The Power of Perspectives

The Canadian Bar Association
The CBA and the #MeToo campaign

The #MeToo campaign: What are the next steps?

By Samantha de Wit February 12, 2018 12 February 2018

The #MeToo campaign: What are the next steps?

The year 2017 will likely be known to many as the year of #MeToo, a social media campaign intended to bring personal stories of harassment and assault to the foreground of public dialogue.

The campaign began with a single sentence from Alyssa Milano, an American actress, “if all the women who have been sexually harassed or assaulted wrote ‘Me Too’ as a status, we might give people a sense of the magnitude of the problem.” From there it grew into a worldwide movement, with victims of all genders taking a stand against sexual harassment and assault.

The campaign went on to see a number of powerful men “outed” for their inappropriate behavior towards the women, and in some cases men, around them, predominately in workplace circumstances in the entertainment industry, music industry, sciences, academia and politics. 

In America, the predominant focus of the campaign was on the powerful men in the entertainment industry and politics. Time Magazine named “The Silence Breakers”, those that brought their stories of sexual harassment and abuse in America to the forefront, as Time Magazine’s Person of the Year for 2017.

In the United Kingdom, the predominant focus of the #MeToo campaign has been in politics, with “outing” of various political figures. This included stories of asking an assistant to buy sex toys and using sexual slurs towards her, to allegations of pornographic material on work computers.

In Canada, we saw our own version of the #MeToo campaign.

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Cross-border

New U.S. border directive further undermines solicitor-client privilege

By Jacob Marchel February 8, 2018 8 February 2018

New U.S. border directive further undermines solicitor-client privilege

Better assurances and protections are needed for Canadian lawyers crossing the Canada-U.S. border.

Last month U.S. Customs and Border Protection issued a new directive for border searches of electronic devices. It outlines the extent to which U.S. CBP agents can inspect the phones, laptops, etc. of travellers crossing the border. The U.S. Department of Homeland Security justified the measures as necessary to combat crimes like terrorism, human smuggling, and child pornography.

More than just an inconvenience, the directive creates a serious problem for Canada’s lawyers, as it hinders their ability to preserve solicitor-client privilege.

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Legal marketplace

Alternative legal services: A catch-22 for law firms

By Yves Faguy February 7, 2018 7 February 2018

Alternative legal services: A catch-22 for law firms

The recent Thomson Reuters 2017 Alternative Legal Service Study reports that alternative legal services providers (ALSPs) have grown into a $US 8.4 billion global industry:

The largest component of the market consists of independent LPOs and e-discovery and document review service providers, at $6.2 billion. The Big 4’s legal services units and contract lawyer and staffing services have another $900 million in revenue each. Captive LPOs and Managed Legal Services are smaller segments in terms of revenue.

By comparison, the total of all US law firm revenues is about $275 billion, and we estimate total global legal spending to be around $700 billion. ALSPs have clearly not swamped the incumbent players. But at $8.4 billion and growing, ALSPs represent one of the most dynamic segments of the legal services industry and they are likely to continue to play a role as competitors and disruptors for years to come.

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Arbitration

The consequences of ignoring costs submissions in arbitration

By Alexander Gay February 6, 2018 6 February 2018

The consequences of ignoring costs submissions in arbitration

 

How are costs to be handled by an arbitral tribunal?  Legislation in Ontario, as well as in most other Canadian jurisdictions, offers little guidance. After a number of attempts, the international arbitration community has also tried and failed to articulate clear guidelines for arbitrators. 

That’s in part because arbitral tribunals will typically defer to domestic law in making their assessments.  But different jurisdictions have different approaches to awarding costs.  And in Canada, we have few decided cases on the issue. 

There is, however, a new case out of the United Kingdom that speaks to the risks associated with failing to adequately deal with costs in arbitration. It could have some application here in Canada.

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The Supreme Court

The new Chief Justice on not taking our judicial institutions for granted

By Yves Faguy February 5, 2018 5 February 2018

The new Chief Justice on not taking our judicial institutions for granted

On the occasion of his official welcome ceremony, Chief Justice Richard Wagner remarked how, in today’s media environment, there are far fewer reporters assigned to cover the Supreme Court of Canada as their primary beat.

That reality, he says, presents challenges to his court in communicating with Canadians, particularly at a time marked by the explosion of social media, and a growing distrust in institutions.

The Chief Justice has been building up to the theme. Last week speaking at the University of Western Ontario's faculty of law, he promised greater transparency at the Supreme Court, as he announced it will publish plain language case summaries on its website and on Facebook, to help Canadians understand its rulings.

Echoing previous statements made by his predecessor, Beverley McLachlin, he has been warning against taking “our democratic assets” for granted in Canada.

Acknowledging that the Supreme Court building is “an architectural gem,” he was quick to point out that “it is no ivory tower,” and that it belongs to Canadians. "We just work here for them."

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Indigenous rights

Williams Lake: Crown breached fiduciary obligation at Confederation, top court rules

By Mark Bourrie February 2, 2018 2 February 2018

Williams Lake: Crown breached fiduciary obligation at Confederation, top court rules

The Canadian government is responsible for breaches of the obligations of pre-Confederation colonies to Indigenous peoples under federal legislation aimed at resolving land claims, the Supreme Court of Canada ruled in a close decision.

In Williams Lake v The Queen, the court also continued to use its decisions to strengthen the hand of tribunals to determine issues of fact and law, and found “reasonableness” to the standard of review of the Specific Claims Tribunal. This tribunal, made up of superior court judges, determines whether First Nations have property rights to specific piece of land.

In Williams Lake, the Williams Lake Indian Band argued at the Specific Claims Tribunal that the band had lived in a settlement on Williams Lake before the British Crown established a colony in what is now British Columbia in 1858. Legislation enacted by that colony guaranteed Indigenous people that settlers would not take their land.

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The practice

The argument for hanging out your shingle on a professional corporation

By Ann Macaulay February 2, 2018 2 February 2018

The argument for hanging out your shingle on a professional corporation

Lawyers have several options when choosing their new firm’s business structure and should explore the pros and cons of each type before selecting the one that suits their needs best.

Options when setting up a firm include practising as a sole practitioner, establishing an association by sharing costs and resources, creating a virtual law firm, partnering with one or more other lawyers with the option of creating a limited liability practice, or even employing a combination of these structures.

All of these options have their own advantages: A sole proprietorship gives a lawyer complete control over the practice and all of its income and assets. A general partnership allows for a profit-sharing arrangement, in which each partner is jointly liable for the firm’s debts and obligations. An LLP provides the same tax benefits as a general partnership but limits the partners’ individual liability. An association between lawyers provides the opportunity to work together without a partnership agreement, offering services to a larger number of clients while sharing expenses.

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Rule of law

Rule of Law index shows worrying trends amid some bright spots

By Yves Faguy January 31, 2018 31 January 2018

Rule of Law index shows worrying trends amid some bright spots

 

The US-based World Justice Project has released its 2017-2018 Rule of Law Index.

Canada’s overall score remains unchanged at 0.81, compared to 2016, ranking 9th globally (up three spots) — which is heartening.  More worrisome is that scores have fallen in 38 out of 113 countries since 2016. Among them, the Philippines dropped 18 places, and Poland dropped 3 places, in large part because attacks on the independence of the judiciary, but also deteriorations in criminal justice, fundamental rights and open government.  Overall, more countries saw their scores fall (34 per cent) than rise (29 per cent).

"We are witnessing a global deterioration in fundamental aspects of the rule of law" said William H. Neukom, WJP founder and CEO.

On the more positive side, Ghana has demonstrated progress as it now ranks first among African countries (43 globally), edging out South Africa (44). Croatia (33) made notable gains in open government and civil justice. Constraints on government power improved considerably in Argentina (46). France also saw significant improvements in several areas, including order and security, and regulatory enforcement. It ranks 18th globally, ahead of the U.S., which dropped one spot, having suffered setbacks in the category of fundamental rights, where it fell five spots.

Sitting atop the rankings are Denmark, Norway and Finland, in that order. The worst scores were found in Afghanistan (111), Cambodia (112), and Venezuela (113).

Check out the interactive map here.

 

 

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CBA influence

Improving Canada’s grade on UNCRC compliance reporting

By Kim Covert January 31, 2018 31 January 2018

 

If the UN were grading Canada’s mandatory reporting efforts under the UN Convention on the Rights of the Child, with a particular focus on its record in following the recommendations found in the Concluding Observations to its previous reports, Canada might struggle to get a pass if the grading were done on a curve, but otherwise it would edge into failure territory.

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Legal innovation

The Pitch: The ideas come easy. Now try selling them.

By Yves Faguy January 30, 2018 30 January 2018

The Pitch: The ideas come easy. Now try selling them.

 

You have a great business idea for the legal market?  But you aren’t sure it’ll fly. Well, there's a pitching competition for that.  Ahead of the February 23 deadline for the CBA's legal tech startup competition, the Pitch, CBA National caught up with the event’s co-host Martine Boucher, president and founder of Simplex Legal.  We asked Martine about the value of testing business ideas on those who will ultimately help entrepreneurs shape their products.

CBA National: Why would you encourage a starting entrepreneur to get involved in The Pitch?

Martine Boucher: Well, it’s an exciting time right now in the legal industry. There are a lot of opportunities, a lot of ideas out there. And this is a chance for young start-ups to really test their ideas out in front of a panel of experts that are either investors, partners, or that has done something similar. For an entrepreneur, it’s so valuable to have feedback, having the chance to talk to potential users, seeing their reactions, vetting your idea and getting a real critical look. And getting ready for that experience, I think, is worth a lot to an entrepreneur.

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Privacy

How the Privacy Commissioner proposes we enforce a right to be forgotten

By Justin Ling January 30, 2018 30 January 2018

How the Privacy Commissioner proposes we enforce a right to be forgotten

The Office of the Privacy Commissioner has offered up some ideas about how Canada could develop its own approach to de-indexing search results about people – a way of enforcing a so-called right to be forgotten online. Commissioner Daniel Therrien says that right may already exist under current law.

In a draft position published last week, Therrien’s office has suggested that Canada could have a pretty effective system to protect the reputation of its citizens online, and all it would need to do would be to more broadly enforce select provisions of the Personal Information Protection and Electronic Documents Act (PIPEDA).

The conversation over the right to be forgotten gathered steam after a Spanish court ruled in 2014 that European citizens have the right to have negative or inaccurate personal information removed from search results. The ruling practically recognized search engines as quasi-public utilities that fall under the regulatory jurisdiction of national governments.

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CBA influence

Unified family courts will increase access to justice for everyone

By Kim Covert January 29, 2018 29 January 2018

 

It’s a common refrain – the federal government needs to move on filling the country’s judicial vacancies – a total of 63 as of Dec. 1, 2017.

But filling the vacancies isn’t all it will take to improve access to justice and reduce the burden on criminal and civil courts in this country.

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