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The Canadian Bar Association
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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CBA influence

National security bill: better than the one that came before – but not perfect

By Kim Covert February 21, 2018 21 February 2018

 

Almost two years after his appearance before a Parliamentary committee arguing on the CBA’s behalf against the passage of the Conservatives’ controversial Bill C-51, Peter Edelmann returned to Ottawa at the beginning of February to present the CBA’s submission on the Liberals’ Bill C-59.

While in opposition the Liberals announced they would vote in favour of the Conservatives’ Anti-Terrorism Act, but would repeal parts of it once elected. Bill C-59, the National Security Act, 2017, is the result.

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The CBA and the MeToo movement

Tackling gender inequality

By Sara Albert February 21, 2018 21 February 2018

Tackling gender inequality

 

What are successful male leaders across the world doing to tackle gender inequality? A recent report by HeForShe intended to discover exactly that. Released in late 2017, the IMPACT 10x10x10 Gender Parity Report examines the successes, challenges and progress of the IMPACT Champions over the last two years. The 30 Champions represent heads of state, corporate leaders and university presidents who are devoted to fulfilling the UN Women’s mandate to empower women and achieve gender equality by 2030.

Perhaps I should back up. HeForShe, many may recall, is a solidarity campaign for the advancement of women that was introduced at the United Nations by Emma Watson in 2014. It was introduced in a speech that went viral:  https://www.youtube.com/watch?v=gkjW9PZBRfk

HeForShe strives to bring the other half of society (read: men) to the table to accelerate gender equality and the empowerment of women. HeForShe represents the first global effort to include men and boys as change agents for gender equality. As the world watches unprecedented numbers of women who have suffered from sexual abuse and harassment in the workplace step forward in the era of #MeToo, the HeForShe movement strikes a particularly relevant chord.

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The CBA and the MeToo movement

MeToo and the pressure of keeping quiet in law

By Preston Parsons February 21, 2018 21 February 2018

MeToo and the pressure of keeping quiet in law

 

As a young, caucasian, cisgender, (gay) male lawyer, I have no experience being on the receiving end in the legal profession of inappropriate sexual remarks, conduct or contact. I am also not in a position to shed light on what frequency male or non-binary members of the profession have endured sexual harassment or assault in the profession.

I wish that based on that, I could say I have nothing to contribute on this topic.

I wish I could say I have never had young female lawyers and articling students pull me aside to confide in me serious incidents of sexual harassment or assault they endured in practice or during their articles.

I wish I could say that those who confided in me found some measure of relief by achieving some measure of justice in the circumstances they endured. Sadly, an example of comeuppance evades me.

As lawyers we hear all manners of things from clients on different topics and have in all but the most exceptional circumstances, professional obligations to hold those statements entirely confidential; to keep what is told to us silent. Keeping silent where friends reported these situations to me was not a professional obligation, but it was insisted upon by those confiding in me. While I was able to assist by lending an open ear, offering support, insisting they were not broken or alone, and highlighting resources that may be helpful, I was not able to reverse the pain they felt or help them see justice for the positions they were placed in, the damage their careers suffered, or the jobs they lost.

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Criminal justice

The risks in fixing jury selection in Canada

By Yves Faguy February 20, 2018 20 February 2018

The risks in fixing jury selection in Canada

Alice Woolley has an interesting post up on the ethical duties of jurors in the wake of the acquittal, by a jury on which seemingly sat no Indigenous Canadians, of Saskatchewan farmer Gerald Stanley in the killing of Colten Boushie, a member of the Red Pheasant First Nation.

Did the Stanley jurors act unethically? On the one hand, there is reason to be concerned that they may have done. The evidence against Stanley was so significant, and the evidence for this having been an accident that occurred despite his proper handling of the firearm so weak, the decision to acquit of manslaughter seems on its face unreasonable. One can speculate about the role of racial bias and stereotypes in the jury’s reasoning, and whether it simply refused to apply the law, preferring instead the position that killing is justified when people come on your property and make you afraid – i.e., that they refused to apply the law not as the conscience of their community, but because they disagreed with applying it here.

On the other hand, the lawyer for the Bouchie family, Chris Murphy, has said “…the jurors took an oath to render a fair and just verdict. Based on the evidence they heard, the submissions made and the charges that the judge gave to the jury, a route of acquittal was a possibility.” If the evidence admitted raised a reasonable doubt in the jury’s mind, and the jury acquitted on that basis, their decision was proper, whether or not we agree with it.

In my view it’s simply impossible to know whether the Stanley jurors acted unethically. But the certain lesson to be learned here is that we need to ensure our juries are representative of the community, that we provide them proper instructions so that they understand their powers and how to exercise them, that we allow them to explain themselves, and that we treat them with the respect and consideration they deserve. Jurors do have ethical duties; it’s our job to help ensure they satisfy them.

Do read the whole thing.

A. Scott Reid, meanwhile, also has a must-read up – a primer of sorts on peremptory challenges in jury selection. Noting that peremptory challenges (not having to give a reason for excluding a potential juror) in criminal trials are a necessary “failsafe” when the triers get a challenge for cause wrong.  He warns there are no easy fixes the system:

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The CBA and the #MeToo campaign

Sexual harassment complaints are good for your business

By Sara Forte February 19, 2018 19 February 2018

Sexual harassment complaints are good for your business

In my employment law practice, I work with employers, including lawyers and law firms, to implement harassment policies.  One client said, “But Sara, if I have a policy about harassment, won’t that encourage employees to make complaints?”  He really did not want to have to deal with complaints.  Complaints can be messy and emotional.

Sexual harassment complaints are good for your business and it benefits your business to have a policy that encourages employees to bring them forward. Why? Because sexual harassment is everywhere. If you had any doubt about the pervasiveness of sexual harassment, I hope that was extinguished by #MeToo. 

Short-term avoidance leads to long-term pain and turnover

If we accept that sexual harassment is pervasive, it follows that sexual harassment could be happening in your law firm.  If sexual harassment is happening, you want to know about it so that you have the opportunity to deal with it.  It is much easier to investigate, and even to defend allegations of sexual harassment close to the time of the events. If there is no mechanism to raise complaints, they may get buried only to resurface years, or even decades later.  With the passage of time, evidence deteriorates and it is much harder for the organization and individuals involved to respond.

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Legal technology

Global Legal Hackathon kicks off this week

By Yves Faguy February 19, 2018 19 February 2018

Global Legal Hackathon kicks off this week

 

A global legal hackathon is taking place on February 23-25 in a bid to help tackle some of the legal industry’s big data challenges. Talented tech, information, design and legal professionals are invited to gather in hubs in 40 cities around the world to combine ideas and technology to build concepts and solutions that address business and practice of law challenges and access to justice opportunities.

Teams are competing for one of ten spots in the world finals, which will take place on April 21st in New York.

“Many within and outside the legal profession have been advocating for the role of technology and outside expertise as essential to helping the profession take on law’s thorniest challenges,” says Colin Lachance, the CEO for Compass, a Canadian legal research platform and country lead for vLex Canada, which is supporting the event.

In Ottawa, collaborators from Invest Ottawa, Compass / vLex Canada, the University of Ottawa’s law faculty and its Programme de Pratique du Droit, among others, will converge on Bayview Yards for the weekend to form teams to build apps and innovations aimed at solving a particular problem, whether they are inefficiencies that contribute to unaffordable legal services or obstacles to accessing legal information and understanding.

Other participating Canadian cities include Montreal, Toronto, Calgary and Vancouver.

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Complex litigation

The rise of high-stakes global class actions

By Ann Macaulay February 16, 2018 16 February 2018

The rise of high-stakes global class actions

 

Canadian lawyers face greater uncertainty as complex global class actions increase. At a February Ontario Bar Association Institute program, lawyers highlighted cases that have helped to evolve the landscape.

Cross-border class-action litigation has proliferated over the past five to 10 years, said panelist Nadia Campion of Polley Faith in Toronto. Plaintiffs are increasingly seeking to increase the size of their classes by including foreign class members, she said, adding that from about 2010, “the courts were not entirely comfortable with exercising jurisdiction over global classes. But that’s all changed now.”

Campion outlined two significant Court of Appeal decisions, both with many class claimants with no connections to Canada. Excalibur involved a Canadian auditor involved in a private placement of shares and warrants by American owners of a Chinese corporation. The Court of Appeal overruled the lower courts’ denial of certification, ruling that there was a real and substantial connection to Ontario, essentially saying that if class members “have been harmed or potentially harmed by operations of a Canadian entity operating in Canada, then that is sufficient to give rise to a real and substantial connection test under which jurisdiction can be exercised,” said Campion. The key consideration was that courts can exercise jurisdiction over claims against Ontario-based defendants.

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