The Power of Perspectives

The Canadian Bar Association

National Blog

Abuse of dominance guidelines need work

By Kim Covert June 4 2018 4 June 2018


    It’s not always easy to distinguish aggressive-but-pro-competitive business practices from those that are anti-competitive. That’s why the CBA’s Competition Law Section welcomes the Competition Bureau’s draft Abuse of Dominance Enforcement Guidelines as an aid to decision-making in the business community.

    That said, the Section says the guidelines could be improved to be more helpful.

    “The guidelines sometimes take an inconsistent or expansive view of existing Canadian abuse of dominance jurisprudence,” the Section says.

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    Prompt payment legislation: Focus on harmonization

    By Kim Covert May 31 2018 31 May 2018


      When the Senate passed its Bill S-224, Canada Prompt Payments Act, last fall, the CBA’s Construction and Infrastructure Law Section expressed its concern with many aspects of the bill and suggested that the government not move forward with it before doing extensive consultations with the construction industry.

      So the Section was very happy to respond to the expert review carried out by the same construction lawyers who’d done similar work for the province of Ontario, which has recently passed its new construction legislation.

      So the Section was very happy to respond to the expert review carried out by the same construction lawyers who’d done similar work for the province of Ontario, which has recently passed its new construction legislation.

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      Search engines’ raison d’être at the base of online privacy debate

      By Kim Covert May 29 2018 29 May 2018


        Are search engines engaged in commercial activity? Is it practical to require them to obtain consent before gathering personal data? Is it appropriate to ask them to decide what information needs to be removed from their indexes?

        These are just some of the thorny questions in the debate over online reputation, and the right to be forgotten. Three CBA groups – the CCCA, the Privacy and Access Law Section and the Children’s Law Committeerecently responded to the Office of the Privacy Commissioner’s Draft Position on Online Reputation and the only things the three wholeheartedly agreed on were that children must be protected online and that privacy laws, written for a different time and circumstance, need to be studied by Parliament.

        “Privacy legislation, as well as the Canadian Charter of Rights and Freedoms, are interpreted today in a different context than when they were originally drafted,” the Sections say. “As the internet broadly, and search engines specifically, are significant sources of information for Canadians, online reputation and disclosure of personal information online are important issues for regulators, policy makers and legislatures to examine.”

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        Voter intelligence is big business unfettered by regulation

        By Kim Covert May 25 2018 25 May 2018


          The recent scandal surrounding information-gathering by Cambridge Analytics and Facebook opened a lot of eyes to the amount of data that is out there to be collected, and the uses to which it can be put.

          Usually when we think about Big Data we think of it in commercial terms – companies finding ways to use personal information about consumers in order to enhance their bottom lines. But Big Data’s not just for Big Business any more –political parties are also hoovering up Canadians’ data, and they’re doing it with relative abandon, compared with the restrictions placed on the business world.

          “Political parties are not subject to privacy laws,” the CBA’s Privacy and Access Law Section points out in a submission regarding Bill C-50, An Act to Amend the Canada Elections Act, noting that laws meant to protect Canadians privacy in almost all other aspects of their lives, including the Personal Information Protection and Electronic Documents Act, the Privacy Act, or Canada’s Anti-Spam Law, do not apply to political parties.

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          Impact assessments: Bill C-69 needs clarity and guidance to achieve stated goals

          By Kim Covert May 25 2018 25 May 2018


            The federal government set out a host of worthy goals in the preamble for Bill C-69,An Act to enact the Impact Assessment Act and the Canadian Energy Regulator Act, to amend the Navigation Protection Act and to make consequential amendments to other Acts, which had its first reading in the House in February.

            The government aims to implement an assessment and regulatory system that:

            • people can trust, that will protect the environment and the health and safety of Canadians
            • that allows decisions to be predictable and timely, therefore providing the stability business needs
            • reflects the government’s commitment to achieving reconciliation with First Nations
            • uses transparent processes built on early engagement and inclusive participation
            • considers both scientific and traditional knowledge
            • assesses the broader impact of policies, programs and projects.

            These are all goals the CBA can get behind, say the Aboriginal Law Section and the National Environmental, Energy and Resources Law Section in a submission centred on the proposed Impact Assessment Act.

            The devil, as always, is in the details.

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            Draft M&A guide takes positions inconsistent with jurisprudence

            By Kim Covert May 23 2018 23 May 2018


              Google “mergers” and “efficiencies” and the helpful suggestion for a search that comes up is “mergers create efficiencies.” It’s apparently so true that even Google knows it.

              In March, the Competition Bureau released a draft document, A practical guide to efficiencies analysis in merger reviews, sharing its perspective and experience on trade-off analysis, and when the Commissioner may decide not to challenge a merger due to efficiency gains.

              The CBA’s Competition Law Section commends the Bureau on its commitment to transparency and public consultation, but has a number of concerns with the document, recommending that language in a number of areas be clarified or reconsidered.

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              Bill C-66 not a complete fix for historically unjust convictions

              By Kim Covert May 17 2018 17 May 2018


                We’ve come a long way, baby. Time passes and society evolves and so do its attitudes to certain behaviour. Some laws are slower to change than others, but once something becomes more socially accepted, the laws regulating that behaviour gradually fall off the books.

                The convictions under those laws, however, are another matter.

                Many members of the LGBTQ2S community still have a criminal record for activities that have not been illegal for some time. It is these people whom Bill C-66, the Expungement of Historically Unjust Convictions Act, is supposed to help.

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                Consent guidelines: Reviewing the revisions

                By Kim Covert May 9 2018 9 May 2018


                  In a letter to the Office of the Privacy Commissioner, the CBA’s Privacy and Access Law Section and CCCA note that many of the problems it identified last year in the OPC’s draft guidelines for obtaining meaningful online consent were still present after those guidelines were revised.

                  The Sections reiterate four recommendations from the earlier submission.

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                  Proceeds of Crime Act: Leave privilege out of it

                  By Kim Covert April 26 2018 26 April 2018


                    Money laundering and terrorist financing is on the minds of both policy-makers and regulators this spring as the federal government carries out a statutory review of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, and the Federation of Law Societies of Canada proposes amendments to its Model Rules dealing with the subject.

                    The CBA has a long history of advocacy on the issue: it was involved in the development of the first proceeds of crime legislation in Canada and has commented since on proposed legislative and regulatory changes, always asserting that the laws must protect solicitor-client privilege. The CBA was an intervenor in Canada (Attorney General) v Federation of Law Societies of Canada, in which the Supreme Court confirmed that the proceeds of crime legislation cannot impose duties on lawyers that undermine their duty of commitment to their clients’ causes.

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                    Amendments to Bill C-45 good, but more needed

                    By Kim Covert April 24 2018 24 April 2018


                      Bill C-45, the Cannabis Act, set to become law this summer, is making its slow way through the approvals process, arriving in mid-April at the Senate Committee on Legal and Constitutional Affairs.

                      The CBA made a submission on the bill earlier in the process. For this Senate committee hearing the Criminal Justice Section sent a letter acknowledging that we generally support amendments made to the bill in the House, but emphasizing that the CBA still has serious concerns.

                      Amendments to the bill since our submission last fall include removing the height-restriction for home-grown plants, setting $200 as the maximum fine and specifying that probation is not to be imposed for ticketing offences, and adding certain immunities from prosecution for possession offences in the context of medical emergencies.

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                      Manitoba pension review consultation

                      By Kim Covert April 12 2018 12 April 2018


                        CBA’s National Pensions and Benefits Law Section took part in a recent consultation on the Pension Commission of Manitoba’s review of The Pension Benefits Act, responding to questions contained in a consultation paper issued in January.

                        In its submission to the commission, the Section noted that CBA members are not of one mind on the merits of defined-benefit pension plans vs. defined contribution, or shared risk plans, so it could not unequivocally recommend one or the other.

                        The consultation paper covered questions such as whether a regulatory framework should be developed for defined-benefit or shared-risk plan designs; buying annuities; entitlement to ancillary benefits; locking-in provisions; and whether the new plan should be limited to unionized workplaces.

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                        Eligible dependents: Share the support, share the tax credit

                        By Kim Covert April 9 2018 9 April 2018


                          It’s time for tax law to join the 21st century when it comes to family breakdowns.

                          Gone are the days when separation and divorce automatically meant children stayed with one parent and might see the other on the weekends. These days more and more families choose to share custody, yet the CRA doesn’t see that as an option when it comes to applying the tax laws.

                          When a child lives mostly with one parent, the Family Law Section says in a submission to the Finance Minister, Federal Child Support Guidelines require only one parent to pay child support, and only the recipient of the support may claim the eligible dependent tax credit for the child.

                          When the child lives with both parents, the guidelines require both parents to pay support. For convenience, most families adopt an informal approach, where the higher-earning parent subtracts the lower amount of support payable from the higher amount, and pays only the difference, instead of both parents having to exchange the exact amounts of support payable.

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