking charges before the SCC when — in an unusually contentious 5-4 split decision — the justices not only ruled that the 49.5 months it took to complete Jordan’s trial constituted a violation of his Charter rights, they set a hard cap on the length of trials: 18 months in provincial court, 30 months in Superior Court.

“We have to see what happens with subsequent cases. We still don’t know if Jordan has rewritten all the relevant jurisprudence, or just the central stuff. In the short term, I think most of the impact has been good. We’re used to seeing these sorts of warnings from the courts almost cyclically. But it’s a perpetual problem — and long-term, it’s not getting any better.”

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In person

In person: Orlando Da Silva

By CBA/ABC National June 16, 2017 16 June 2017

In person: Orlando Da Silva

 

A former president of the Ontario Bar Association, Orlando Da Silva became a mental health advocate after opening up about his personal struggle with depression. He is counsel with the Crown Law Office – Civil, Ministry of the Attorney-General, Ontario.

National Magazine: Who has had the biggest influence on you and why?

Orlando Da Silva: My father was an angry working class man who suffered no fools and demanded excellence from his children. He was a hard man to please. He left home when I was 10 and died when I was 19 and he was only 51. Yet, in his short life, he taught me about perseverance and persistence. I have used both to challenge my doubts and fears, which, in turn, allowed me to engage the world in rewarding and often surprising ways. So in the end, my father taught me gratitude for having, and continuing to live, an interesting life.

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