Friday weekly wrap-up

By Yves Faguy August 31, 201831 August 2018

Friday weekly wrap-up

Here’s a quick look at the major legal stories from the past week.

It’s been a stressful week ahead of the Labour Day weekend for the Trudeau government. Yesterday, the Federal Court of Appeal overturned approval of the Trans Mountain expansion project on two grounds. The NEB was wrong not to assess the related effects of maritime shipping. And the government fell short in meeting its duty to consult First Nations. This is not to say that the project is dead, yet.  Ottawa could appeal the decision, and the Prime Minister has assured Alberta’s premier, Rachel Notley, that he “stands by the TMX expansion project and will ensure it moves forward in the right way.” But as Robert James writes “that decision is an indictment of DOJ/NRCAN approach to consultation and their efforts to turn it into a narrow, administrative law process.” Environmental assessments, done right, will save time, money and political heartburn. Notley has announced that Alberta is pulling out of the Trudeau government’s climate change plan.

On the trade front, the U.S. reached a tentative deal with Mexico that would replace the North American Free Trade Agreement — even though it looks a lot like NAFTA, only without Canada (as of this writing).  Canada was scrambling to meet an imposed deadline for today to strike its own preliminary deal so that the U.S. can accommodate a 90-day window required by Congress before Mexico’s change in government.  At least that was the case before reports of talks souring, possibly partly due to off-the-record remarks made by Trump that he isn’t inclined to make any compromises. Talks are still likely to last well into the fall since there has been little progress, reportedly, on the Chapter 19 dispute panels, which the Trump administration wants to scrap and Canada wants to keep.  Trade experts are guessing that, ultimately, the U.S. will gain some limited access to Canada’s protected dairy market – probably not what Quebec Premier Philippe Couillard is hoping for ahead of a provincial election.  Another sticking point is the U.S. demand for a sunset clause (it initially wanted five years), which until now Canada has rejected.  Howebver, the U.S. softened its demands, when it agreed with Mexico that the new bilateral deal would be reviewed every six years and expire after 16.  Canada could be more amenable to that. 

By the way, in that interview with Bloomberg News, Trump also threatened to pull the U.S. out the WTO “if they don’t shape up.”

The Ontario Court of Appeal handed down six rulings affirming the rights of defendants facing anti-SLAPP defamation cases for freely expressing themselves in a matter of public interest. “Expression on matters of public interest is to be encouraged. Litigation of doubtful merit that unduly discourages and seeks to restrict free and open expression on matters of public interest should not be allowed to proceed beyond a preliminary stage,” wrote Justice David Doherty for the court. “Plaintiffs who commence a claim alleging to have been wronged by a defendant’s expression on a matter of public interest must be prepared from the commencement of the lawsuit to address the merits of the claim and demonstrate that the public interest in vindicating that claim outweighs the public interest in protecting the defendant’s freedom of expression.”

Elsewhere in the world, the U.S. Department of Justice is siding with a group of Asian-Americans suing Harvard University over affirmative-action policies that they claim discriminate against them.

Politico is reporting that Hungarian Prime Minister Viktor Orbán will travel to Strasbourg on September 11 to attend a European Parliament debate next month ahead of a crucial vote on findings that Hungary has systemic problems with the rule of law on whether to move. Following that debate, lawmakers will vote on a report that recommends triggering Article 7 of the Lisbon Treaty, which could result in Hungary temporarily losing its EU Council voting rights.

Finally, the deal of the week goes to Coca-Cola, which is planning to buy British coffee chain Costa for US $5.1 billion in cash.

 

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