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The Canadian Bar Association
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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CBA influence

30 is the new over-the-hill: Time to update language law

By Kim Covert January 9, 2018 9 January 2018

 

Canada’s Official Languages Act turns 30 next year, and is beginning to show its age.

CBA President Kerry Simmons wrote to the Ministers of Treasury, Canadian Heritage and Justice, the three portfolios that play the biggest role in the implementation of the Act, calling on them to bring the legislation – initially adopted in 1969 and consolidated in 1988 – into the 21st century.

While the reality of official languages in the country is continually changing, the Act is frozen in time, she said.

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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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Criminal law

Gladue's unintended consequences at bail

By Jillian Rogin January 5, 2018 5 January 2018

Gladue's unintended consequences at bail

The over-representation of Aboriginal persons in remand custody in Canada is an ongoing cause for concern. Representing about 3 per cent of the general population, statistics indicate that Aboriginal individuals make up over 20 per cent of those in remand custody (or pre-trial detention) in Canada. Some measures have been adopted to mitigate the risks of Aboriginal individuals being unfairly treated by the criminal justice system – chief among them the principles outlined in R v Gladue and reiterated in R v Ipeelee – but author Jillian Rogin draws a portrait of persisting systemic failure.

In her recent Canadian Bar Review article, Rogin writes that Gladue sentencing principles are even in some cases -- in bail matters particularly -- making matters worse:

A review of Gladue bail jurisprudence reveals the ways in which Aboriginal people in Canada are improperly being sentenced via bail proceedings. The courts have failed to identify the relevant legal principles that should animate bail. Instead, judicial interim release is being utilized as a diagnostic tool and Aboriginal people are inappropriately being subjected to “treatment” via the over-use of sureties and conditions of release. The relevant systemic factors are not properly considered and should play a far greater role in the assessment of risk and the interpretation of Gladue.

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Libel law

Crookes revisited: the law of libel around internet links

By Ryan Van Horne January 5, 2018 5 January 2018

Crookes revisited: the law of libel around internet links

 

Does publishing a hyperlink amount to libel? Not unless the person publishing it repeats the original defamatory content.

That’s what Halifax-based Frank Magazine has been arguing, relying on the 2011 Supreme Court of Canada ruling in Crookes v. Newton, which found that hyperlinks are content neutral. The satire publication asked a Halifax court to dismiss two of the four counts it faces of violating a publication ban in a child-protection case.

The two charges stem from tweets in February, April and May of this year by the magazine of links to an article it published in January 2015. Because violating a publication ban under Nova Scotia's Children and Family Services Act is a summary offence, and the six-month time limit has expired, the charge for publishing the January 2015 article should be dismissed, argues lawyer David Hutt of Burchells LLP, a Halifax-based law firm. Hutt represents Coltsfoot Publishing Ltd., the parent company of Frank Magazine, and Frank's managing editor Andrew Douglas. Hutt also argues that the hyperlinks to that article do not amount to publication and that the count relating to the publication of tweets with hyperlinks to the January 2015 article on Frank's website should also be dismissed.

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Litigation

Settlement Counsel: an innovative strategy for managing commercial litigation files

By Mariane Gravelle January 3, 2018 3 January 2018

Settlement Counsel: an innovative strategy for managing commercial litigation files

 

In her recent Canadian Bar Review article, Michaela Keet discusses the use of Settlement Counsel (SC) in commercial litigation. While this method has known a measure of success, it is still quite unknown in Canada and the U.S. There is also very little academic literature about it.

Keet defines Settlement Counsel as “a negotiation structure that separates litigation and settlement roles – allowing for the simultaneous advancement of litigation and negotiation on parallel tracks, by different lawyers”:

Since most cases settle before trial, how they settle must be examined closely to explain the pockets of sudden and passionate interest in SC. Proponents of the model point out that litigation settlements typically occur after the investment of significant resources in the management of pre-trial litigation, without full and thoughtful exploration of client needs. They argue that SC files settle sooner with lower legal and internal business costs, even in consideration of SC fees. Proponents of the model also claim that the quality of SC outcomes are superior to litigation outcomes. Practitioners employ techniques to get earlier, relationship-oriented settlements in a commercial world where relationships are increasingly valued.

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CBA influence

CBA submission: Lawyers, not immigration consultants, should represent newcomers

By Kim Covert January 3, 2018 3 January 2018

 

The CBA’s Immigration Law Section has said it quite a few times over the past several years, and said it again in a December letter to the Immigration Minister: lawyers are best placed to offer professional representation for newcomers to Canada.

The Section’s latest letter is a response to the government’s response to the Citizenship and Immigration Committee Report Starting Again: Improving Government Oversight of Immigration Consultants.

The Section applauds the government’s commitment to addressing the need to protect the public from unprofessional or unethical immigration consultants.

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CBA influence

How tricky is consent? Let us count the ways

By Kim Covert January 2, 2018 2 January 2018

 

Consent is a weighted word these days, and people in many sectors are trying to decide when it’s necessary, how it must be given and how it can be recognized.

Sometimes the question of whether consent was granted can be explained using the simple metaphor of a cup of tea: does the other person want tea? Yes or no?

When it comes to the gathering and sharing of personal information for business purposes, however, the question of consent becomes a lot more complex.

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Justice

Ottawa's justice agenda in 2018

By Justin Ling January 2, 2018 2 January 2018

Ottawa's justice agenda in 2018

 

Well into the second half of its mandate, the Trudeau government has a lot of work left to do.

Ottawa’s mandate letter tracker, an attempt by the government to grade its own success on the commitments it made after coming into office, reports that it has followed through on just three justice-related files: Adding gender identity as a protected grounds under the federal Human Rights Act and Criminal Code, coming up with a  legislative response to the Carter v. Canada ruling by the Supreme Court of Canada regarding physician-assisted dying, and ensuring an appointment process for Supreme Court Justices that is “transparent, inclusive and accountable to Canadians.” (Some lawyers would question whether that third point is really a victory for the government.)

As for the rest of the justice file, the government has its work cut out for it when Parliament returns in late January, and will need to put a rush on if it wants to finish up its priorities before the next election.

Here’s a quick rundown of some items to watch for in 2018.

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The Supreme Court

Gowling WLG's Lynne Watt on what to expect from the SCC in 2018

By Yves Faguy December 22, 2017 22 December 2017

 

Next year the Supreme Court of Canada will hand down its rulings in a number of closely watched cases, namely Williams Lake Indian Band, Deloitte & Touche v.Livent Inc., TWU  and the Comeau ”free the beer” case. We recently sat down with Lynne Watt, a partner in Gowling WLG’s Ottawa office and leader of the firm’s Supreme Court of Canada Services Group. In the above video, Watt gives us a preview of what to look out for in the coming year at the SCC.  She also shares her insight on the new composition of the court.

 

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Legal marketplace

Looking to 2018: Jordan Furlong gives us his predictions on the legal market

By Yves Faguy December 21, 2017 21 December 2017

 

As the year draws to a close, it’s time to take a peak at what 2018 might have in store for the legal market in Canada. In our annual year-end interview, legal market analyst (and former editor-in-chief of this magazine) Jordan Furlong shares his insight on changes to the regulatory landscape in this country, the challenges law firms face in modernizing their business, and why it’s important to keep an eye on the Big Four accounting firms moving into the legal space in North America.  He also offers up one big prediction, so tune in until the end.

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