The Power of Perspectives

The Canadian Bar Association
Culture

Netflix Canada: Preferential treatment or the beginning of something new?

By Yves Faguy October 4, 2017 4 October 2017

Netflix Canada: Preferential treatment or the beginning of something new?

 

It’s been a bit of bumpy ride for Heritage Minister Mélanie Joly, whose Netflix deal is drawing mixed reactions, though not in her home province of Quebec, where opposition to the deal (and her sales job) is near unanimous. The government has now passed a motion to impose provincial sales tax on the streaming entertainment giant. The major broadcasting and cable companies in the rest of Canada are also unhappy that Netflix doesn’t have to collect and remit GST or HST, which they do.

What’s the deal? Netflix has agreed with Ottawa to produce at least $500 million in new Cancon over the next five years, in both official languages. So far, only $25 million is committed to develop a market development strategy for French-language content and production.  This hasn’t been well received.  The government is also saying it won’t prop up outdated business models that aren’t viable in the media industry (though Andrew Coyne isn’t so sure). This also hasn’t been well received in some quarters.

Why not pay a sales tax? Michael Geist notes that extending GST to foreign-based digital services is still the subject of debate in Ottawa and elsewhere in the world – a point that Joly herself has tried to make. In the meantime, Geist writes, “requiring Netflix to collect and remit them without developing a broad-based approach to digital sales taxation makes no sense,” as it would not support Cancon anyway.

$500 million? Really? This part is unclear. Netflix could benefit from production tax credits that could range anywhere from 25-36 per cent of its expenses ($125-180 million), according to tax experts that La Presse interviewed.  The Heritage Minister says that Netflix Canada, under foreign control, would not be able tap in to those tax credits. We're going to need clarity on that.

Bottom line: The prevailing feeling among critics is that Netflix is getting preferential Cancon treatment and that it should pay tax like everyone else.  But defenders of the emerging policy give the government and Joly credit for addressing the challenge of making Canadian culture competitive in a global environment and trying a new tack in cultural policy. 

Why the story is far from over:  There is a plan afoot to review The Broadcasting Act, the Telecommunications Act and the Copyright Act. Last week’s announcement is only the beginning.

Read More
International

The Catalan vote: That escalated quickly

By Yves Faguy October 2, 2017 2 October 2017

The Catalan vote: That escalated quickly

A day after the Catalan referendum, marred by disturbing images of the Spanish police’s harsh response, Spain faces a constitutional crisis and the question on everyone’s mind is “what now”? 

The question: “Do you want Catalonia to become an independent state in the form of a republic?”

The answer: Catalonia’s government reports that just under 90 per cent of voters backed independence. But turnout stood at 42 per cent.

Legally speaking: The vote is non-binding. But politics are quickly taking over.

How the main players see it: Spanish PM Mariano Rajoy defended the police’s actions, and maintains the vote is illegal. Catalan leader Carles Puigdemont said Catalonia had “won the right to statehood” before adding today that the region is not seeking “a traumatic break.” He's also calling for outside mediation.

Outside reaction: The EU is stuck in the middle. Mindful not to encourage other separatist forces within its member states, Brussels has made its position clear that the Catalan referendum was "not legal."  Canada is trying its best to be quiet about the police violence with a statement from the foreign minister’s office that solutions must be found “within the rule of law, according to the Spanish Constitution, and through peaceful dialogue.” Parti Québécois leader Jean-François Lisée is calling on all supporters of democracy to denounce the violence.

Next steps: Guy Hedgecoe outlines some possibilities, ranging from new Catalan parliamentary elections to Rajoy’s resignation. “Perhaps the least likely development: Rajoy and Puigdemont finally engage in a meaningful dialogue, possibly with outside mediation.”

Read More
Corporate counsel

New players driving value for legal departments

By Mark A. Cohen and Liam Brown October 2, 2017 2 October 2017

New players driving value for legal departments

 

We are living in an age when consumers demand “better, faster, cheaper.” This takes some adjustment for providers—especially if they are lawyers. After all, law school taught them to be risk averse, correct and exhaustive in creating the best product possible—no matter its value to outcome.

Lawyers are about precedent—stare decisis—not innovation. They are trained to identify issues (read: problems), not create solutions. And they have historically played the role of client defender, not business partner. Their law school training was reinforced upon entry to practice. That was legal culture.

But it’s changing thanks to consumers. Legal consumers and a handful of managed legal service providers have separated legal practice—core tasks that require differentiated legal expertise and skills—from the delivery of legal services—the business of law and the integration of practice and delivery.

Read More
CBA influence

Creating uncertainty: Part 2 of Bill C-46 as flawed as its predecessor

By Kim Covert October 2, 2017 2 October 2017

 

If there’s something the law doesn’t like, it’s uncertainty. The legal system spends years building precedents, forging predictability. Creating an “if-A-then-B” system that’s not quite mathematical, but is logical and on which we can all rely.

The problem with Bill C-46, according to the CBA’s Criminal Justice Section, is that it will do away with decades of established precedent and leave uncertainty in its place. And in a time of overworked, under-staffed courts, court delays and the Jordan ruling, uncertainty is even less attractive than usual.

Read More
Corporate counsel

Reining in budgets: how to weather budget cuts

By Jim Middlemiss September 29, 2017 29 September 2017

Reining in budgets: how to weather budget cuts


Wendy King, Vice-President, Legal, Risk and Governance, and Corporate Secretary at Capstone Mining Corp. in Vancouver, has seen the highs and lows of economic cycles. King, who has built her in-house career in the mining and forest industries, knows firsthand what happens when commodity prices turn south—survival quickly becomes a fight of the fittest.

“You feel the impact faster,” says King (pictured above), whose employer is a base metals miner with a focus on copper. “It’s much more cyclical and your strategy is different depending on the resource,” she says of coping with an economic downturn.

Whether it’s minerals, oil or lumber, one thing is certain when prices turn—budget cuts are the order of the day.

Read More
Trade

Bombardier trade dispute: "We appear to be entering a new phase"

By Justin Ling September 28, 2017 28 September 2017

Bombardier trade dispute: "We appear to be entering a new phase"

 

In the most recent trade spat in the era of “America First” the U.S. Department of Commerce has slapped a 219 percent anti-subsidy duty on Bombardier's C Series aircraft, to punish what it views as illegal states subsidies from Canadian and U.K. governments.

“It’s an astounding number,” says Riyaz Dattu, a partner specializing on international trade with Osler.

The decision, spurred by a complaint from Boeing, has already rocked the already-beleaguered Quebec aerospace company, as their shares have tumbled over the past day.

As Dattu points out, it was expected that the U.S. Department of Commerce would find “some level of subsidization.” But the figure announced by Washington on Wednesday is staggering, even though it may yet be revised down and, eventually, set aside by a NAFTA panel.

Read More
CBA advocacy

The CBA on the privacy of Canadians at airports and the border

By CBA/ABC National September 27, 2017 27 September 2017

 

Information collection and sharing at the border is necessary to ensure the security of Canadians. But collecting and sharing too much of it, or information that is unreliable, can also be harmful to them. It’s why the CBA is advocating for striking a more appropriate balance between national security and preserving our individual privacy rights and freedoms.

In the above video, we interviewed Cyndee Todgham Cherniak and David Fraser, who  are presenting a CBA submission today prepared by the Privacy and Access, Immigration Law, and Commodity Tax, Customs and Trade Sections, as well as the Canadian Corporate Counsel Association (CCCA) and the Ethics Subcommittee of the Policy Committee of the Board.  They are appearing before the House of Commons Standing Committee on Access to Information, Privacy and Ethics.

Read More
Legal marketplace

The Big Four are rivalling global law firms

By Yves Faguy September 27, 2017 27 September 2017

The Big Four are rivalling global law firms

 

Last week, PricewaterhouseCoopers announced it is opening a U.S. law firm in Washington, D.C. The firm will operate as an affiliate, ILC Legal, and will work primarily on international corporate restructuring matters. Its lawyers are being sold as “special legal consultants”, there to advise on foreign law, not U.S. law. It’s hardly the first time a member of the Big Four has made a push into the legal services space (Deloitte, E&Y and KPMG all have legal arms). But Nicholas Bruch writes that PWC seems to have dropped any pretence about keeping things on the low:

PwC’s decision to launch a US office focused on legal services is not a quiet move. The Firm has US offices. In fact, they already have two offices in Washington D.C. They could have easily built legal marketing and business development resources in their existing offices. Instead they established a US law firm. The company knew such an announcement would draw the attention of the legal press – this is almost certainly why they announced it in the manner in which they did. They also knew it would draw attention – from law firms and regulators. They clearly believed the benefits outweighed the costs.

Such boldness is new from PwC and from the Big Four. If PwC’s new office signals anything, it is that the period of cautious expansion has come to its natural end. Law firms should expect more “major announcements” from the Big Four in the future.

 

Read More
Legal innovation

Analytics can make your firm more profitable and more competitive

By James Careless September 26, 2017 26 September 2017

Analytics can make your firm more profitable and more competitive

 

 

Canada’s big law firms have a reputation for being very conservative when it comes to change. “As one top firm said to us early on, ‘We don't like to be first in,’” said Hersh Perlis, Director of the Legal Innovation Zone at Ryerson University. “Heck, we don't like to be second,” Perlis continued: “We like to be third!"

It’s true that not all change is progress, and sometimes the canny bird that doesn’t rush in early gets a good worm.

That said, one change that is developing a proven track record for law firms is analytics. Analytics is about compiling information about how the firm currently does business, then analyzing that data to find ways to change practices to operate more efficiently – and more profitably.

For example, a law firm can figure out how much billable work is currently being done by partners, then run an analysis to see how much of that could be performed by lower-cost non-partner lawyers instead, and reassign the workload accordingly. Such a reassignment can reduce the firm’s expenses , thus improving the bottom line without the need to increase fees.  If the cost reductions are large enough, the firm can even cut client fees while still earning more profit than before.

Read More
CBA Influence

Pensions across borders

By Kim Covert September 25, 2017 25 September 2017


There are few things in life more likely to make most of the population close their eyes, plug their ears and sing “la-la-la” than a discussion about pension funding. Many of us have pensions and look for some sort of financial stability in retirement, so it’s amazing how many people are ready to leap with faith on the idea that there will be enough in the pot cometh the hour.

So if you’re tempted to look elsewhere and hum during this next bit, rest assured that the CBA Pensions and Benefits Law Section is taking care of business.

Read More
Criminal law

Confidential informants: Widening the circle of privilege

By Justin Ling September 22, 2017 22 September 2017

Confidential informants: Widening the circle of privilege

 

Are confidential informants outing themselves to evade prosecution? If so, how should the courts step in to strip them of that privilege? Even if they haven’t, how do you prosecute an informant once they’ve identified themselves as such? 

That was the question before the Court of Queen’s Bench of Alberta earlier this month. 

Here’s the scenario: Police charge a suspect. During the first interview, the suspect reveals information that could later be used at trial. But, during that first interrogation, the suspect also reveals he’s a confidential informant, a fact until then unknown to the arresting officers. 

“The Crown faces a conundrum,” writes Justice J.A. Antonio assigned to the perplexing case. “If it includes the interview, redacted or unredacted, in the disclosure package for the criminal trial, it will effectively be informing defence counsel that Named Person A is a confidential informant.” 

Read More
Litigation

Expert shopping: Paying the price

By Alexander Gay September 21, 2017 21 September 2017

Expert shopping: Paying the price

 

Expert shopping is an all-too-common practice that undermines the legal system as a whole.  It can it result in egregious miscarriages of justice and undermines the confidence in the judicial system.

In 2015 the Supreme Court sounded warning bells on the misuse of expert evidence in its White Burgess ruling and opened the door for challenging witnesses at the voir dire stage for bias. But we have to consider more radical solutions to temper what can only be described as an unsavory practice by counsel.  The manner in which expert evidence is handled in the United Kingdom offers some clues that may assist us in tracing a path forward.      

The root of the problem is that we pay experts to provide testimony.  When counsel do not get full co-operation, or receive evidence that is not as favourable to their case as they would like, they can move on to the next expert and bury the first expert’s conclusions in his or her files.  Litigation privilege shields them from informing the court on the number of experts that have been consulted.  

Read More

Current Issue

Editor's Picks

Google's US court challenge to SCC "repugnant" order

Editor's Picks

Closing tax loopholes for professionals who incorporate

Editor's Picks

Copyright fees at York: Federal Court rejects fair dealing

National TV

  • Thumb

    CBA's intervention in Lloyd v. R

  • Thumb

    Margaret Hagan on the role law schools can play in fostering innovation

  • Thumb

    Melina Buckley on the importance of legal aid benchmarks in Canada

View All Videos

Partners In Your Success