The Power of Perspectives

The Canadian Bar Association
The Charter

Ontario Court of Appeal grants stay for Bill 5 ruling

By Justin Ling September 19, 2018 19 September 2018

Ontario Court of Appeal grants stay for Bill 5 ruling

The high-paced legal drama around Doug Ford’s decision to slash the size of Toronto city council mid-election will end, not with a notwithstanding clause, but with a stay.

The Ontario Court of Appeal has ruled to set aside the lower court ruling on the matter.

On July 30, the Ontario legislature gave first reading to Bill 5, which would reduce the number of seats on Toronto city council from 47 to 25, and axe regional municipal bodies elsewhere in the province. The bill received royal assent just over two weeks later.

All this, even though the election period had already begun, under the 47 ward council, on May 1.

Council candidates mounted a constitutional challenge shortly after, arguing that Bill 5 breached their constitutional rights and those of electors.

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Insolvency

The challenges of managing insolvency in the IT sector

By Fiona Morrow September 19, 2018 19 September 2018

The challenges of managing insolvency in the IT sector

 

If a company’s assets consist primarily of ideas, securing funding to keep the development of that idea going forward through an insolvency process can be a real challenge.

That’s because everything that is exciting about new technology becomes part of the problem when an IT company goes into receivership before its product has been fully developed. How do you value an asset that doesn’t exist yet, is highly sensitive to competition, international in scope, and has a high financial burn rate?

“It requires a great deal of confidence in the future product. You don’t see a lot of people rushing forward,” said Lance Williams of Cassels, Brock & Blackwell LLP at the CBA Insolvency Law Conference in Vancouver on Sept. 14. “The key question for financers is: how much do you want to spend, and is it worth spending it?”

The particular difficulties of managing insolvency in the IT sector was the topic of a panel discussion that included Williams, Kathryn Esaw (Stikeman Elliott LLP), Jeff Keeble (Deloitte Restructuring Inc.), and moderator Tevia Jeffries (Dentons Canada LLP).

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Environment law

Could a new NAFTA really promote better enforcement of environmental laws?

By Supriya Tandan September 19, 2018 19 September 2018

Could a new NAFTA really promote better enforcement of environmental laws?

 

As NAFTA negotiations have moved from deadline to deadline, the Canadian government has so far maintained its position that wants to include environment and climate provisions in an updated trade deal.

The question is they could ever be meaningfully enforced.

Both Canada and the U.S. agree that provisions on the environment should be addressed in the main body of the new trade deal, instead of in a side accord as they currently are. As things stand today, the Commission for Environmental Cooperation (CEC), created under the North American Agreement on Environmental Cooperation (NAAEC), handles environmental issues raised under NAFTA. It receives complaints from the public where they suspect a lack of environmental law enforcement.

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Legal marketplace

How litigation funding works in the commercial context

By Luis Millán September 17, 2018 17 September 2018

How litigation funding works in the commercial context

 

Legal disputes can be expensive and risky. They can also hold a great deal of value, which is why a growing number of investors reckon they can insulate themselves against market swings by funding litigation in return for a generous share of the proceeds.

The industry is also growing in sophistication. A practice that started by catering to plaintiffs unable to finance expensive lawsuits against deep-pocketed companies is quickly evolving into an industry that will also bet on big-ticket commercial litigation: Contract disputes, patent and trademark litigation, insolvency litigation, international arbitration. All are growing areas for litigation funding. And institutional investors — from endowment and hedge funds to private equity funds — are taking notice by ramping up their efforts to pour billions of dollars to funds that invest in what they consider is a promising asset class. As Christopher Bogart, the chief executive at publicy-traded Burford Capital, recently told the Financial Times, litigation funding is “a regular part of legal economics.”

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CBA influence

Time for Canada’s Constitution to be fully bilingual

By Kim Covert September 17, 2018 17 September 2018

 

The CBA’s French Speaking Members Section says any modernization of the Official Languages Act should include a requirement for the federal Justice Minister to ensure that the Constitution of Canada is enacted and enforceable in both official languages – and that she show her work.

While French versions of portions of the Constitution were tabled in Parliament 28 years ago, in 1990, the Section notes that they have yet to be enacted.

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The practice

Plain language in law, designed for modern times

By Yves Faguy September 14, 2018 14 September 2018

Plain language in law, designed for modern times

 

From October 25 to 27, Clarity will hold its international conference in Montréal. Clarity is an international professional network whose mission is to promote the use of plain legal language. To give us some background, Guillaume Rondeau, chief plain language specialist at Éducaloi, one of Clarity’s partners, spoke with CBA National to discuss the evolution of plain and effective legal language.

CBA National: The theme of the Montreal conference is “Plain Language in Modern Times.” Why was this theme chosen?

Guillaume Rondeau: What we know in English as “plain language” is mostly referred to as “langage clair” (clear language) in French, although that expression is slowly giving way to “communication claire” (clear communication), and this is an important distinction. When you say clear language, you’re putting a lot of emphasis on language itself—on the words. Popular understanding has it that the problem with law and legal communications is the legal jargon and how inaccessible it is to laypeople. But that obscures the other issues. And so, expertise has evolved over time. Rather than talking about just clear language, we examine the clear communication of law and legal matters. This takes into account communication as a whole. We also look more closely at other issues. So yes, terminology is one thing, but we also need to think about structuring and arranging information in logical ways, and about the way we design information: that is, the graphical presentation of information. Some fonts are easier to read than others. Font size and heading hierarchy are worth looking into. Design refers to images, tables, graphics. Thinking of plain language as clear communication really pushes the boundaries of our expertise.

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Criminal justice

Facilitating routine police evidence may not help court delays

By Justin Ling September 12, 2018 12 September 2018

Facilitating routine police evidence may not help court delays

 

What is routine?

What might seem like an abstract question has taken on larger significance under Bill C-75, the federal government’s omnibus justice reform legislation, which will come back before the Justice and Human Rights Committee as the House of Commons returns this month.

The bill has drawn considerable interest and criticism, particularly concerning its more controversial aspects — eliminating preliminary hearings, doing away with peremptory juror challenges, the hybridization of numerous offences. 

The other issue, at first overshadowed by the other changes, is the provision — s. 278 — proposing to “allow routine police evidence in writing.”

Under the proposed bill, that means anything collected by a police officer related to “gathering evidence and making observations; analysing, preserving or otherwise handling evidence; identifying or arresting an accused or otherwise interacting with an accused.” It extends to any other similar activities “that the police officer undertook in the course of their duties.”

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Environment

Right to be forgotten sets privacy against freedom of expression

By Doug Beazley September 11, 2018 11 September 2018

Right to be forgotten sets privacy against freedom of expression

 

Sir Timothy John Berners-Lee, the British engineer credited with inventing the World Wide Web, called it “dangerous.” Jimmy Wales, founder of Wikipedia, described it as “deeply immoral.” The New York Times warned darkly that it could “undermine press freedoms and freedom of speech.”

“It” is the 2014 ruling by the Court of Justice of the European Union upholding a regulatory agency’s decision to order Google to delete any links to an old news article about an auction of some property belonging to a Spanish lawyer.  The court agreed the old story was no longer relevant, introducing to the EU what many have called a new human right — the “right to be forgotten.”

The debate over the propriety of a right to be forgotten — RTBF, for short — has been raging on both sides of the Atlantic ever since. Its proponents say it’s the only way to protect personal privacy in an age when online information is practically permanent and universally accessible. The Office of the Privacy Commissioner got the ball rolling in Canada with a call for submissions on RTBF and online reputation in 2016, and the release of a draft position paper on the subject in early 2018.

 

Photo: Licensed under Creative Commons by www.quotecatalog.com. Some rights reserved

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Competition law

Firming up Canada’s stance on immunity and leniency

By Ann Macaulay September 10, 2018 10 September 2018

Firming up Canada’s stance on immunity and leniency


Many Canadians were outraged after Loblaw Companies Ltd. and its parent company George Weston Ltd. secured immunity from prosecution last year by coming forward and cooperating in an alleged bread price-fixing scheme. The fact that immunity was granted reinforced a widely held opinion that the federal government is soft on white-collar crime and corruption.

In fact, the feds have in fact been taking a closer look at white-collar crime in general, both domestically and internationally. The government introduced Bill C-74 in March, which would create deferred prosecution agreements in Canada, following a trend similar to legislation in other global jurisdictions.

Although formal immunity or leniency programs exist within the competition law area to promote the detection, self-reporting and prosecution of non-cooperating offenders, “in areas such as anti-corruption, the government is grappling with issues in terms of detection and enforcement,” says Huy Do of Fasken Martineau DuMoulin LLP in Toronto.

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Message from the editor

CBA National is turning a new page

By Yves Faguy September 7, 2018 7 September 2018

CBA National is turning a new page


After 42 years as a print publication, CBA National magazine is moving to a new all-digital platform. Our last print edition was our Summer 2018 issue. In the coming months, we will be focused on redesigning the existing digital publication, growing our online presence and stepping up our recruitment of op-ed contributors, particularly among members.

It was a decision that wasn’t taken lightly, as we know that some CBA members will miss the familiarity and tactile experience of the print issue.

However, amid ongoing concerns about a challenging print market, the time has come to embrace and fully commit to an exclusively digital future, in which we will cultivate an inclusive and engaged legal professional community online.

Six years ago we launched the digital version of CBA National (nationalmagazine.ca) at a time when it had become clear that we could no longer stay on the sidelines and ignore the power of new media.  Our online audience has grown steadily since then, and this transition is the logical next step toward an innovative and sustainable future.

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Insolvency

Lenders vs pensioners: Whose claims should be preferred?

By Doug Beazley September 6, 2018 6 September 2018

Lenders vs pensioners: Whose claims should be preferred?

Attilio Malatesta worked in sales for Sears Canada for more than four decades. In early August, he got the news he’d been dreading: his pension was being cut by $800 a month.

"Who the hell's going to hire a 73-year-old guy?" he said. "I can only stay on my feet for so many hours. I have arthritis.”

When Sears went under in early 2018, it left behind a pension plan burdened with a $260 million actuarial shortfall serving about 18,000 former employees. That shortfall is forcing deep cuts in retirees’ incomes, pushing many of them back into the job market late in life.

This fall, the retirees are going to court to seek an order for a priority claim on Sears’ remaining assets to shore up the pension plan. Even if they win, they’ll lose: those assets can only cover a little more than half of the shortfall.

And the retirees’ case stands a good chance of falling down in the face of a basic aspect of Canadian insolvency law: when a failed company’s pension plan can’t pay what it owes, retirees typically find themselves at the tail end of a long queue of creditors.

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CBA Influence

First Nation claims: Tribunal practice directions must consider funding available to claimants

By Kim Covert September 5, 2018 5 September 2018

 

Stable, adequate funding is a clear concern for the CBA’s Aboriginal Law Section when it comes to appearances before the Specific Claims Tribunal, which handles claims made by First Nations alleging that the federal government has violated a treaty or the Indian Act.

Commenting on draft practice directions which were circulated among members of the Tribunal’s Advisory Committee – which includes Section representatives – members stated the general need for the Tribunal to consider the financial implications of any new procedural steps.

Acknowledging that the Tribunal has no power over funding levels, the Section notes claimants “often have access to significantly less resources than respondents” and that the Tribunal needs to be attuned to this lack.

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