The Power of Perspectives

The Canadian Bar Association
Legal marketplace

Has liberalization of the legal industry in England changed anything?

By Yves Faguy April 3, 2018 3 April 2018

Has liberalization of the legal industry in England changed anything?

Mark A. Cohen makes a case for splitting regulation of the practice of law (training, licensing, ethical responsibilities, and client obligations) away from the business of law (to promote competition and innovation):

The core tenets of legal practice—confidentiality, conflict avoidance, etc.—have changed little over time, even as new challenges arise. Lawyers are well-suited to regulate themselves.  But the business of delivering legal services in an increasingly corporatized, digitized, inter-connected, complex world requires outside regulators whose focus is on consumers, not lawyers. Regulation should encourage new delivery models, investment capital, and innovation that promote access and elevate legal buyer satisfaction. The legal industry has the resources to better serve consumers and society. Bifurcation of legal regulation will advance these important objectives and preserve the fundamental characteristics of legal practice.

He holds up the model in England and Wales as an example where a Solicitors Regulatory Authority oversees the business side of the industry, while practice matters are left to The Law Society.  This split happened when the Legal Services Act, 2007 fully came into force five years ago and introduced alternative business structures (ABS), which allows for non-lawyers in professional, management or ownership roles.

But in a recent post Malcolm Mercer takes a look at how the market for legal services in England has evolved since its liberalization five years ago, and proposes that Canadian law societies take more of a wait-and-see approach to re-regulation.

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CBA influence

Income sprinkling, income splitting, and passive investments

By Kim Covert April 3, 2018 3 April 2018

 

No one is ever going to suggest that tax law is simple enough for average individuals to wrap their heads around. But the complexities in proposed changes to the “tax on split income” provisions of the Income Tax Act will go “beyond the capability of business owners and generalist advisors to comprehend and apply,” says a submission from the Joint Committee on Taxation of the Canadian Bar Association and Chartered Professional Accountants of Canada.

The Committee commends the Finance Department for the improvements made to the draft TOSI legislation introduced in July, 2017, but note that serious technical and practical issues remain.

Before enumerating a number of specific technical concerns with the proposals, the Committee noted a couple of areas where over-reach and complexity ran the risk of causing unintended consequences.

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Criminal justice

Reforms to Canada's criminal justice system proposed

By Justin Ling March 29, 2018 29 March 2018

Reforms to Canada's criminal justice system proposed

Justice Minister Jody Wilson-Raybould has introduced new measures to streamline the criminal justice system and to finally follow through on pledges to clean up the Criminal Code and reduce court delays. Reactions, however, have already been mixed.

The centrepiece of the new legislation, Bill C-75, which is sure to spark a significant amount of debate among defence lawyers in Canada, is a set of a new rules on when preliminary inquiries can be used.

The changes would make it so that only an accused facing a crime which could carry a penalty of life in prison would have access to a preliminary inquiry. Even then, under the new rules, the inquiry judge would have the power to limit issues and witnesses introduced.

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Media

Has the internet made publication bans obsolete?

By Brooke MacDonald March 29, 2018 29 March 2018

Has the internet made publication bans obsolete?

Two people were killed. Both were under the age of 18. The CBC wrote two articles on the incident, naming the victims. The Crown applied for and received a publication ban on the victims’ names, because they were minors. Should the CBC be required to take down the articles or redact the names of the victims?

According to the Supreme Court of Canada, the answer is no. In the recent decision of R v Canadian Broadcasting Corp., which clarified the legal test for issuing a mandatory interlocutory injunction, Canada’s top court upheld the lower court decision which rejected a broad interpretation of “publish” in the Criminal Code so as to encompass web-based articles posted prior to the ban. 

While the full merits of whether the articles violated the ban were not decided (for the purpose of this proceeding the chambers judge needed only assess the prima facie case for criminal contempt of court), this case raises a number of issues about the way online reporting and sharing of information fits within our current legal system.

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CBA influence

CBA has serious concerns with proposed impaired driving bill

By Kim Covert March 28, 2018 28 March 2018

 

The CBA appeared before the Senate Committee on Legal and Constitutional Affairs in late February to reiterate its concerns with a bill that it says will introduce uncertainty into the criminal law and carry serious repercussions for permanent residents and foreign nationals.

The CBA supports the overall aim of the bill, which contains amendments to better address both drug and alcohol impaired driving, but urges “careful consideration of our concerns and recommendations about Bill C-46.” 

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CBA influence

Bill C-49 sends mixed messages to foreign investors

By Kim Covert March 27, 2018 27 March 2018

 

You can attract flies with honey, but if you stand there swatting at them they might not stick around.

That’s essentially the message from the CBA’s Air and Space Law Section in response to Bill C-49, which would increase foreign ownership limits of air carriers.

As it stands, in order to qualify as “Canadian” and operate a domestic or international air service, foreign ownership and de facto control of the corporation is limited to 25 per cent of the voting interest.

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Corporate counsel

Conquering challenging clients

By Jim Middlemiss March 27, 2018 27 March 2018

Conquering challenging clients

Every in-house counsel has a war story to tell about a challenging client they had to manage at some point in their career.

Take Maura Lendon, Vice-President, Chief General Counsel and Corporate Secretary at Primero Mining Corp. in Toronto (pictured above). At one public company she worked at, it was her call as to when the blackout period was in place, which prohibits insiders from trading shares in a company. A senior executive who wanted to buy shares took issue with her position and challenged her legal advice. She had to explain why the blackout period was in play. “You are the guardian of the integrity, ethics and legal compliance of the organization and it’s important not to be shy where those issues are at stake,” she says. She stood steadfast, yet he persisted and the debate continued.

Finally, she made it clear to him that the record would reflect her advice, and if there was an inquiry, that’s the documentation the securities regulator would unearth. He stood down. “Sometimes it’s a matter of you can’t control what someone does, but you can set up an environment that makes them think twice about going rogue,” she explains.

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Family law

How to address cryptocurrencies during a divorce

By Garrett Horvath and Liam Cummings March 27, 2018 27 March 2018

How to address cryptocurrencies during a divorce

 

Bitcoin and other cryptocurrencies are a hot ticket right now. Originally a way for underground anonymous transactions, digital currencies have picked up steam after investors and speculators found they could double their money quickly (or lose it just as fast). The most well-known cryptocurrency, Bitcoin, peaked at over $24,000 CAD in December and is currently sitting at roughly $ 10,400.

Where Bitcoin is headed is anyone’s guess, but for now at least there is clearly value in it and other digital currencies. And separating couples have taken notice, which is why divorce lawyers need to get up to speed on what  to do when their client or the opposing party has purchased cryptocurrency during the relationship.

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Legal innovation

Trust technology: Rethinking smart contracts for the future

By Ann Macaulay March 26, 2018 26 March 2018

Trust technology: Rethinking smart contracts for the future

 

Blockchain purists imagine a world that eventually has no banks or insurers as we currently know them, one in which lawyers operate in a different way, says Usman Sheikh of Gowling WLG in Toronto.

The disruptive potential of blockchain “will change the fabric of our society,” and create significant upheaval in the legal profession, says Sheikh, describing the potential impact on lawyers as revolutionary.

Blockchain technology is “one of the most disruptive, impactful technologies to have been invented, some say since the early days of the Internet,” says Sheikh, who heads his firm’s Blockchain & Smart Contracts Group, although how things will evolve remains uncertain.

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The profession

After IGGillis Holdings: Protecting privilege when giving common legal advice

By Mark Tonkovich and Stephanie Dewey March 26, 2018 26 March 2018

After IGGillis Holdings: Protecting privilege when giving common legal advice

 

The Federal Court of Appeal’s recent decision in IGGillis Holdings brings comfort and certainty to transactional and advisory lawyers working collaboratively in today's complex legal environment.  While the case arose in the context of a tax audit, its teachings on privilege should reach all areas of practice.

IGGillis Holdings soundly affirms that sharing legal advice with other transacting parties, or working together with other parties' lawyers to develop that legal advice, will not waive solicitor-client privilege where the collaboration is done in pursuit of a transactional common interest.  As explained in CBA National last fall, the CBA intervened in this closely-watched appeal to assist in fully canvassing the underlying issues and the common practices of the Canadian bar.

The CBA argued in its factum that "[t]he more significant and complicated a legal issue, the more likely that clients will engage teams of specialized lawyers across multiple firms to jointly provide legal advice to them."  The practice of active collaboration between different parties and their respective lawyers was thrown into serious doubt by the Federal Court's earlier ruling, which held that the common interest exception to the waiver of privilege rule did not apply in the transactional or advisory (non-litigation) context. 

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Criminal law

The SCC interprets influence peddling broadly

By Yves Faguy March 23, 2018 23 March 2018

The SCC interprets influence peddling broadly

The Supreme Court dismissed Bruce Carson’s appeal, affirming his guilt on influence peddling charges in connection with his efforts to help a company sell water treatment systems to First Nations.  In an 8-1 ruling (Justice Suzanne Côté is the one dissenter), the top court noted that the former aide to then Prime Minister Stephen Harper admitted that he “was a person who had influence with the Government of Canada at the time…” The Criminal Code makes it a crime to sell influence “in connection with any matter of business relating to the government.” The Court wrote:

Simply showing that the accused accepted a benefit in exchange for promising to influence government does not suffice to make out the offence. Nevertheless, the phrase “any matter of business relating to the government” must be interpreted broadly. Reading the words of this phrase in their entire context and in their grammatical and ordinary sense, harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament, a matter of business relates to the government if it depends on government action or could be facilitated by the government, given its mandate. Matters of business relating to the government include publicly funded commercial transactions for which the government could impose or amend terms and conditions that would favour one vendor over others. The phrase “any matter of business relating to the government” must not be restricted to matters of business that can be facilitated by government under its existing operational structure. The offence captures promises to exercise influence to change or expand government programs.

The trial judge had acquitted Carson on account of the fact that it was up to the First Nations – not the government – to decide on whether to make the purchase.

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Privacy

Cambridge Analytica fallout: How will GDPR be enforced?

By Yves Faguy March 23, 2018 23 March 2018

Cambridge Analytica fallout: How will GDPR be enforced?

Jessica Davies warns that in the aftermath of Cambridge Analytica’s harvesting scandal, businesses are going to have get wise quickly about making sure they will be compliant with the EU’s General Data Protection Regulation (GDPR) – coming into force in May.

The question on a lot of minds, up until now, has been how 28 different countries will enforce the regulation, which has extra-territorial reach.

Jess Geary also digs into the issue:

Post-GDPR, the data is back in the control of the consumer. As of May 25th, 2018, consumers will be able to request what data is being held about them and they will have the right to be forgotten and, more importantly, get greater clarity on transparency on how their data is being used. The emphasis is now on the brands to negotiate this new opt-in world successfully – or they face a fine of €20m or 4% of global turnover.

This increasing scrutiny from consumers is only going to get worse, especially with more and more high profile data breaches (I am confident there will be more). So how do businesses and brands tackle this growing scepticism from consumers, in an age where data is becoming more powerful and valuable than ever?

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