The Power of Perspectives

The Canadian Bar Association
Conflicts of law

From taboo to transparency

By Yves Faguy March 15, 2017 15 March 2017

From taboo to transparency

 

One of the most significant developments over the last decade in the legal world has been the rapid spread of global litigation finance.

It’s easy to understand its appeal, particularly in strict financial terms. Law firms can share some of their risk with investors, who in turn spread it across a portfolio of cases. As an asset class it isn’t tied to the volatility of financial markets. And for plaintiffs, the practice is a means 
to overcome financial barriers to access 
to justice to go after deep-pocketed and well-insured defendants.

But there are also reasons to watch 
out for some of the disruptive effects it 
can have on our justice system. Critics describe litigation funding as the “Wild West of finance,” largely unregulated, 
or only mildly so by judge-made law and a patchwork of statutes, oftentimes at the subnational level.

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Q&A

Andrew Arruda’s big bet on AI

By Yves Faguy March 15, 2017 15 March 2017

Andrew Arruda’s big bet on AI

 

CBA National caught up with Andrew Arruda, one of the co-founders and CEO of ROSS Intelligence, the artificial intelligence-based legal research platform. Yves Faguy asked about the hype surrounding AI, what it means for law firm hiring and what legal organizations should do about it.

CBA National: So, is artificial intelligence being overhyped in the legal marketplace?

Andrew Arruda: As with most new technologies, oftentimes people overestimate where it is today and underestimate where it is going tomorrow. When you interact with an AI system, what typically occurs is that humans want it to be able to do every single thing a human can. And that’s because they grow up watching sci-fi, etc. But that’s just not where we are with AI today. It’s not going to be able to go into court and argue a matter for you, and I don’t know if it ever will. But it’s already adding a ton of value. We see it in legal research, finding better results. You see companies who have brought it into the diligence space – it offers a lot of efficiencies there. Really when you start moving lawyers away from information retrieval so that they’re not doing that, they focus in on high impact work, advising clients, and that speeds 
up their learning curve.

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Conduct becoming

Public narrative vs. the “whole truth” from the courtroom

By Gavin & Brooke MacKenzie March 15, 2017 15 March 2017

Public narrative vs. the “whole truth” from the courtroom

 

At the time of writing, controversy is stirring at four Canadian universities that invited criminal lawyer Marie Henein to participate in a speaker series. A student wrote an opinion piece condemning the decision to invite Henein on the basis that she was Jian Ghomeshi’s defence counsel in his much-publicized sexual assault trial. The director of a Nova Scotia women’s centre echoed the criticism, stating that by extending this invitation to Henein, the universities were “potentially retraumatizing students… who have experienced sexual violence”.

Lawyers are familiar with the challenges inherent in advocating for an unpopular case – and such challenges are exacerbated in such a high-profile case. It is particularly troubling, however, that these critics attributed victim-blaming beliefs to Henein personally because of her advocacy on behalf of her client, and viewed the potential speech as something to suppress rather than an opportunity for productive discussion. 

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Legal education

Linguistic dualism and the LPP

By Anne Lévesque March 15, 2017 15 March 2017

Linguistic dualism and the LPP

 

The launch of the Law Practice Program in 2014 marked one of the most significant changes to the licensing process in Ontario in decades. So it was no surprise that all eyes were on the Law Society of Upper Canada’s Professional Development & Competence Committee last fall as members considered the future of the pilot project. They recommended ending it – however after receiving more than 130 submissions from lawyers, law students and organizations, Convocation voted to extend the project for another two years.

The move was especially significant to members of the francophone bar. Many celebrated it as a sign of the law society’s commitment to meet the distinct needs of Ontario’s French-speaking community. Indeed, even the PD&C report that recommended ending the program acknowledged the unique role and importance of the French LPP and recognized the principle of linguistic dualism. The report further noted that the LPP had enhanced competence in the delivery of French-language services and the practice of law in the language.

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Closing argument

Privacy and prejudice in the genetic age

By Omar Ha-Redeye March 15, 2017 15 March 2017

Privacy and prejudice in the genetic age

 

Imagine a dystopian future where genetically engineered babies give rise to a superior strain of humans who eventually dominate the world. Naturally conceived children are perceived as substandard and pushed to the fringes of civilized society.

It’s what we imagine when we watch science fiction films. But with the mapping of the human genome, and greater identification of specific genes that give rise to a medical predisposition, it’s a reality that some are taking very seriously.

In 2008, the U.S. introduced the Genetic Information Non-discrimination Act (GINA), legislation intended to prevent insurance companies from denying coverage based on a genetic profile and prohibit the use of such information in making hiring, promotion or firing decisions.

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Creative licence

Creative licence: Natasha Bakht

By CBA/ABC National March 15, 2017 15 March 2017

Creative licence: Natasha Bakht

 

"Dance has been an integral part of my life since I was a child. It grounds me and gives me inspiration and, like law, is an avenue to seek social justice and serve the public."

Natasha Bakht, an associate professor at the Faculty of Law, University of Ottawa, is an Indian contemporary dancer and choreographer.

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Indigenous law

Turning back the clock on failed consultations

By Supriya Tandan March 15, 2017 15 March 2017

Turning back the clock on failed consultations

 

Next week the Supreme Court of Canada will hear a case that will clarify how to remedy failed consultations on land-development projects where the Crown has been found to be in breach of its obligations. Of course, the courts have not shied in the past from overturning project approvals that do not respect the process for meaningful consultation. What makes this case unique is the question of whether the Yukon government, in spite of its actions in sandbagging an entire process for the development of land use plans that had been agreed upon, should be allowed to scrap it altogether and go back to the drawing board.

The case involves a modern treaty, the overall "umbrella" agreement of the Yukon Land Claims package, which requires that a third-party commission, in consultation with the Yukon First Nations and the Government of Yukon, develop a land-use plan for traditional territory in the Peel Watershed. Respecting the consultation process outlined in the agreement, the Peel Watershed Planning Commission released a plan that set aside 80 per cent of land for protection while allowing 20 per cent open for development.

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Opinion

Eliminating preliminary hearings isn’t the answer to court delays

By Ian M. Carter March 14, 2017 14 March 2017

Eliminating preliminary hearings isn’t the answer to court delays

 

That old saw about hammers and nails also holds true for scissors: that is, when you think your only tool is a pair of scissors, it will look like cuts are the solution to every problem.

But often cuts, however justifiable they seem in the moment, can end up creating more problems down the road than they were supposed to solve.

AGs in two provinces are now suggesting an end to preliminary hearings as a way to solve problems of delays in criminal courts. The need to find a solution to court delays has been under the spotlight following last year’s Supreme Court decision in Jordan, with reports of criminal cases being stayed or thrown out because it has taken too long for the case to get to court.

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Trade

When the U.S. turns its back on Pacific trade

By Yves Faguy March 14, 2017 14 March 2017

 

 

Adam Behsudi reports on the trade fallout from the U.S. dumping the TPP:

Competitors say they have no choice but to take the money U.S. businesses would have earned otherwise.

“We are not trying to take market share from the U.S. It’s more like you are putting money on the table and pushing it towards us,” said Carlo Dade, director of trade and investment policy for the Canada West Foundation, a Calgary-based think tank.

Carlos Dade (featured in the video above) has an interesting primer where he ranks the possibilities for the other TPP prospects, including Canada:

Without the TPP, Canada does better defensively in not having to worry about competitors gaining access to the U.S. market. But it does worse offensively in having the poorest access to Asian markets of any country on the Americas’ Pacific coast. This makes Canadian attempts to diversify away from its dependence on the U.S. market more difficult.

Canada also appears to stand to gain the most from the TPP going ahead without the U.S. as its companies, but not American firms across the border, will have preferential access to the new bloc. This could create a powerful incentive for firm relocation. Mexico will receive a similar but potentially smaller boost as it lacks Canada’s English language operating environment for service firms.

All of this could be viewed offensively, in both senses of the word, by the Trump administration.

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CBA Futures

Legal Futures round-up: March 14, 2017

By Brandon Hastings March 14, 2017 14 March 2017

Legal Futures round-up: March 14, 2017

 

Inspired by the CBA Legal Futures report on Transforming the Delivery of Legal Services in Canada, here’s our regular round-up of noteworthy developments, opinions and news in the legal futures space as a means of furthering discussion about our changing legal marketplace.

Thompson Reuters’ review of the last decade of legal services concludes that a buyers’ market emerged during the global financial crisis, and that buyers’ market continues today. This is forcing law firms, increasingly, to look at doing things differently, but a paper from McGill suggests Canadian law firms may by talking a good innovation game, while doing little actual innovation.

Mark Cohen writes on legal education requiring a shift for a new legal marketplace, the need for re-regulation of the legal services industry, and changes in the demand for legal services. Jordan Furlong also covers this latter topic is some detail, also in reaction to the 2017 Report on the State of the Legal Market.

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LGBTQ2 rights

Interview with Randy Boissonnault

By Michael Motala March 13, 2017 13 March 2017

Interview with Randy Boissonnault

 

Randy Boissonnault, the MP for Edmonton Centre, is the Prime Minister’s Special Advisor on LGBTQ2 issues. His job is to advise on the federal government’s advancement of the LGBTQ2 agenda, working to promote equality for the LGBTQ2 community, protecting its members’ rights, and addressing discriminatory practices against them.  Michael Motala interviewed him for CBA National.

Michael Motala: Last June Prime Minister Justin Trudeau welcomed Egale's Just Society Report, saying the government shared the same values and objectives and that it would work with Egale “to end discrimination and further guarantee equality for all citizens." Can you please elaborate on what those values and objectives are?

Randy Boissonnault: The values are pretty clear. We believe fundamentally that we are stronger because of our differences, [we are] a welcoming country and that includes LGBTI newcomers in the regular immigration stream, but also LGBTI refugees. This is a place where you can come and you can be who you're meant to be and you have protection under the Charter’s rights freedoms to worship if you want to worship, to love who you want to love and that you're not going to be discriminated against.

In terms of some of the objectives, we [introduced] legislation to have gender diversity and gender expression written into the six sections of the Criminal Code but also to protect people under the Canadian Human Rights Act. That passed the House of Commons; it just last week passed second reading in the Senate. Now, it's going to one of the senate justice committees, then will go to the Senate for a vote. We need to see that get over the goal line, but that's progress.

Just [last week] the Minister of Justice put a piece of legislation in front of the House that will get rid of Section 159 [of the Criminal Code], an anti-sodomy provision that's just going to come off the books. Just the fact that the Prime Minister has announced a special adviser on LGBTQ2 issues is an indication of where our government's heading.

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Economy

Why taxing robots is easier said than done

By Doug Beazley March 13, 2017 13 March 2017

Why taxing robots is easier said than done

 

 

The populist wave turning democratic politics inside out throughout the developed West has many drivers; voter paranoia over migration and terrorism is only the obvious one.

Arguably, a bigger factor is the way globalization and the spread of automation have been eliminating many forms of work. Several solutions have been proposed, from the controversial (protectionism) to the novel (a guaranteed annual income). Bill Gates is now getting people to talk about taxing robots.

“Right now, the human worker who does, say, $50,000 worth of work in a factory, that income is taxed,” the philanthropist and tech mogul said in a recent interview. “If a robot comes in to do the same thing, you’d think that we’d tax the robot at the same level.”

What Gates proposes is to use the revenue from a robot tax to invest in employee re-training, to speed up the painful adjustment from one form of economy to another. What he fears is a neo-Luddite revolt against automation and new technologies in developed nations. He’s not wrong to worry about it; economists recently told the U.S. Congress that workers earning less than $20 an hour have an 83 per cent chance of losing their jobs to machines.

But how would a robot tax work? Would it work?

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