The Power of Perspectives

The Canadian Bar Association

Yves Faguy

The Supreme Court

Reactions to the Comeau "free the beer" ruling

By Yves Faguy April 25, 2018 25 April 2018

Reactions to the Comeau "free the beer" ruling

Predictably, the Supreme Court’s ruling in Comeau has been greeted with a good measure of disappointment. Emmett Macfarlane was among the first to set the tone:

It’s the pitch-perfect case for why judicial deference to a legislature can still be inappropriately political, even activist. And as a result of this politicized timidity, we get a resounding absurdity. As economist Mike Moffatt tweeted, “With today’s SCC decision, there are fewer trade barriers for Ontario companies to sell to Michigan than to Quebec. This is a problem.”

It’s an absurdity of constitutional interpretation that the Court routinely allows in the context of federalism but would never countenance in other areas of law. But mostly, it’s just absurd.

Asher Honickman calls the unanimous ruling “bizarre:”

Read More
The Pitch 2018

Getting to know The Pitch finalists: Digitory Legal

By Yves Faguy April 24, 2018 24 April 2018


As part of a weekly series leading up to The Pitch 2018, the legal innovation startup competition put on by the Canadian Bar Association and Law Made in partnership with LexisNexis, we’re publishing interviews with the five selected finalists to get to know them better.  This week’s Q&A is with Catherine Krow (featured in the above video), CEO and founder of Digitory Legal, a cost analytics and management platform for law firms and corporate legal departments.


CBA National: What are the origins of Digitory Legal?

Catherine Krow : Practising as a litigation lawyer, I realized that this profession — this industry — is evolving. And to succeed in this market I really believed that law firms would need to start examining how they do things, and adopt new technology and really make some changes to better meet the business needs of their clients. I found this exciting and saw a chance to do something new and different and focus less on the practice of law and more on the business of law.

N: Explain what Digitory Legal does.

Read More
Legal marketplace

Another English firm goes public

By Yves Faguy April 23, 2018 23 April 2018

Another English firm goes public

Rosenblatt Solicitors has just announced its intentions to go public. It would be the fourth English law firm to do so since the liberalization of the market for legal services in England and Wales five years ago. The other three are Gately, Keystone and Gordon Dadds.  

According to Rosenblatt chief executive Nicola Foulston, the principal reason is to grow its dispute resolution practice in London and  “to take advantage of the disruption in the UK legal marketplace.”

Matt Byrne at The Lawyer notes that the reasons for going public can vary from one firm to the next, whether it is to attract a different kind of talent or fund growth through acquisitions. And though firms have been shy about making jumping in the fray, we can expect to see more law firm IPOs in the coming months:

Inevitably, there will be speculation about which firm will next go public. Personal injury giant Irwin Mitchell has long been seen as a candidate, while brand-savvy Mishcon de Reya is said in some circles to have at least considered an IPO last year. Highly profitable litigation boutique Stewarts could also make sense.

What is notable with the trio of deals so far in the UK is that the firms have different reasons for going public, highlighting the fact that each is a different type of firm. And while Gateley, which floated in 2015, is at the more traditional end of the market (IPO notwithstanding), the latter two deals underline the extent to which the market is reshaping. Indeed, it is the shape of the new breed of firms that might offer clues as to where the next IPO will come from.

Read More

Ratifying new NAFTA may not be be so easy

By Yves Faguy April 20, 2018 20 April 2018

Ratifying new NAFTA may not be be so easy

Progress is being made, reportedly, on the renegotiation of NAFTA, as trade representatives appear to be closing in on a deal on new auto rules of origin.

But here's something to worry about. Anna Palmer at Politico reports on growing doubts in Washington about Congress’ ability to ratify a new NAFTA deal in an midterm election year:

The Trump administration has done absolutely nothing to prepare the Hill for a bruising trade vote in the middle of an election year, according to key aides involved. GOP leadership is well aware of the void. When the Trans-Pacific Partnership cleared the Capitol, it benefited from a multi-year, multi-million dollar lobbying campaign.

One possible tactic apparently under consideration is to apply pressure by withdrawing from the current  agreement before a new deal is finalized:

U.S. Trade Representative Robert Lighthizer is said to have advocated for such an approach, according to current and former administration officials.

The strategy, which has been under consideration for months, figures that Congress may not act on the new agreement, preferring the status quo instead.


“As someone who counts votes that would not be a totally shocking scenario,” said one source who has advised Lighthizer on NAFTA. “If you actually want to get the vote done and you want to pass the damn agreement then you need to create the scenario of either nothing or something different.”

What could possibly go wrong?

Read More
Interprovincial trade

Supreme Court upholds provincial liquor law

By Yves Faguy April 19, 2018 19 April 2018

Supreme Court upholds provincial liquor law

Canada’s Constitution does not guarantee interprovincial free trade, at least not how the term is broadly understood. That’s the key takeaway from the Supreme Court of Canada’s unanimous decision today in R. v. Comeau – commonly referred to as the free-the-beer case.

The case involved a constitutional challenge brought by Gerard Comeau, who had been arrested and fined for bringing beer he purchased in Quebec into New Brunswick, in violation of limits imposed under section 134 of that province’s Liquor Control Act. The trial judge declared the contested provision unconstitutional. In his view that amounted to a trade barrier in violation of section 121 of the Constitution Act, 1867, which stipulates that goods must “be admitted free into each of the other provinces”. The Court of Appeal of New Brunswick dismissed the application for leave to appeal, before the Supreme Court granted leave last year.

How the court decided

“Reading s. 121 to require full economic integration would significantly undermine the shape of Canadian federalism, which is built upon regional diversity within a single nation,” the Court wrote.

Read More