The Power of Perspectives

The Canadian Bar Association
Technology

Blockchain: Why lawyers should take note

By Kim Nayyer May 30, 2017 30 May 2017

Blockchain: Why lawyers should take note

 

In recent months, discussion of legal issues and business applications of blockchain have proliferated in the press and on legal technology and blockchain technology websites. In April, the ABA even held a day of blockchain discussion.

Many will have first heard of “the blockchain” in the context of Bitcoin, the cryptocurrency developed in 2009. Blockchain is the term given to the computational model underlying Bitcoin. Leaving aside the mystique associated with Bitcoin, and separate and apart from the idea of cryptocurrency, its peer-to-peer, secure, verified transaction system is revolutionary. At minimum, blockchain can be understood as a means of creating trust in and establishing evidence of transactions without the need for a traditional trusted intermediary. Or as one wrote, ”Blockchain is an escrow of conclusive transaction evidence. That’s it … All you need to know as a lawyer, a banker, a creditor, a vendor, a buyer, and a debtor is that blockchain eliminates transaction disputes.”

Without delving into computing and mathematics, one can see the essence of blockchain in a few fundamental features, well illustrated in, for example, The World Economic Forum's "What is Blockchain?", or IBM’s “Blockchain, How it works.” Here is a distillation:

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Climate law

Moving to a low-carbon economy is the future story of growth

By Yves Faguy May 29, 2017 29 May 2017

Moving to a low-carbon economy is the future story of growth

 

OECD countries should work to raise the cost of carbon emissions to US$100 per metric ton by 2030 to meet pledges made under the Paris Climate Agreement to keep global temperatures from rising above 2°C.

That’s according to a report released in Berlin today by The High-Level Commission on Carbon Prices, led by Nobel Laureate Joseph Stiglitz and Lord Nicholas Stern:

The proposed federal pricing in Canada would see a mandatory minimum floor price of CAN$50/ton in 2022. (Carbon should be priced at US$40-$80 per ton by 2020, says the Stiglitz-Stern report).

In China, Russia, Brazil, and South Africa the price of carbon in the power and industrial sectors should rise to US$75/tCO2 by 2030, in conjunction with a phasedown of fossil fuel subsidies.

The economists make the case that effective pricing carbon will help drive innovation in technologies and new business models, and therefore ultimately  boost productivity.

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Supreme Court of Canada

Is there a duty to consult in the legislative processes?

By Justin Ling May 25, 2017 25 May 2017

Is there a duty to consult in the legislative processes?

 

The rules around the Crown’s duty to consult have come a long way in Canada, thanks in large part to courts who have been broadly supportive of the principle that when the Crown is planning action that that could have an adverse impact on Indigenous or Treaty rights, those communities should be heard and, where appropriate, accommodated. A recent example involves the Supreme Court of Canada Supreme Court declaring Aboriginal title in Tsilhqot'in Nation v. British Columbia in 2014. 

But what if Parliament were required to consult Indigenous peoples on legislation it plans on adopting? 

The Supreme Court granted leave last week in a matter that may begin to answer that question. 

In Courtoreille v. Canada, the Mikisew Cree First Nation — represented by Chief Steve Courtoreille — claims that the previous government introduced and adopted omnibus legislation passed by into law without consulting with his nation. That, Courtoreille argued, abridged the Mikisew nation’s treaty rights. 

The dispute is a complex one that strikes at the very core of Canada’s system of governance.

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CBA influence

Time to revitalize the business immigration program

By Kim Covert May 25, 2017 25 May 2017

Time to revitalize the business immigration program

 

The key to a thriving economy is a strong, skilled and knowledgeable workforce. And while in a perfect world a company might be able to find that skill and knowledge on its doorstep, the reality in the global economy is that companies might have to look far and wide for the right people.

Under current guidelines, leading stars such as economist Janet Yellin, Microsoft’s Bill Gates, director Sofia Coppola or chef Ana Ros might not be able to get a work permit to operate a business or be self-employed in Canada.

“Canada needs to attract and retain temporary and permanent business workers as key talent to support economic development in today’s competitive global market,” says the CBA’s National Immigration Law Section in a recent submission to Immigration, Refugees and Citizenship Canada. In fact, the Section notes, the government has made it clear in the Immigration and Refugee Protection Act that it is committed to pursuing economic goals through business.

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Legal information

A new player in Canada's legal information market

By Yves Faguy May 24, 2017 24 May 2017

A new player in Canada's legal information market

 

Distilling large amounts of complex information for others has always been part of what lawyers do.  But even they need help finding it, which is why providing legal information is such a big part of the legal services business.

Over the last decade, the two main players in this space in Canada, LexisNexis and Thomson Reuters, have done just that, and more, by betting on technology to support lawyers in firms and law departments in applying their legal knowledge.

Now, a new competitor hopes to shake-up the space. Earlier this month, Compass, the new Canadian legal research platform — and new incarnation — of Maritime Law Book, announced that vLex, a Barcelona and Miami-based legal publisher, and California-based Justia were taking a stake in the company.

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Perspectives from abroad

Ethical mining: A South African perspective

By Mariam Awan May 24, 2017 24 May 2017

Ethical mining: A South African perspective

 

The mining industry in South Africa has seen a push for economic liberalization aimed at attracting foreign investment. However, foreign investment and economic growth do not automatically lead to a higher standard of living and can even contribute to gross human rights and environmental violations. As there no are binding minimum standards for mining operations within the international community, foreign governments can play only a limited role in encouraging ethical behaviour of mining companies abroad. What’s more, victims of environmental damage and human rights violations have little success gaining access to foreign courts.

It’s up to South Africa’s government to regulate the licensing and monitoring of the industry by providing a predictable regulatory framework that is consistently enforced.

South Africa is a leading source of platinum, chromium, manganese and other minerals. Under South African common law, a landowner owned all the minerals underneath the soil. However, under the Apartheid regime, non-whites were precluded from acquiring roughly 80 percent of the land in South Africa, which explains the enduring poverty among black South Africans today.

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Legal innovation

Connecting hearts and minds in your law firm's data strategy

By Yves Faguy May 23, 2017 23 May 2017

Connecting hearts and minds in your law firm's data strategy

 

Scott Mozarsky of Bloomberg BNA shares his views on big data and analytics disrupting the legal sector in a recent Forbes interview.  Here he discusses how data helps guide GCs in retaining external firms:

Selecting and retaining outside counsel used to be a lot more about art than science. Pre-existing relationships and referrals often drove decisions regarding representation by outside counsel. Data and technology have changed the selection process and made it much more scientific. Analytical tools allow clients to see which firms have represented clients in different jurisdictions and in front of different judges as well as the type of transactions and cases they have worked on.

As a general counsel, when my company was sued in a jurisdiction outside of the norm or if we were working on a deal involving a unique type of target or state or local law issues, I would call my contacts and ask for referrals. Now, in a matter of minutes, I can figure out the two or three most experienced choices to fit my fact pattern. Also, with significant budget pressure on in-house teams, transparency driven by data and technology often enable outside counsel to save fees by identifying experienced and effective outside counsel from mid-sized firms or from firms that are not based in large cities.

Indeed, law is becoming digitized, Mark Cohen writes, though law firms have so far failed in keeping up with the dramatic changes occurring in the marketplace:

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Litigation privilege

Does litigation privilege always apply to internal investigations?

By Alexander Gay May 19, 2017 19 May 2017

Does litigation privilege always apply to internal investigations?

 

Lawyers are often asked whether a given communication is subject to litigation privilege. In answering this question, lawyers have to assess the facts and objectively determine whether the dominant purpose of a communication is in respect of litigation that is contemplated, anticipated or ongoing.

The issue is far more tenuous, however, in criminal matters.   The question is whether all internal investigations in respect of a contemplated, anticipated or ongoing criminal investigation are privileged.  Determining when litigation is being contemplated calls for different considerations that have yet to be fully considered by the courts in Canada.  But a recent decision from England’s High Court recent may come as a surprise to in-house counsel who assume that litigation privilege is more encompassing than it may really be.  

The basic rule is that litigation privilege applies to communications between a lawyer and third parties or a client and third parties, or to communications generated by the lawyer or client for the dominant purpose of litigation when litigation is contemplated, anticipated or ongoing.

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Immigration

Why the Preclearance Act needs to be be significantly changed

By Yves Faguy May 18, 2017 18 May 2017

 

Calgary lawyer Michael Greene from the CBA’s Immigration Law Section appeared this week before the House Standing Committee on Public Safety and National Security to give recommendations on Bill C-23 on  the preclearance of persons and goods in Canada and the United States.  The submission is here, and CBA National reported on it last month. We caught up with Greene and asked him to explain why the CBA Sections do not support Bill C-23 in its current form.  He also shares his views on some of the challenges involved in changing the legislation.

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CBA Influence

CBA submission on the environmental review process

By Kim Covert May 18, 2017 18 May 2017


In the tennis match that is the government’s review of its environmental assessment process, the ball is back in the CBA’s court – and the Association is calling a fault on the play.

In December, the CBA’s National Aboriginal Law Section and the National Environmental, Energy and Resources Law Section made a joint submission to the expert panel in Vancouver, and followed up with a letter in response to questions asked by the panel.

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Children's rights

CBA rolls out child rights toolkit

By CBA/ABC National May 17, 2017 17 May 2017

 

The CBA has launched an online toolkit packed with information and resources to help lawyers, judges and other professionals make better decisions for children.

The CBA Child Rights Toolkit provides checklists, key cases, precedents and sample facta plus basic information on overarching principles of children’s rights, constitutional considerations, legal representation, the role of independent human rights institutions and child rights impact assessments.

It is designed to help identify breaches of legal rights and provide remedies across a broad range of practice areas from family law and child protection to immigration and education law.

The resource is a collaborative effort of 13 CBA sections led by the UN Convention on the Rights of the Child subcommittee of the Children’s Law Committee. It was funded by the CBA Law for the Future Fund, and inspired by the need to improve access to justice for children in Canada.

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Human rights

CBA appearance on transgender bill

By Yves Faguy May 15, 2017 15 May 2017

CBA appearance on transgender bill

 

Last week, Marie Laure Leclercq, lawyer with De Grandpr√© Chait, and Siobhan O’Brien, associate with Hicks Morley, appeared on behalf of the CBA before the Senate Legal and Constitutional Affairs Committee. The CBA believes the bill will advance equality in Canada, and provide tangible protections for transgender people from discrimination and hate crimes. 

It encouraged Senators to pass Bill C-16, An Act to Amend the Canadian Human Rights Act and the Criminal Code, without further amendment. CBA National reported in March on how the Senate has been delaying and frustrating passage of the act. The CBA’s submission reads:

Bill C-16 represents a long overdue step to include these protections expressly in areas of federal jurisdiction. This is not a bold move, nor should it be controversial. The Canadian Human Rights Commission takes the position that the Commission, the Tribunal and the courts view gender identity and gender expression as protected by the Canadian Human Rights Act. Statutory protections on one or both of these grounds are already available in all but one territory (Yukon). In all jurisdictions, protections for transgender persons are implicit in the law.

It’s worth noting that the Yukon government introduced a trans rights bill in its legislature last month.  Two bills in New Brunswick aimed at expanding trans rights passed final reading last month.

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