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The Canadian Bar Association
Legal technology

Is arbitration the best way to resolve blockchain-based disputes?

By Yves Faguy March 6, 2018 6 March 2018

Is arbitration the best way to resolve blockchain-based disputes?

 

Will smart contracts really replace traditional legal agreements and courts with code?

Charlie Morgan discusses blockchain’s application to contract formation and execution, and warns that the challenge is in ensuring that rights and obligations contained in smart contracts have a sound legal basis and can be enforced in the real world.  Indeed, the potential for disputes remains very real.

Morgan then explores whether arbitration will become the forum of choice for resolving blockchain-based disputes:

Arbitration is a non-national and neutral dispute resolution forum which enables parties to nominate a tribunal of industry or technical specialists to efficiently and effectively resolve the different types of disputes that may arise from their relationship (which, as mentioned above, may include real world as well as digital world disputes, in each case ranging from a simple contract law claim to claims of a highly technical and complex nature).

The relative ease of cross-border enforcement of awards under the New York Convention also gives arbitration a huge advantage in the context of blockchain disputes, given the transnational nature of this technology and of the players involved in blockchain transactions.

But arbitration also offers a further material benefit in this context, compared to court litigation. Indeed, the inherent flexibility of the arbitral process (its procedure being tailored in material respects by the parties’ agreement) enables efficient conflict management approaches to be developed and for the dispute resolution process itself to harness the benefits of blockchain technology. This means that arbitration has the potential to keep pace with a new breed of disputes.

 

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Litigation

Designing the right clawback agreement for privileged information

By Alexander Gay March 5, 2018 5 March 2018

Designing the right clawback agreement for privileged information

 

Think of it as “produce first and verify later”. 

With the growth of e-discovery use, counsel are relying more heavily on clawback agreements to mitigate against the inadvertent production of privileged documents. Here a few essential elements that should be considered by counsel when drafting such an agreement.

A clawback agreement should contain a provision that confirms that the inadvertent production of a privileged document does not constitute a waiver of privilege.  That may seem obvious, but the obligation that a party be made to return a privileged document is separate and apart from the waiver that may occur with from its production in the first place. 

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Graphic of the day

SCC rulings: Split v. Unanimous

By CBA/ABC National March 1, 2018 1 March 2018

SCC rulings: Split v. Unanimous

 

You can see other graphs here.

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Environmental law

How $1 billion can help decide what is good for Canada’s environment

By Supriya Tandan February 28, 2018 28 February 2018

How $1 billion can help decide what is good for Canada’s environment

 

Ministers Bill Morneau and Catherine McKenna are both attempting to address issues of equality and, yesterday, Budget 2018 outlined how a $1 billion dollar investment will be used to support the Bill C-69, which would replace the current Canadian Environmental Assessment Act.

With Bill C-69, McKenna is hoping to change the way that Canadians weigh the merits of major projects against the impacts on, amongst other things, our environment, health and relations with Indigenous Peoples. Proponents, like the Pembina Institute have applauded the efforts while critics charge that the new Impact Assessment Act has a back-to-the-future feel. The new Act, they say, largely restores requirements that were in place before the Harper government, leaving the more ambitious goals up to political will.

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CBA influence

Principles for confidentiality in IP hearings

By Kim Covert February 28, 2018 28 February 2018

 

The CBA’s Intellectual Property Section welcomed the opportunity to comment on the Federal Court’s Draft Report on Confidentiality Orders, offering up its own proposal for a set of six principles for establishing best practices on the protection and handling of confidential information.

The Section says it supports the establishment of a series of guidelines or a Practice Direction based on these principles:

  1. Parties should try to come to an out-of-court agreement on handling information they consider to be confidential. It would be beneficial, the Section says, if the court could outline specific steps the parties need to take in order for the Federal Court to have jurisdiction to enforce the agreements.

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Budget

Budget 2018: What's in it for justice

By Justin Ling February 28, 2018 28 February 2018

Budget 2018: What's in it for justice

In the Trudeau government’s 2018 budget, the penultimate for its first mandate, the government has pledged new money for Canada’s court system, access to justice, and fighting sexual assault and harassment in the workforce.

The new funding comes in a budget that has been heavily marketed to address gender inequality and systemic failures in outcomes for Indigenous peoples. Here are some highlights.

Money for the courts: Amid longstanding concerns that Canada’s court system is underfunded to address the volume of cases it currently faces — a concern exacerbated by the 2016 Supreme Court ruling in R. v. Jordan, which set strict timelines on trial delays — this year’s budget does offer some new money to help the courts cope.

The budget allocates $75 million for the courts themselves, as well as additional $77 million to expand family courts, as well as another $13 million for access to justice programs and legal aid for immigrants and refugees, all over the next five years.

The money for the family courts will allow for 39 new judicial positions in a handful of provinces, and six new spots on the Ontario Superior Court and the Saskatchewan Court of Appeal.

Beyond that details are relatively scant about what, precisely, the government plans to do to address the strain on the courts and access to justice.

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Canada Summer Jobs

It’s not about women’s constitutional right to abortion

By Beverley Baines February 27, 2018 27 February 2018

It’s not about women’s constitutional right to abortion

 

Does the constitutionality of the Canada Summer Jobs attestation requirement depend on whether the Canadian Charter of Rights and Freedoms protects women’s right to abortion or more generally to reproductive freedom? The answer is no.

The federal Liberal government imposed the attestation requirement on not-for-profit, public-sector, and small business employers who apply for wage subsidies to hire secondary and post-secondary students for summer jobs. Liberals had received complaints about previous summer job funding going to summer camps that refused to hire LGBTQ staff and to groups that distribute graphic anti-abortion pamphlets.

The coming summer could also see complaints from students working in faith-based hospitals and long-term care homes that refuse to comply with new assisted dying laws. To protect women, LGBTQ, and differently abled students from employment discrimination, the Liberals require employers to sign an attestation requirement asserting they respect human rights, that is, that they do not seek to remove or actively undermine these rights.

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CBA influence

Cannabis Working Group comments on proposed regulations

By Kim Covert February 27, 2018 27 February 2018

 

The federal government continues to line up its ducks as its self-imposed 2018 deadline for cannabis to become legal in Canada quickly approaches.

The government released a consultation document, Proposed Approach to the Regulation of Cannabis, in November, focusing on licences, security clearances, tracking and reporting, products, packaging and labelling, medical use and health products.

The CBA Working Group on Cannabis commented on the consultation document in a recent submission, the latest in a line of submissions urging changes to the way Canada treats possession and use of marijuana dating back to 1978.

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CBA Futures

Legal futures round-up

By Yves Faguy February 26, 2018 26 February 2018

Legal futures round-up

 

Time for a quick round-up of trends and developments that highlight innovation in the legal industry.

Artificial Lawyer reports on a “litigation prediction battle heating up”, driven by insurance law firms under pressure to reduce costs and show their clients that they can leverage advanced legal tech.

PwC’s on-demand lawyering service has signed up more than 1000 contractors since its launch four months ago in the UK. It now wants to expand it into global markets, as see Asia as a promising market for growth.

Meanwhile in Canada Fasken has opened an office in Surrey , B.C., “home to a growing startup, high-tech and emerging companies market, all of which play into Fasken’s strengths.” It achieved this by bringing in in a team of lawyers from Roxwal Lawyers.  Managing partner Peter Feldberg is quoted as saying, ““As a smaller office, it also gives us a place to pilot new technologies and new ways of doing things before rolling them out on a larger scale.”

 

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Litigation

Suing for malicious prosecution in civil matters

By Jasmine Lothian February 26, 2018 26 February 2018

Suing for malicious prosecution in civil matters

 

The tort of malicious prosecution as a remedy for defendants who have been damaged by unjustifiable criminal proceedings is well established in law. In various common law jurisdictions — namely in the United Kingdom and the United States — it has been gradually expanded to include unjustifiable or frivolous civil suits. Canada, however, has yet to officially recognize this new tort as there are lingering concerns about balancing competing public policy interests between having plaintiffs bring their complaints before courts without fear of recrimination and protecting citizens from the harassment of meritless litigation. However, it’s time that Canadian courts reconsider their position.

The UK

In a landmark 2016 decision, Willers v Joyce, the U.K. Supreme Court confirmed in 2016 that a person can sue another for malicious prosecution in civil proceedings. Lord Toulson, delivering the lead judgment, stated “it seems instinctively unjust for a person to suffer injury as a result of the malicious prosecution of legal proceedings for which there is no reasonable ground, and yet not be entitled to compensation for the injury intentionally caused by the person responsible for instigating it.

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Labelling pro-life views as ‘anti-Charter’ is wrong – and sets a dangerous precedent.

By Derek Ross and Sarah Mix-Ross February 23, 2018 23 February 2018

Labelling pro-life views as ‘anti-Charter’ is wrong – and sets a dangerous precedent.

 

The national controversy surrounding the Canada Summer Jobs program has avalanched far beyond a mere “kerfuffle”. The government’s attempts at clarification have only generated further debate, but one thing has been made clear: the program is designed to exclude groups expressing views, especially on abortion, with which the government disagrees.

This may be unsurprising, even uncontroversial for some – what government doesn’t favour projects furthering its vision of the public good? Except here, the government won’t admit that it is motivated by mere disagreement (presumably this would concede too much credibility to targeted groups, and expose a partisan motivation for the new requirements). Instead, the government suggests that exclusion of pro-life groups from its public programs (including the newly announced Canada Service Corps) is mandated by the Charter because these groups have the “specific and explicit” purpose of removing human rights.

This is a misappropriation of rights language; it is both disingenuous and dangerous.

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CBA influence

Strict timetables are good, a little leeway is better

By Kim Covert February 23, 2018 23 February 2018

 

Setting strict schedules is all well and good, but a little flexibility is important when all doesn’t go according to plan.

That was one of the messages from the CBA’s Intellectual Property Section in its response to the Federal Court’s proposed Patented Medicines (Notice of Compliance) timetable checklist. The Section would like to retain the document’s structure and content – with one broad proviso: it needs flexibility.

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