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Articles by Ann Macauley
National | CBA National - The Power of Perspectives
Law Hot topics Courts are more at ease exercising jurisdiction over multinational class proceedings. BY Ann Macauley 16 Feb 2018 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.
National | CBA National - The Power of Perspectives
Law Hot topics On the face of it, it looks like USMCA will have a state-to-state dispute settlement mechanism that the parties will be able to use. But politics will be unavoidable. BY Doug Beazley 28 Mar 2019 Maybe you have to be a trade treaty negotiator to appreciate the irony: some dispute settlement clauses are better at starting arguments than ending them. NAFTA has three dispute settlement mechanisms, all of them contentious for one reason or another.
National | Funding for family law research is everyone’s problem
CBA Influence Insight Stop looking the other way: Funding for family law research is an access to justice problem everyone should care about. BY Kim Covert 21 Jan 2019 The very first secular divorce court was created in 1857 in England.
National | CBA resolution: What’s the meaning of diversity
CBA Influence Insight Ensuring diversity and inclusion throughout an organization requires more than good intentions. It takes support from leadership and a willingness to change attitudes and behaviour. It also helps to have a shared understanding of what diversity means. BY Yves Faguy 18 Jan 2019 Ensuring diversity and inclusion throughout an organization requires more than good intentions. It takes support from leadership and a willingness to change attitudes and behaviour.
National | Making Canada’s Constitution bilingual
CBA Influence Insight It’s time for Ottawa to engage provincial and territorial governments and begin negotiations. BY Kim Covert 11 Mar 2019 Some rights reserved by Vince Along The CBA national President and the President of the Quebec Branch are modelling behaviour for the federal, provincial and territorial governments to follow by joining forces in the service of a worthy cause – a bilingual constitution.
National | CBA National - The Power of Perspectives
Kenneth Jull has done them. So have Paul Klasios and Philippe Dufort-Langlois. All are or have been in-house counsel who have had to conduct internal investigations, an unpleasant exercise described by some as a bit of a dark art with a unique set of challenges. By all accounts, internal investigations have become more prevalent in recent years.
National | Leveraging technology in immigration processing
CBA Influence Insight Online tools are fine. But expediency at the expense of sound decision-making can also result in a log jam of judicial review applications in the federal courts. BY Kim Covert 11 Mar 2019 When it comes to the way Immigration, Refugees and Citizenship Canada processes applications, the medium must serve the message – and the message is that administratively fair and judicious decision-making must take priority.
National | Defining moments: When is a company no longer considered public?
CBA Influence Insight When “going private,” a corporation may still continue for several days to be a public corporation for Canadian tax purposes BY Kim Covert 19 Mar 2019 iStock The Income Tax Act says a corporation is public for tax purposes when its shares are listed on a designated stock exchange. Seems simple enough, right?
National | CBA National - The Power of Perspectives
Kenneth Jull has done them. So have Paul Klasios and Philippe Dufort-Langlois. All are or have been in-house counsel who have had to conduct internal investigations, an unpleasant exercise described by some as a bit of a dark art with a unique set of challenges. By all accounts, internal investigations have become more prevalent in recent years.
National | A Jordan rule for minors?
Law Hot topics The top court could impose a lower ceiling for youth trials. BY Doug Beazley 13 Mar 2019 Equality before the law (as the appeal courts keep reminding us) doesn’t mean everyone gets treated exactly the same way. The Supreme Court of Canada could be getting ready to remind us again. The high court recently heard an appeal in the case of K.J.M. v. Her Majesty the Queen, a case freighted with some interesting implications for youth trials.
National | CBA National - The Power of Perspectives
Law Hot topics The top court could impose a lower ceiling for youth trials. BY Doug Breazley 13 Mar 2019 Equality before the law (as the appeal courts keep reminding us) doesn’t mean everyone gets treated exactly the same way. The Supreme Court of Canada could be getting ready to remind us again. The high court recently heard an appeal in the case of K.J.M. v. Her Majesty the Queen, a case freighted with some interesting implications for youth trials.
National | A Jordan rule for minors?
Law Hot topics The top court could impose a lower ceiling for youth trials. BY Doug Breazley 13 Mar 2019 Equality before the law (as the appeal courts keep reminding us) doesn’t mean everyone gets treated exactly the same way. The Supreme Court of Canada could be getting ready to remind us again. The high court recently heard an appeal in the case of K.J.M. v. Her Majesty the Queen, a case freighted with some interesting implications for youth trials.
National | Redefining our privacy expectations
Law Hot topics The SCC’s recent Jarvis ruling will have broad effects, particularly in the grey areas, on the use of surveillance technology. BY Fiona Morrow 12 Mar 2019 Photo by Matthew Henry on Unsplash As technology pervades every area of life, the line between private and public is sometimes difficult to define—particularly when drawing on laws written before the advent of smartphones and social media.
National | A pressing matter: Fixing national security ahead of the election
Law Hot topics With less than eight months to go before the next federal election, anxiety is running high that Canada might not have the legal tools in place to defend itself from foreign meddling. BY Justin Ling 27 Feb 2019 The Liberal government first introduced its landmark national security reform package, Bill C-59, in June of 2017. It has since inched its way through Parliament at a glacial pace.
National | Redefining our privacy expectations
Law Hot topics The SCC’s recent Jarvis ruling will have broad effects, particularly in the grey areas, on the use of surveillance technology. BY Fiona Morrow 12 Mar 2019 Photo by Matthew Henry on Unsplash As technology pervades every area of life, the line between private and public is sometimes difficult to define—particularly when drawing on laws written before the advent of smartphones and social media.
National | Q&A: The case for decriminalizing compensation to surrogates and donors
It is prohibited in Canada to compensate surrogates and donors of reproductive material. Last year, the federal government finally introduced regulations – 14 years after the Assisted Human Reproduction Act was first enacted – that propose a list of reimbursable expenses related to donations and surrogacy. The CBA’s position is that the list should not to be exhaustive and allow instead for “reasonable expenses.” It also supports decriminalizing compensation to surrogates and donors.
[og:title] The sovereignty of states and multinational corporate accountability
In 1897, a U.S. citizen living in Venezuela, George F. Underhill, brought a suit in a New York court to recover damages against the revolutionary Venezuelan General Hernandez, who had occupied part of the country and had effectively tried to nationalize his business. Damage was done, the American claimed, and he wanted to be made whole.
National | "Bankruptcy is not a license to ignore rules"
When oil and gas companies go bankrupt, the proceeds of the sale of remaining assets should go to the clean-up of left behind orphan wells and take priority over paying off creditors. That’s what the Supreme Court of Canada ruled in a 5-2 ruling that has major implications on the priority and treatment of environmental claims in bankruptcy.
Labelling pro-life views as ‘anti-Charter’ is wrong – and sets a dangerous precedent.
Law Hot topics The national controversy surrounding the Canada Summer Jobs program has avalanched far beyond a mere “kerfuffle." BY Derek Ross and Sarah Mix-Ross 2 Jan 2019 The national controversy surrounding the Canada Summer Jobs program has avalanched far beyond a mere “kerfuffle”.
National | CBA National - The Power of Perspectives
Millennials are blamed for all sorts of contemporary social ills, but there is at least one societal issue for which they can pin the blame on their elders: climate change. A group of youth based in Quebec are applying to bring a class action suit against the federal government at the Superior Court of Québec. The youth are claiming that the failures of successive federal governments to appropriately tackle climate change is resulting in charter rights violations.
Canada’s proposed new Impact assessment: Putting science first?
Law Hot topics Critics say the federal government is giving itself a back door to impose political considerations on impact assessments. BY Doug Beazley 15 Nov 2018 Compromise is the lifeblood of working democracies. That doesn’t mean everyone has to like it. Bill C-69 — the Trudeau government’s attempt to reform Canada’s system of environmental reviews for major resource projects — is before the Senate, and making no one particularly happy.
National | CBA National - The Power of Perspectives
When it comes to banking, Canadians tend to reach for the familiar. Loyal to a fault, consumers here look to their primary financial institution for most products, even when they suspect they could get a better deal elsewhere. No surprise then that few have taken notice of the open banking phenomenon sweeping across the globe, particularly in Europe, the U.S. and parts of Asia. What is open banking?
With the emergence of settlement counsel, must we update our code of conduct rules?
In a recent Canadian Bar Review article co-authored with Brent Cotter, Michaela Keet returns to her interest in the emerging trend of splitting roles between litigation counsel and settlement counsel, which on negotiation to reach early settlement of disputes.
National | CBA National - The Power of Perspectives
Complex, sprawling international trade treaties like the new United States-Canada-Mexico Agreement, or USMCA (or NAFTA 2.0, if you find President Trump’s preferred title a little lumpy), can be difficult to sell to hardcore ideologues. Big treaties have a lot of moving parts; one side gives something up to get something, while the other side does much the same. So USMCA has a couple of features that aren’t easy to file away as ‘left’ or ‘right’.
The challenges of managing insolvency in the IT sector
Law Hot topics A company’s assets consist primarily of ideas, which can make the insolvency process a real challenge BY Fiona Morrow 27 Sep 2018 If a company’s assets consist primarily of ideas, securing funding to keep the development of that idea going forward through an insolvency process can be a real challenge. That’s because everything that is exciting about new technology becomes part of the problem when an IT company goes into receivership before its product has been fully developed.
AggregateIQ: first Canadian company to get notice for a GDPR violation
It didn’t take too long for GDPR make a major impact in Canada. AggregateIQ (AIQ), a Victoria-based Canadian digital advertising, web and software firm, is the first company in Canada to receive an enforcement notice under the new European Union General Protection (GDPR) regulations. The United Kingdom Information Commissioner’s Office (the ICO) issued its first extraterritorial enforcement notice under GDPR to AIQ.
Facilitating routine police evidence may not help court delays
Law Hot topics What is routine? What might seem like an abstract question has taken on larger significance under Bill C-75. BY Justin Ling 17 Sep 2018 What is routine? What might seem like an abstract question has taken on larger significance under Bill C-75, the federal government’s omnibus justice reform legislation, which will come back before the Justice and Human Rights Committee as the House of Commons returns this month.
Right to be forgotten sets privacy against freedom of expression
Sir Timothy John Berners-Lee, the British engineer credited with inventing the World Wide Web, called it “dangerous.” Jimmy Wales, founder of Wikipedia, described it as “deeply immoral.” The New York Times warned darkly that it could “undermine press freedoms and freedom of speech.” “It” is the 2014 ruling by the Court of Justice of the European Union upholding a regulatory agency’s decision to order Google to delete any links to an old news article about an auction of some property...
National | CBA National - The Power of Perspectives
Law Hot topics The feds have been taking a closer look at white-collar crime both domestically and internationally. BY Ann Macauley 10 Sep 2018 Many Canadians were outraged after Loblaw Companies Ltd. and its parent company George Weston Ltd. secured immunity from prosecution last year by coming forward and cooperating in an alleged bread price-fixing scheme. The fact that immunity was granted reinforced a widely held opinion that the federal government is soft on white-collar crime and corruption.
Lenders vs pensioners: Whose claims should be preferred?
Attilio Malatesta worked in sales for Sears Canada for more than four decades. In early August, he got the news he’d been dreading: his pension was being cut by $800 a month. "Who the hell's going to hire a 73-year-old guy?" he said. "I can only stay on my feet for so many hours. I have arthritis.” When Sears went under in early 2018, it left behind a pension plan burdened with a $260 million actuarial shortfall serving about 18,000 former employees.
Can Holocaust denial legally be considered hate speech?
“The past,” William Faulkner wrote, “is never dead. It's not even past.” He wasn’t talking about the legacy of the Second World War — but he might have been. Around the world, racist and far-right movements are on the march. In Canada, a media marketing firm reported a sixfold increase in online hate speech between 2015 and 2016.
National | CBA National - The Power of Perspectives
Law Hot topics What would you say if someone asked you if you were racist? BY Rakhi Ruparelia 14 Jul 2018 What would you say if someone asked you if you were racist? Even if you were aware of your racial prejudices, would you admit to them? What about in open court? The questions we use to screen prospective jurors for racial partiality in trials involving racialized accused are equally blunt, unsophisticated, and unhelpful.
National | When it comes to workplace drug and alcohol testing, the jury is still out.
As the federal Liberals will no doubt remind you over the coming year, they made history this spring. The Senate (after a lot of grumbling, and the rejection by the government of a stack of amendments) passed C-45, the bill creating a legal market for recreational marijuana. Prime Minister Justin Trudeau called it a promise kept. His opponents called it a catastrophe in the making. The Liberals were sending out fundraising emails on the topic within a day of the bill’s passage. Mission accomplished?
SCC backs law societies in denying accreditation to TWU
Law Hot topics TWU has lost its bid to the Supreme Court.Iits graduates will not be accredited as lawyers, so long as the school forces its students to sign a mandatory religious covenant. BY Justin Ling 19 Jun 2018 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.
National | CBA National - The Power of Perspectives
At the end of March, the Trudeau government introduced new legislation that it claims will modernize the criminal justice system, reduce court delays, reduce the overpopulation of Indigenous people in Canadian jails, clean up the Criminal Code, and ensure a broader representation of marginalized people in the court process.
National | CBA National - The Power of Perspectives
During the go-go days of the 1990s, people who should have known better convinced themselves that economic booms and busts were a thing of the past. Such was their faith in traditional institutions like central banks that only small policy tweaks sufficed to magic away all perceived problems. “Trust the Fed — trust the market,” was the operating mantra, echoing globalist ideals.
National | CBA National - The Power of Perspectives
It’s been a bad decade for gut feelings. Computers are taking over what used to be the exclusive domain of human decision-making. From movie-picking algorithms to self-driving cars that promise an end to fatal crashes caused by human error, we’re striving to develop technology that can predict when we will make bad choices and help us avoid mistakes.
National | CBA National - The Power of Perspectives
Law Hot topics A key part of reconciliation is education. BY Ann Macauley 16 Mar 2018 Lawyers, judges, law schools and legal organizations have a long and challenging road ahead in addressing historic and current deficiencies in how Indigenous peoples are treated in the Canadian legal system. Of the 94 calls to action in the Truth and Reconciliation Commission’s 2015 report, two are specifically directed towards the legal profession.
National | CBA National - The Power of Perspectives
Law Hot topics It's time that Canadian courts reconsider their position on malicious prosecution in civil matters. BY Jasmine Lothian 26 Feb 2018 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.
National | CBA National - The Power of Perspectives
Law Hot topics 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 BY Preston Parsons 21 Feb 2018 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.
National | CBA National - The Power of Perspectives
It is difficult to imagine a Supreme Court of Canada without Beverley McLachlin. For 17 years, she was the court’s rudder, steadying
it in choppy legal waters. So what happens after she’s gone? Appointed to the court by Prime Minister Brian Mulroney as a puisne justice in 1989 and elevated to the top job 11 years later, Beverley McLachlin is the longest-serving chief justice in the court’s history.
National | CBA National - The Power of Perspectives
Earlier this summer the Supreme Court of Canada handed down two rulings clarifying how regulatory bodies, such as the National Energy Board, can fulfill the Crown’s duty to consult. The Clyde River and Chippewas of the Thames First Nation rulings are noteworthy in that the top court has recognized that evaluating cumulative effects of a proposed project and its impact on existing aboriginal and treaty rights can inform the scope of that duty.
Is Canada ready for a new data breach notification regime?
Law Hot topics Businesses in Canada are going to have to get serious about figuring out how to respond to a data breach BY Justin Ling 13 Sep 2017 Businesses in Canada are going to have to get serious about figuring out how to respond to a data breach. This week’s massive Equifax breach is a reminder of the stakes at play when dealing with users’ data. The looming implementation of proposed regulations under Canada’s Digital Privacy Act should also stiffen their resolve.
Digital privacy at the border: What’s in your phone?
Law Hot topics As it stands, crossing the border back into Canada can be risky privacy-wise BY Justin Ling 1 Sep 2017 As it stands, crossing the border back into Canada can be risky privacy-wise. To order a search of a traveller, their briefcase, or cellphone, a border guard need only have a reasonable grounds for supposing that they have “contraband secreted about his or her body,” as the Supreme Court established in 1988’s R. v. Simmons.
Key parts of citizenship revocation process struck down
Law Hot topics “Freedom of expression is a fundamental right in this country. Balancing that with the individual’s interest in protecting personal information — you’re crossing into uncharted territory.” BY Justin Ling 11 May 2017 The Federal Court just beat Justin Trudeau to the punch. In a ruling yesterday, the court found that three provisions in the Citizenship Act were unconstitutional and denied Canadian citizens the right to due process afforded to them under the Canadian Bill of Rights.
National | CBA National - The Power of Perspectives
Economists will tell you that trust is necessary for a stable economy. So what are we to make of growing concerns about what businesses do with the personal data of internet users? Poll after poll shows that consumers simply don’t trust companies with their data and are losing faith in government’s ability to protect their personal information.
Legalizing marijuana: What about Canada's international commitments?
Law Hot topics If Canada legalizes marijuana, will the U.N. Security Council authorize direct force to dissuade the Trudeau Government’s pot plans? BY Justin Ling 22 Jan 2016 If Canada legalizes marijuana, will the U.N. Security Council authorize direct force to dissuade the Trudeau Government’s pot plans? It's most unlikely. But that’s the absurd conclusion to a strange thought experiment accidently set-off by some bureaucrats in the Privy Council Office.
National | CBA National - The Power of Perspectives
It took little more than two weeks after the Supreme Court of Canada declared the right to strike to be protected under the Constitution before the federal government decided to introduce legislation to force over 3,000 Canadian Pacific Railway workers back to work. No matter that the top court ruled in Saskatchewan Federation of Labour v. Saskatchewan that the right to walk off the job is an intrinsically important part of collective bargaining.
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