The Power of Perspectives

The Canadian Bar Association

Yves Faguy

Competition law

Proposed changes risk undermining Competition Bureau's immunity program

By Yves Faguy January 24, 2018 24 January 2018

Proposed changes risk undermining Competition Bureau's immunity program

The CBA is making the case that the Competition Bureau's Immunity Program is not in need of an overhaul and proposed changes undermine the incentives on applicants to self-report – a key tool for tool for enforcing the criminal provisions of the Competition Act.  From its submission letter released yesterday, and signed by National Competition Law section Chair Anita Banicevic:

A fundamental premise of the Program is that a cooperating party should not be made “worse off” by self-reporting to the Bureau. However, the proposed revisions impose new obligations on immunity applicants and introduce significant uncertainty in the timelines for cooperation. In addition, the proposed revisions create exposure to new risks for the applicant, by abandoning the existing “paperless process” and by creating recordings of privileged proffer exchanges and witness interviews that may be the subject of future production and discovery demands. The proposed revisions also substantially extend the timeline for when an applicant could receive a binding immunity agreement from the PPSC.

With these new burdens and risks, the CBA Section believes that an applicant could be placed at a distinct disadvantage relative to non-cooperating parties, particularly in responding to anticipated civil litigation. Given the misalignment that the proposed changes would create with other international immunity or leniency programs, an applicant may reasonably determine that it is in its best interests to self-report its conduct in the United States and Europe, for example, but not in Canada.

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Corrections

Prolonged solitary confinement unconstitutional

By Yves Faguy January 18, 2018 18 January 2018

Prolonged solitary confinement unconstitutional

 

The B.C. Supreme Court has ruled that Canada’s use of prolonged or indefinite solitary confinement in federal prisons is unconstitutional.

Money quote

"There is an emerging consensus in international law that under certain circumstances solitary confinement can cross the threshold from a legitimate practice into cruel, inhuman or degrading treatment (“CIDT”), even torture."

The B.C. Supreme Court goes on to mention UN bodies who have declared that prolonged solitary confinement mounts to conduct prohibited by the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the International Covenant on Civil and Political Rights.

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Legal marketplace

Law firm profitability is not what it seems

By Yves Faguy January 12, 2018 12 January 2018

Law firm profitability is not what it seems

 

The 2018 edition of the annual Georgetown/Thomson Reuters Report on the State of the Legal Market paints a portrait of law firm financial performance very much following the trend of years past, characterized by sluggish growth in demand, a decline in productivity, a modest rise in rates, decline in realization rates and a modest rise in expenses (on account of salary increases at the associate level).

First a quick caveat. The report is squarely focused on U.S firms, mid-size and bigger, but the patterns should be of interest to firms in the Canadian marketplace.

And the takeaway message from this report is that law firms are far less profitable than they used to be before the financial crisis, and that any lingering notion that “law firms are among the world’s more profitable businesses” is pure fantasy:

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Trade

Canada's WTO broadside: What's the strategy ?

By Yves Faguy January 11, 2018 11 January 2018

Canada's WTO broadside: What's the strategy ?

 

Anticipating an imminent U.S. retreat from NAFTA, the Canadian government has decided to go on the offensive in managing its trade relations with our Southern neighbor.  By filing a WTO complaint over U.S. use of punitive duties, and charging that the U.S. is in violation of international trade rules, not just in its dealings with us but other countries such as China, “Canada is taking a run against the entire U.S. trade regime,” says John Boscariol, a trade lawyer with McCarthy Tétrault.

“It’s interesting that Canada has chosen to file such a broad complaint,” Boscariol told CBA National. “In the past Canada has filed one-off cases in relation to a specific product or dispute such as softwood lumber. But this is very different in that it is really more of a systemic challenge to [U.S.] measures.”

Why now?

Given recent musings that Ottawa expects the Trump administration is about to pull the plug on NAFTA, there is speculation that Canada is either trying to gain leverage ahead of the next round of negotiations, or signaling that, with no free trade agreement in place, it intends to use the WTO to fight its trade battles.

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The climate

A major setback for climate change litigation

By Yves Faguy January 8, 2018 8 January 2018

A major setback for climate change litigation

 

An Oslo court ruled last week that Norway's government can allow further oil exploration in the Arctic. The lawsuit, brought by Greenpeace and the Nature and Youth Group argued that Norway’s decision to award new drilling licenses to oil companies in 2016, only weeks prior to ratifying the Paris Climate Agreement, was in violation of the country’s Constitution which includes a guarantee to a healthy environment.

Why it matters

The ruling is major defeat for environmental groups who saw the lawsuit as a test case for the “keep-it-in-the-ground movement” focused on ending the extraction of remaining fossil fuels in the world to tackle climate change.  There has been a growing international trend towards more litigation around climate change, but the courts are still reluctant to step in to judge the merit of government policies.  Bloomberg quotes the Oslo court ruling:

“Some issues that the environmental organizations have raised fall outside what was tried by the court,” according to the ruling. “Whether Norway is doing enough for the environment and climate, and if it was sensible to open fields so far north and east” are questions “better assessed through political processes,” the court said.

The court found that Norway is responsible only for “greenhouse gas emissions within its borders, not those causes by burning exported oil and gas.” Adding insult to injury, the Oslo court ordered the two environmental groups to pay the government’s legal costs. There is no word yet on whether they will appeal.

 

 

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