The Power of Perspectives

The Canadian Bar Association
The profession

The Law Society of Upper Canada should stick to its statutory knitting

By Léonid Sirota November 7, 2017 7 November 2017

The Law Society of Upper Canada should stick to its statutory knitting

 

As Yves Faguy already noted in this space, the soon-to-be-Law Society of Ontario’s demand that its members “create and abide by an individual Statement of Principles that acknowledges [their] obligation to promote equality, diversity and inclusion generally, and in [their] behaviour towards colleagues, employees, clients and the public” has been quite controversial. Perhaps understandably, the debate has focused on the substantive merits of such a policy in promoting diversity and inclusion, and on its impact on the freedoms of conscience and expression. Yet the policy raises other questions too, not least that of the scope of the Law Society’s regulatory authority―both as a matter of positive law, under the Law Society Act (LSA), and as a matter of principle and policy.

As I have already noted elsewhere, it is not obvious that the LSA allows the Law Society to demand that lawyers “promote” a particular set of values, be it ever so laudable―except, arguably, in the process of “prescribing oaths and affirmations for applicants for a licence or any class of applicants for a licence” (section 62(0.1.26). If it exists, the authority to do is presumably implicit in the Law Society’s “function … to ensure that … all persons who practise law in Ontario … meet standards of learning, professional competence and professional conduct that are appropriate for the legal services they provide” (section 4.1(a)). This function, in turn, must be exercised “hav[ing] regard to” a number of “principles”, among which are duties “to maintain and advance the cause of justice” and “to protect the public interest” (section 4.2).

Is this enough?

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Offshore tax

Paradise Papers: Tackling creative compliance

By Justin Ling November 6, 2017 6 November 2017

Paradise Papers: Tackling creative compliance

 

It’s been more than a year since a consortium of news outlets worldwide released details on an international network of tax havens and shelters, some employed by the rich and powerful to avoid domestic taxes, known as the Panama Papers dump.

The leaks led to resignations in Iceland, Malta, Spain, and rocked governments the world over. Canada, however, was relatively spared.

But Trudeau’s inner circle was implicated in murky tax avoidance this week, after the Toronto Star and CBC/Radio-Canada published details from the Paradise Papers, more leaks from the world of tax shelters and aggressive tax avoidance.

What do the documents say? The Star reported Sunday that Stephen Bronfman and Leo Kolber, two prominent Liberal fundraisers and allies of the Trudeau family, held a Cayman Islands trust to hold revenue from the Bronfman family’s Israeli investments.

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The profession

The CBA proposes incivility test in Groia intervention

By Yves Faguy November 6, 2017 6 November 2017

The CBA intervened today in the Groia hearing before the Supreme Court of Canada.  In 2011, the Law Society of Upper Canada found that Joe Groia engaged repeatedly in uncivil conduct in the defense of his client, John Felderhof, the chief geologist and central figure of the Bre-X Minerals scandal. The trial judge made no formal complaint to the Law Society about Groia’s conduct. Even so, a disciplinary panel found that the lawyer violated professional conduct rules by being rude and lacking respect for the court.  The Ontario Court of Appeal affirmed the Law Society’s ruling.

Represented by Norton Rose’s Pierre Bienvenu and Matthew J. Halpin, the CBA is proposing a two-step test for courtroom incivility amounting to professional misconduct that properly balances three different values – courtroom civility, the independence of the judiciary, and the right of litigants to fearless and zealous representation.  The proposed test is as follows:

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Competition law

Big data and merger reviews

By Mark Bourrie November 3, 2017 3 November 2017

Big data and merger reviews

 

Canadian policy makers should look at the effects on the economy of mergers of big data corporations, rather than see these deals as a threat to privacy, experts told a Canadian Bar Association conference on competition law last week.

Speaking at the Ottawa session, Paul Johnson, a former Washington, D.C.  economist who now holds the T.D. MacDonald Chair in Industrial Economics at the Conference Board of Canada, said over-enforcement of competition law could stifle technical innovation in Canada.

This was the tack taken by the Competition Bureau in a position paper released by the Competition Bureau Sept. 18, and now the focus of consultation.

“Data’s been around since the 1800s,” Johnson told about 75 competition lawyers who attended the CBA Competition Law conference session on big data and competition regulation. “Dunn and Bradstreet is a data company. They were founded at the mid-19th century. There have been big data anti-trust cases for quite some time. 

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What is cyber warfare, exactly?

By Mariane Gravelle November 1, 2017 1 November 2017

What is cyber warfare, exactly?


They’ve become commonplace nowadays: headlines announcing the spread of a virus or the hacking of an important website or institutional database. These occurrences can be debilitating for private and public sectors alike and, yet, no official law or treaty exists to regulate them. Given the speed at which technology develops, it is not surprising that existing frameworks and regulations do not account for all of the ways in which cyber warfare can be waged.

Increasingly sophisticated technology has made lives easier in many respects but has also given nefarious parties countless methods in which to disable services and institutions in ways that could seriously harm us. Now that so much of our lives are lived through the use of technology, it is reasonable to assume that an increasing amount of attacks will come by way of cyberspace – in fact, Forbes has deemed 2017 the year of cyber warfare.

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CBA influence

Repository for unclaimed pension entitlements a good idea

By Kim Covert October 31, 2017 31 October 2017

 

If you have a sneaking feeling that you forgot to close out a bank account a long time ago, maybe in a province where you used to live, the Bank of Canada’s unclaimed balances registry can help you either set your mind at rest or set you on your way to reclaiming your cash.

The Bank of Canada takes over accounts that have been inactive for 10 years. If there’s less than $1,000 in the account, it holds the money for 30 years, and if there’s more than $1,000, it will hold on to it for 100 years.

The CBA Pension and Benefits Law Section thinks it would be a good idea if the bank did the same thing for unclaimed pension monies.

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Wellness

Recovery from addiction and reckoning with our common humanity

By Karen Dyck October 30, 2017 30 October 2017

Recovery from addiction and reckoning with our common humanity

 

Michael Bryant is an Ontario lawyer and former Attorney General for Ontario, whose story came to the attention of the broader public when he was charged in 2009 in relation to the death of Darcy Allen Sheppard. Those charges were ultimately withdrawn by the Crown in 2010 and two years later, Bryant released his memoir 28 Seconds: A true story of addiction, tragedy and hope, describing not only the events surrounding the death of Darcy Sheppard but also his struggle with alcoholism and path to recovery in the years before and after that life-altering experience.

 

Bryant spoke in Winnipeg last weekend as part of the CBA’s annual Wellness Workshop on the theme of Addictions, Recovery, Reckonings.  Addressing the preponderance of addiction among members of the legal profession, Bryant asked a variation of the classic nurture versus nature question: 

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Technology

The use of predictive coding in Canada

By Alexander Gay October 30, 2017 30 October 2017

The use of predictive coding in Canada

 

The last few decades have seen an explosion of electronic information which counsel must manage to meet production obligations under the Rules of Civil Procedure.  These obligations remain intense and costly.  Technology can help to lessen the burden, such as keyword searches.  Perhaps the most promising tool to help us tame the electronic information beast is “technology-assisted review,” also called predictive coding.  However, to reach its full potential will require wider acceptance of this review method by counsel and the courts.

Predictive coding is a method where software analyses documents and ranks them for relevance.  Typically, parties agree on a protocol or a methodology in advance.  A representative sample of potentially relevant documents is then drawn from the database.  We call these “seed documents”.   A lawyer will review the initial sample, then rate its relevance to "train" the software to review the whole production.  There is then further statistical sampling to ensure that the exercise is fully responsive.  Once it reaches an acceptable level of accuracy, the software then categorizes all the documents for the parties, without the parties having to manually review any more documents.  

While it all sounds complicated, it is not. And predictive coding has a number of important advantages. It costs a fraction of what it would to review documents manually.  It is faster and more accurate than traditional document review. 

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CBA Influence

Harmonize pension plan regulations for efficiency, says CBA Pension Section

By Kim Covert October 30, 2017 30 October 2017

 

The Pension and Benefits Law Section called once again for a harmonized pension regulatory system in its October comment on the Office of the Superintendent of Financial Institution’s revised draft derivatives guideline for federally regulated pension plans.

Derivatives include an assortment of financial or commodity contracts, including forwards, futures, swaps and options. Used prudently, derivatives can be used by pension plan administrators to implement risk management strategies that can reduce risks associated with a range of financial variables like exchange rates, interest rates, market indices and commodity prices.

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CBA influence

Modernizing air transportation: Tariffs, complaints and the definition of Canadian

By Kim Covert October 27, 2017 27 October 2017

 

It’s probably never a bad thing when a government decides to modernize its laws and regulations. The Canadian Transportation Agency announced last year its intent to do just that – bring regulations that haven’t changed in 25 years or more in line with the current reality.

To that end, last December the CTA released its Discussion Paper on Regulatory Modernization for Air Transportation. The Air and Space Law Section has made its comments on Phase II of the paper, focusing on modernizing the Air Transportation Regulations with a view to streamlining existing tariff and application requirements, and enhancing the certainty of legal obligations imposed on carriers.

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CBA Influence

Once more unto the breach regulations

By Kim Covert October 26, 2017 26 October 2017

The news of a data security breach can send a chill through your bones. Anyone who’s ever shared sensitive information online is vulnerable, and these days that’s more and more of us – think of the three billion people affected by the breach at Yahoo! this summer.

The federal government is drafting regulations under PIPEDA on how and when to notify people whose information may have been caught up in a breach. They published those draft regulations in the Canada Gazette in September.

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CBA influence

Billed-basis accounting and access to justice: CBA submission

By Kim Covert October 25, 2017 25 October 2017

 

When the Finance Department released draft legislation in September to limit the use of billed-basis accounting, the CBA was happy to see that the government had acted to address one of the Association’s major concerns with the changes.

When the government announced as part of the 2017 budget that it planned to change billed-basis accounting and the way work in progress is taxed, the CBA said the proposed two-year implementation was far too short, given the amounts of WIP that may be subject to an unanticipated and accelerated tax consequence. The draft legislation will change that implementation period to five years.

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