The Power of Perspectives

The Canadian Bar Association
Practice hub

How government works

By Ann Macaulay June 18, 2018 18 June 2018

How government works

 

The Diners

The former government lawyer: Before joining Miller Thomson as a partner, John Grant was Crown counsel for 15 years. He has also been a tax litigation expert with Canada’s Department of Justice.

The in-house counsel: Eryn Fanjoy is an associate practising in Stikeman Elliott’s Tax Group.

Tax litigators in private practice often assume the government is all-knowing and all-powerful, with “a massive amount of resources and manpower to throw at litigation,” says John Grant, a former Department of Justice (DOJ) litigator. But that’s simply not true. “Often, the government is the litigation side that’s outmanned.”

Now in private practice at Miller Thomson in Toronto, Grant is sharing his insights with second-year Stikeman Elliott tax associate Eryn Fanjoy, passing along what he learned over the course of more than 15 years at the DOJ.

Over a lunch of black cod at the very busy Drake One Fifty in Toronto’s business core, Grant recalls that courtroom experience plus the opportunity to represent Canada on matters of national scope greatly appealed to him after he graduated from law school. “You’re immediately on your feet” at the DOJ, he says, unlike private practice. “There’s no better training ground than the government.” During his time in government, John worked on hundreds of files, including about 100 reported decisions.

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Practice hub

Collaboration at work

By Julie Sobowale June 18, 2018 18 June 2018

Collaboration at work

 

Teams from Firm A and Firm B arrive at the office of in-house counsel to pitch their services. When the team from Firm A presents, presenters compliment each other as they speak. When the team from Firm B presents, team members look at their phones while others from their team are speaking. Which firm do you think in-house counsel will choose?

“The competitive advantage of teamwork starts before the work comes in the door,” says Jennifer Romig, law professor at Emory University Law School. “An effective team should be able to pitch in a tailored, cohesive way actually showing how they work together as a team, rather than just saying it.”

Collaboration and teamwork are more than just buzzwords. It’s good business. According to research from Heidi Gardner, a distinguished fellow at the Center on the Legal Profession and faculty chair of the Accelerated Leadership Program at Harvard Law School, lawyers from multiple practice groups collaborating to serve one client earned 12 per cent higher hourly rates than lawyers selling discrete services. She suggests identifying lawyers with expertise that might be beneficial to your clients and finding a project to work on together.

“It starts with the client,” says Gardner. “Even the most self-interested lawyers want to do great work for their client. One GC from Latin America recently told me that he expects his outside counsel to be able to anticipate and address the questions on the mind of the business person. It’s not enough to serve up a narrow legal answer or to focus on winning arguments.

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Q&A

Q&A with Mark A. Cohen: People skills for the future

By Yves Faguy June 18, 2018 18 June 2018

Q&A with Mark A. Cohen: People skills for the future

 

Even as automation takes over, chipping away at our sense of security, people skills will command a high price in the battle for talent, says Mark A. Cohen, a legal strategist and CEO of Legal Mosaic. CBA National caught up with Cohen after his keynote speech at the 2018 CCCA National Conference in Toronto to ask him how law firms should go about focusing their efforts on hiring the right people.

CBA National You’ve said that just knowing the law won’t cut it anymore. It’s people skills that matter again. Why?

Mark A. Cohen Most people are fearful that machines are going to replace people or marginalize their roles. But as technology becomes more and more widely deployed, one of the things that will separate successful professionals from machines is their EQ or people skills. Law has always been, in my opinion, a persuasion game. And now, those with people skills will be able to use technology to be more persuasive. Those who will succeed are the leaders who will be able to machine harvest data, understand it, and communicate it effectively to other people so that they act on it successfully. 

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Conduct becoming

Working through ethical dilemmas

By Gavin & Brooke MacKenzie June 18, 2018 18 June 2018

Working through ethical dilemmas

 

This spring, litigators from across the province gathered at a Law Society of Ontario roundtable to discuss the complex issues that arise in practice surrounding ethics in litigation. As co-chairs of the roundtable, we organized a session to work through a series of mock problems, raising issues like joint retainers, the duty of candour, preparing clients as witnesses, and working with expert witnesses. Over the course of the subsequent panel discussion, participants shared and debated their findings and practical tips. Of the many valuable takeaways, here are three that we thought were most worth sharing.

1. There is value in working through professional conduct issues with colleagues

Although the rules of professional conduct may appear straightforward, it can be difficult to apply them to a real problem in your practice – especially if you are personally invested in the matter. It’s also easy to lose perspective when you’re used to advocating for your client, or when there is tension between your personal interests and professional obligations. 

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Opinion

What will MeToo cost you?

By Caitlin Urquhart June 18, 2018 18 June 2018

What will MeToo cost you?

 

Gender-based harassment is rarely about sex. It’s almost always about power. As a result, it should come as no surprise that law firms are not immune to the global reckoning that began last October. This year, for example, Borden Ladner Gervais LLP included sexual harassment on its list of the top legal risks for businesses. Law firms are businesses too, and can suffer from some of the same issues with power dynamics.

Actions from the distant past are being judged and measured against today’s yardstick. Women coming forward are believed and honoured for outing inappropriate behaviours. The tides have turned. This is a global phenomenon.

While stories of dethroned lawyers have not yet made headlines, everything from frantic whispers to ousters are happening at partnership tables. Those with skeletons in their closets are panicking as they realize that others now see them as immense liabilities. No doubt they are calculating their options.

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Closing argument

Separate schooling and making sense of Canada’s identities

By Omar Ha-Redeye June 18, 2018 18 June 2018

Separate schooling and making sense of Canada’s identities

 

Canada had at its outset two founding peoples, legally and constitutionally speaking, which makes it unique among the world’s nation-states. It’s a narrative, of course, that discounts the foundational role played by this country’s Indigenous Peoples. More on that later.

To ensure British and French identities would both continue as part of the Canadian Compact, section 93 of the Constitution Act enshrined public funding for separate schools for Protestants and Catholics – though only where such schools existed before a province entered into Confederation.

Much has changed since 1867. The case for separate schooling is increasingly being challenged as both secular groups and religious minorities gain influence across Canada. Many provinces have renegotiated their relationships with separate schools.

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Big picture

Family disputes in Canada

By CBA/ABC National June 18, 2018 18 June 2018

Family disputes in Canada

 

Last May, Justice Minister Jody Raybould-Wilson introduced legislation that would overhaul Canada's divorce laws. The main thrust of the amendments is to place the best interest of the child at the forefront of resolving disputes, and emphasize parenting responsibilities after separation in less adversarial terms than the existing legislation does. New measures also aim to make the justice system more accessible by encouraging spouses to rely more on family-dispute resolution services instead of the courts. Here is a look at data collected by Statistics Canada’s Civil Court Survey (CCS), for 2016-2017, on cases at both the superior and provincial and territorial court levels. The figures are broken down into the type of family issue addressed in those cases.

For the full infographic, click here.

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The Supreme Court of Canada

SCC backs law societies in denying accreditation to TWU

By Justin Ling June 15, 2018 15 June 2018

SCC backs law societies in denying accreditation to TWU

 

Trinity Western University has lost its bid to the Supreme Court, and its graduates will not be accredited as lawyers, so long as the school forces its students to sign a mandatory religious covenant.

The 7-2 split decision from the court — with four different reasons — ruled that the law school’s exclusionary admissions policy unduly excluded LGBTQ students. In doing so, it found the decisions by both the law societies of British Columbia and Ontario to deny it accreditation to be reasonable.

Under the law school’s mandatory covenant, students are forbidden from engaging in sexual activity outside the bonds of heterosexual marriage.

The pair of decisions — dismissing the appeal in Ontario, and allowing the appeal in British Columbia — offers new guidance on where the religious freedom guaranteed under the Canadian Charter begins and ends. But the majority court couldn’t come to a consensus on how that should work.

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Trade

What it will take to get NAFTA negotiations back on track

By Yves Faguy June 14, 2018 14 June 2018

 

Harsh language rarely helps the cause. Emphasizing a more positive intention is generally the best way to get parties to agree to a deal.  That was the subtext of the message delivered yesterday by Public Safety Minister Ralph Goodale who, in an interview on a Fox News business, made the case that Canada still wants to make a deal to update the North American Free Trade Agreement. 

It didn’t go unnoticed that Goodale squeezed in some heartfelt compliments to U.S. President Donald Trump for reaching an agreement with North Korean leader Kim Jong Un in Singapore this week.

Hopefully, the change in tone will get Canada and the United States back on track to find a resolution to their fraying trade relations after the Quebec G7 Summit, says Clifford Sosnow, a lawyer and partner at Fasken Martineau DuMoulin, based in Ottawa and Toronto.

The other major challenge, he says, is figuring out what the end game is for the Trump administration.

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SCC: Correctional Service's psychological assessment tools may be culturally biased

By Yves Faguy June 14, 2018 14 June 2018

SCC: Correctional Service's psychological assessment tools may be culturally biased

The Supreme Court of Canada has ruled in a 7-2 decision that the Correctional Service of Canada failed to take reasonable steps to ensure the accuracy of psychological assessment tools for Indigenous offenders. The assessment tools have been used in a number of situations, from helping determine eligibility for parole and access to rehabilitation programs.

The ruling concludes a challenge brought forward by Jeffrey Ewert, a métis offender in his fifties who has spent more than 30 years in federal penitentiaries serving two life sentences for second degree murder and attempted murder. For much of that time, the CSC has relied on risk assessment scores to discourage Ewert from accessing rehabilitative opportunities, even though he had become eligible for parole over 20 years ago.

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CBA influence

A shorter deadline won’t make tax reports more accurate

By Kim Covert June 13, 2018 13 June 2018

 

Taxpayers with foreign affiliates currently have 15 months after the end of their taxation year to file information returns to show their compliance with Canadian taxation of foreign-based income. In the 2018 budget, the federal government announced its intention to shorten that filing deadline to six months beginning in 2019, to bring it in line with the corporate income tax return deadline.

In a submission to the Department of Finance, the Joint Committee on Taxation of the Canadian Bar Association and Chartered Professional Accountants of Canada lays out its argument against this proposed move.

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Corporate counsel

Global cybersecurity: Do we need more law?

By Karen Sadler June 13, 2018 13 June 2018

Global cybersecurity: Do we need more law?

 

“Should we be worried? Extremely worried?” That’s the question Rosemary McCarney (pictured above) opened with at the 2018 CCCA National Conference & In-House Counsel World Summit earlier this spring. As the Canadian Ambassador and Permanent Representative to the United Nations (and the Conference on Disarmament in Geneva in 2015), she’s well poised to shed light on the pros and cons of the internet as well as the steps we need to take to address cybersecurity concerns as the world gets smaller and smaller.

“I was struck by how quickly what I wanted to say even just a few weeks ago was overtaken by real-time events,” she began. “Our cyber codependency, while still offering both advantages and opportunities, will cause us some sleepless nights because it makes us vulnerable.”

Cyberthreats are in the top three of global threats reported by the World Economic Forum, and are becoming more frequent and more disruptive. However, McCarney is optimistic. She argues that the myriad of treaties, conventions, standards and norms that make up the international rules-based order we rely on to govern trade, foreign policy, commerce and war are more than sufficient to govern cybercrime and cybersecurity issues too. Is the global commons under threat? Absolutely. But McCarney strongly believes we’re up to the task of defending it.

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SCC backs law societies in denying accreditation to TWU

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