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The Canadian Bar Association
CBA Influence

Excising uncertainty: Comments on proposed amendments to the ETA

By Kim Covert November 30, 2017 30 November 2017

 

The purpose of a definition is to define. The purpose of a clarification is to clarify. According to the CBA Commodity Tax, Customs and Trade Section, draft amendments to the Excise Tax Act do neither, and in fact create uncertainty.

In its submission, the Section comments on subsection 272.1(8) proposed in draft amendments related to “investment limited partnerships.”

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The Supreme Copurt

Sheilah Martin named to the Supreme Court of Canada

By Yves Faguy November 29, 2017 29 November 2017

Sheilah Martin named to the Supreme Court of Canada

Prime Minister Justin Trudeau has named Justice Sheilah Martin from the Alberta Court of Appeal to the Supreme Court of Canada to replace the seat left vacant by retiring Chief Justice Beverley McLachlin, who is retiring on December 15. In doing so the prime minister maintains the gender composition of the court (five men, four women), which now has two justices hailing from Alberta (the other being Justice Russell Brown). The first female Dean of Law at the University of Calgary, Justice Martin was first appointed to the Alberta Court of Queen’s Bench in 2005 and then elevated as a Justice on the Alberta Court of Appeal in 2016. She is well known for her particular interest in Indigenous issues and advancing justice for women in Canada.

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Equality rights

Federal government apologizes to LGBTQ Canadians at last

By Justin Ling November 28, 2017 28 November 2017

Federal government apologizes to LGBTQ Canadians at last

 

Justin Trudeau made a formal apology in the House of Commons this afternoon, trying to make amends for decades of harassment and discrimination aimed at LGBTQ Canadians by the federal government.

That apology, and the symbolism behind it, is the bookend of a class action lawsuit launched by hundreds of veterans and former public servants who faced investigations, interrogations, and even firings due to anti-LGBTQ policies held by the federal government for most of the 20th century, right up until the 1990s.

As part of the apology, Trudeau has also tabled legislation to expunge the criminal records of those arrested and prosecuted under anti-gay laws.

What is the LGBTQ purge?

For decades, Ottawa tried to ferret out queer members of the public service. At times, that campaign was made possible by using a polygraph machine designed to identify LGBTQ individuals. In some cases, the Canadian government attempted to rid those public servants of their same-sex attractions.

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CBA Influence

Legal aid in Canada: Same conclusions, different report

By Kim Covert November 28, 2017 28 November 2017


Federal legal aid funding has not kept pace with costs. There is a patchwork of legal aid assistance levels across the country. Federal money should be earmarked for civil legal aid. Money spent on legal aid saves money elsewhere in the social assistance system. Technological advances should be leveraged to improve access to legal aid services. National data collection should be improved.

Many of the 10 recommendations from a report on legal aid by the House of Commons Standing Committee on Justice and Human Rights probably sound like déjà vu all over again.

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CBA Influence

Past due: More time, consultation needed for prompt payment legislation

By Kim Covert November 28, 2017 28 November 2017


In a perfect world, no one would need a law to make them pay their bills on time.

In an imperfect world where such a law is apparently necessary, it’s best if that law is founded in extensive consultations with those it affects and doesn’t create more problems than it solves.

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The practice

Legal podcasts that are worth your time

By James Careless November 28, 2017 28 November 2017

Legal podcasts that are worth your time

 

All across Canada, lawyers are expanding their legal knowledge and know-how by listening to free Canadian legal podcasts on their smartphones and computers.

“You can listen to these podcasts, which usually feature informal conversations touching upon a range of law-related issues, while you’re in the subway or waiting in line at Starbucks,” said Ian Hull, partner in Toronto Hull & Hull LLP. “For young lawyers in particular, legal podcasts are a great way to learn about unfamiliar areas of the law in a low-stress, entertaining manner.”        

Combining the power of expert opinions with the intimacy of radio, “legal podcasts, such as those of the McGill Law Journal, offer listeners a glimpse into the minds of legal scholars and professionals from a variety of legal fields and traditions,” said Emma Noradounkian, Podcast Editor for McGill Law Journal Vol. 63. “Listeners tune into legal podcasts to know the scoop on a given contemporary legal issue from those who are most affected by it and those experts who can shed light on how best to resolve it.”

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Equality rights

A long-awaited apology to LGBTQ2 Canadians

By Yves Faguy November 27, 2017 27 November 2017

A long-awaited apology to LGBTQ2 Canadians

The Canadian government has reach an agreement in principle with plaintiffs in a class action filed on behalf of former LGBTQ2 employees of the federal government.

The details of the agreement will be made public tomorrow, as the government is scheduled to make a formal apology in the House of Commons to LGBTQ2 Canadians for its role in past persecution and injustices.

Coinciding with the apology, the Liberal government will also introduce legislation to expunge the criminal records of Canadians convicted in the past for engaging in consensual same-sex activity.

The apology has been a long time coming – some would say long overdue. In March, Michael Motala spoke with the Liberals' special adviser on LGBTQ issues, MP Randy Boissonnault, who addressed some of the reasons why it has taken so long.

 

 

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Book review

Fulfilling the promise of commercial arbitration

By Barry Leon November 27, 2017 27 November 2017

Fulfilling the promise of commercial arbitration

 

A Practitioner’s Guide to Commercial Arbitration, Marvin J. Huberman (Ed.), Irwin Law Inc., 2017

Perhaps the most common complaint one hears about arbitration – both domestic and international – is that it does not live up to its often-promoted attributes of being a less expensive, more efficient and faster method of adjudicating disputes, with the benefit of an adjudicator with appropriate expertise.

The parties, arbitration counsel and arbitrators engage in a ‘blame game’, each saying that the failure of arbitration as a dispute resolution process – or the failure of a particular arbitration – to meet ‘the promise of arbitration’ is due to failures by one, or both, of the others. Often it is heard that an arbitration cost as much (or more) than court litigation, took as long or longer, and was determined by an arbitral tribunal that did not understand the applicable industry, area of law, or both.

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Arbitration

Arbitration and the challenge of maintaining confidentiality in Canada

By Alexander Gay November 24, 2017 24 November 2017

Arbitration and the challenge of maintaining confidentiality in Canada

Confidentiality is often touted as one of the key benefit of arbitration.  But the promise of confidentiality is a tricky matter in Canada, where the open court principle is enshrined. The tension arises when courts find themselves in a position where they require access to documents produced during an arbitration proceeding.

And yet, the courts have a role to play in supporting arbitration.  They must be sensitive to the appeal commercial arbitration holds for parties and be mindful that a legal system that allows easy disclosure of confidential information risks undermining it.  What’s more, in a context where the courts are over-burdened with Jordan applications and where arbitration affords an opportunity to alleviate some of these pressures, the courts need to reach a delicate balance between the open court principle and the confidentiality provisions of an arbitration agreement.

In Ontario, the Arbitration Act and the International Commercial Arbitration Act contain a number of provisions that allow arbitration issues to be put before the courts.  The same holds true in almost all other provincial jurisdictions.

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Internet law

The U.S. plans to end net neutrality

By CBA/ABC National November 23, 2017 23 November 2017

The U.S. plans to end net neutrality

The debate over net neutrality is raging again in the U.S. The Federal Communications Commission has released its final proposal to end net neutrality. It will repeal a 2015 Obama-administration era prohibition aimed at internet service providers against blocking or slowing down consumer access to web content. The move would also limit FCC jurisdiction over broadband internet access services.

What’s the problem?

As things stand, internet service providers can’t charge more for access to certain web sites (such as those that, incidentally, it doesn’t own).  Critics (among them Tim Berners-Lee, inventor of the World Wide Web want all internet traffic to be treated equally regardless of content, origin or destination. Ending net neutrality, they argue, would usher in a two-tier approach that will ultimately produce unfair competition that favours incumbents and hinder the ability of start-up companies to disrupt. Also, there is a legitimate concern that without net neutrality, users will have to have to pay more for the sites their internet providers decide to charge for. Think of when you cut the cord on your cable channel package. It’s a bit like that.

Who’s for it?

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War crimes

Mladić’s genocide and war crimes conviction

By Mariane Gravelle November 23, 2017 23 November 2017

Mladić’s genocide and war crimes conviction

 

Former Commander of the Main Staff of the Bosnian Serb Army (VRS) Ratko Mladić, known as the “Butcher of Bosnia” has been convicted of one count of genocide and nine counts of crimes against humanity and violations of the laws or customs of war. The verdict, handed down by the International Criminal Tribunal for the Former Yugoslavia (ICTY), Trial Chamber I, carries a sentence of life imprisonment for Mladić.  Here is the statement from the ICTY:

Mladić was convicted of genocide and persecution, extermination, murder, and the inhumane act of forcible transfer in the area of Srebrenica in 1995; of persecution, extermination, murder, deportation and inhumane act of forcible transfer in municipalities throughout [Bosnia and Herzegovina, or “BiH”]; of murder, terror and unlawful attacks on civilians in Sarajevo; and of hostage-taking of UN personnel. He was acquitted of the charge of genocide in several municipalities in BiH in 1992.

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Immigration law

Confusion over post-graduate work permits

By Mariane Gravelle November 22, 2017 22 November 2017

Confusion over post-graduate work permits

What do you do when an institutional error threatens your livelihood and your right to stay in Canada? This is what many international students are now facing due, in part, to a processing error by Immigration, Refugees, and Citizenship Canada (IRCC) and to ambiguous language.

The CBC reports that students, notably in Alberta, Nova Scotia and Ontario, received the distressing news that they may not be eligible to receive a  post-graduate work permit (PGWP). PGWPs allow graduates of Canadian post-secondary institutions to work temporarily in Canada and gain experience that can help them gain their permanent residency.

While the PGWP program is federal, it is up to the provinces to designate eligible institutions and specific programs. The issue in this case stems from the fact that not all post-graduate institutions in Canada – and programs therein – render their graduates eligible for the permits.

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