Legal Feeds Blog
One man dead after two people shot in Toronto, Canadian Press
Two people killed in Burlington, Ont. crash, Canadian Press
|Alastair Clarke says ‘refugees are an economic positive’ for Canada.|
A U.S. federal judge suspended the order last week, and now, the government has a chance to submit legal briefs in support of Trump’s intended policy changes. The battle may end up before the U.S. Supreme Court.
Manitoba has garnered attention since CBC reported that more than 400 people were intercepted near the U.S.-Canada border at Emerson between April to December 2016.
“I think there’s just a general impression that Canada is a safer country than the United States, and they will have more support here, and that [they] will have a better life,” says Alastair Clarke, founder of Clarke Immigration Law in Winnipeg.
Due to Trump’s changes, the Canadian Association of Refugee Lawyers last week was “calling on Canada to immediately suspend the Safe Third Country Agreement.”
"Under the STCA, those who try to enter Canada through the U.S. to make a refugee claim at the border are returned to the U.S. regardless of whether they will or already have had access to asylum in the U.S. The U.S. and Canada have considered one another “safe” for asylum-seekers,” said a CARL news release.
“The STCA creates a North American approach to refugee approvals. With President Trump’s Executive Orders, the U.S. is unilaterally changing the terms of that approach, with potentially disastrous consequences for vulnerable asylum-seekers.”
In Winnipeg, Clarke works with groups that have housing set up and are working “as hard as they can to bring as many people” as they can support.
“The government can’t keep up with the demand,” says Clarke, adding that the biggest legal hurdle he’s grappling with is the STCA.
“Unless the refugee claimant is able to fall under one of the exemptions listed in the agreement, then they are denied at the border,” says Clarke, who says most people who are successful are able to do it due to exemptions related to having family in Canada.
Clarke has handled about 30 to 35 files involving refugee claimants since January 2015, from countries such as Haiti, Burundi, Ethiopia, Eritrea, Somalia, and Nigeria.
“I think more people are coming based on the rhetoric coming from the United States. It’s partially Trump, but I mean Trump was elected, because in general, there is an anti-refugee sentiment in the United States,” he says. “It’s not just him, but I think — generally speaking — there is less of an appetite for refugees in many parts of the United States.”
Ghezae Hagos of the Manitoba Interfaith Immigration Council said that since October 2016, the non-profit organization has come into contact with 117 people who have asked for protection. That includes 39 people in January 2017. Hagos said that number was “certainly much bigger than what we had in the last few years.”
Paul Hesse, immigration lawyer and partner at Pitblado LLP in Winnipeg, helps clients with immigration matters such as work permits and study permits, and obtaining permanent residency. He estimated he’s had double the amount of inquiries he normally receives since Trump was elected.
“It’s a mix in terms of why they’re doing it, in terms of their profiles,” he says.
“Some would be people who, I believe, are vulnerable to removal from the United States who are looking for alternatives, others are IT workers who are looking for a more friendly long-term solution, concerned about permit rules changing in the United States, and looking at other options.”
Man who beheaded bus passenger expected to ask for his freedom today, Canadian Press
Winnipeg woman accused of hiding dead babies in locker to get verdict today, Canadian Press
Teenagers face serious charge for alleged assault at Alberta youth centre, Canadian Press
Several legal hurdles to test Trump and his immigration ban, Reuters
Final hearing begins in U.S. probe of deadly sinking of cargo ship, Reuters
Kremlin wants apology from Fox News over Putin 'killer' comments, Reuters
China protests U.S. sanction list on Iran that hits Chinese firms, Reuters
Donald Affleck, a founding partner of Affleck Greene McMurtry LLP, has died.
|Donald Affleck has died at the age of 77.|
After growing up in the Ottawa Valley, Affleck graduated from the University of Toronto’s Law School in 1964 and started his law career at Fasken Calvin MacKenzie Williston & Swackhamer.
He later went on to co-found Kelly Affleck Greene with other partners that left Fasken together in 1992, and later formed Affleck Greene McMurtry in 2003.
Peter Greene, a fellow founding partner and friend of Affleck, described him as a deliberate and thorough lawyer who would dive into the details of a case even in his later years as a senior partner. He would sift through boxes of documents and make notes when others might have left such tasks to paralegals or more junior lawyers.
Greene says this made Affleck a great mentor for younger lawyers.
“Don would dig into the documents, get the facts and he’d know them. He was a teacher from that perspective for our younger people,” he says.
Greene says he would warn younger lawyers who worked with Affleck on cases to know their facts.
Greene met Affleck at Fasken in the late 1970s and says the firm taught them to make sure to know the facts of a case above all else.
“It was ingrained in us that facts win cases. Law doesn’t,” he says.
While clients might demand an opinion on their case immediately, Greene says Affleck was extremely analytical and would often take a few days to give his opinion on a case if it was going to lead to litigation.
Affleck appeared before trial and appellate courts and was an arbitrator on the softwood lumber anti-dumping case under the North American Free Trade Agreement.
He also was counsel to the standing committee of the House of Commons on Finance, Trade and Economic Affairs when the federal government was considering amendments to competition and banking legislation in the 1970s, and later served as chief counsel to the Royal Commission on Newspapers from 1980 to 1982.
He co-wrote Canadian Competition Law — a widely referred to resource in the area — with Wayne McCracken.
Greene says Affleck was a “class act” that would rarely use profanity.
“I don’t think anybody could dislike him. He just got along with people,” he says. “He was just a likeable guy.”
The Church of the Redeemer will hold a memorial service for Affleck at 162 Bloor Street West in Toronto on Saturday from 3 p.m. to 5 p.m.
Hudson’s Bay makes takeover approach to Macy’s: report, Globe and Mail
|Renu Mandhane, chief commissioner, Ontario Human Rights Commission.|
On Feb. 1, the Ontario Human Rights Commission released a policy statement on medical documentation that is needed when disability-related accommodation requests are made. The policy statement refers to the OHRC’s updated policy on the duty to accommodate disabilities and protect the disabled against discrimination that was released last year, noting the role of medical professionals in the accommodation process and the type and scope of medical information needed to give employers.
“One of the obvious big issues for employers especially is what can they ask employees to provide when they’re seeking accommodation?” says Renu Mandhane, chief commissioner of the Ontario Human Rights Commission. “The new policy statement is meant to strike a balance between privacy and dignity [of the person seeking accommodation] and the need for the employer to understand functional limitations, and what they must accommodate.
“I think that a lot of respondents — service providers and employers — they don’t know what they’re allowed to ask for,” says Mandhane. “Our policy [since 2016] says there’s a duty to inquire. So, if an employer believes there may be a disability, the employer may ask about the disability-related issue.”
A duty to inquire about accommodation needs was created under the OHRC’s revised policy of 2016. “Accommodation providers must attempt to help a person who is clearly unwell or perceived to have a disability by inquiring further to see if the person has needs related to a disability and offering assistance and accommodation,” according to the OHRC’s Policy on ableism and discrimination based on disability.
The type of medical information that accommodation seekers may generally be expected to provide to support an accommodation request includes:
• that the person has a disability
• the limitations or needs associated with the disability
• whether the person can perform the essential duties or requirements of the job, of being a tenant, or of being a service user, with or without accommodation
• the type of accommodation(s) that may be needed to allow the person to fulfil the essential duties or requirements of the job, of being a tenant, or of being a service user, etc.
• in employment, regular updates about when the person expects to come back to work, if they are on leave.
Although an employer is entitled to receive this type of medical documentation from a doctor, it is not entitled to “ask for more confidential medical information than necessary because it doubts the person’s disclosure of their disability,” the policy states.
“Where more information about a person’s disability is needed, the information requested must be the least intrusive of the person’s privacy while still giving the organization enough information to make an informed decision about the accommodation. . . .
“Generally, the accommodation provider does not have the right to know a person’s confidential medical information, such as the cause of the disability, diagnosis, symptoms or treatment, unless these clearly relate to the accommodation being sought, or the person’s needs are complex, challenging or unclear and more information is needed. . . . ”
However, “If the person does not agree to provide additional medical information, and the accommodation provider can show that this information is needed, it may be the case that the person seeking accommodation could be found to not have taken part in the accommodation process and the accommodation provider would likely be relieved of further responsibility.”
The OHRC’s Policy on ableism and discrimination based on disability policy on ableism and discrimination based on disability, released in September 2016, updated the policy and guidelines on disability and the duty to accommodate of 2001; at 99 pages, it is two and a half times as long as the version released 15 years earlier. While the 2001 policy concerned itself with disability accommodations in employment, the updated policy also looks at case law relating to disability discrimination and accommodation in housing and schools, including universities, says Mandhane.
“We’re trying to acknowledge that in the last 15 years . . . we have seen peoples’ request for accommodation extend beyond the employment sector,” she says. “We want to make sure people are being accommodated consistent with the [Ontario] Human Rights Code. Obviously, what we consider a disability has changed a lot in the last 15 years.”
Today, there is increased recognition of mental health problems and chemical sensitivities including those that can prompt acute allergic reactions such as anaphylaxis, Mandhane notes. “These have been recognized as disabilities attracting attention under the Code. . . . We also bring an intersectional lens to unique disabilities” faced by elderly, trans and racialized people, she adds.
Feds seek to settle suits from '60s Scoop 'dark chapter,' Canadian Press
Steve Nash gym owners sue former basketball superstar, Canadian Press
|Criminal lawyer Kathryn Wells calls the program 'a very good step to recognizing what people participating in the administration of justice go through.'|
Yasir Naqvi revealed the new Juror Support Program yesterday afternoon at the John Sopinka Courthouse in Hamilton, Ont. He said jurors play an integral role in the justice system and their communities, and that while it can be rewarding, “serving on a jury is not an easy job by any measure.
“Sometimes, evidence and testimony they have to consider can be graphic and deal with very violent crimes,” he said, adding that exposure to such material can have a lasting traumatic effect that impacts their daily lives and mental health.
“They very much deserve the support for the work they do,” he added.
All jurors will be given a brochure after their trial is done to walk them through the program.
Also present for the unveiling of the program was Mark Farrant, a juror support activist who suffered from PTSD after serving as foreman on the jury of a disturbing 2014 case in Toronto. Naqvi, when new to his role as attorney general, saw Farrant on the news and heard his story of the aftermath of his jury duty.
“It moved me,” Naqvi said. “I contacted my staff to ask for what supports were there for jurors. People like Mark, who have done their duty and then came forward and talked about challenges they face, that’s why we’re here today.”
Naqvi said people are now “far more understanding and thoughtful and sophisticated about talking about mental health challenges.”
Farrant says he saw a gap — and experienced a gap — that impacted him dramatically. He started advocating for more support because he “just didn’t want this happening to somebody else.” He’s talked to jurors from coast to coast and has identified a need not only in Ontario but nationally.
“Even the provinces that purport to have a program in place — they all need to be dusted off and re-evaluated,” he says.
Kathryn Wells, a lawyer with Wells Criminal Law in Toronto, says she thinks the news is fabulous and “a very good step to recognizing what people participating in the administration of justice go through.
“I can’t tell you how many times I’ve done jury trials and seen jurors in tears,” she says. “I think it’s a very, very enormous task for a person to sit in judgment of someone else even without really disturbing evidence. It’s a big job. But then if you impose [upon them] cases where the subject matter is really traumatizing, there’s no question that there’s going to be an impact for some people.”
In response to an audience member’s questions, Naqvi said Hamilton was chosen in part because of the Tim Bosma case, one of the biggest trials in the city’s history. Dellen Millard and Mark Smich were found guilty of first-degree murder in the death of Bosma, a 32-year-old father who disappeared after leaving with the two men to test drive a truck he was trying to sell. The court established that Bosma was shot in his truck by the men and his body was incinerated at Millard’s family farm.
“Hamilton has seen some difficult cases — the Bosma trial is a very good example — so we felt it was appropriate we came to Hamilton to talk about the program and make sure the jurors that were involved in that trial would hear,” Naqvi said.
The program offers up to eight one-hour counselling sessions — four being offered initially, and an additional four if the juror feels they need it — with no out-of-pocket expenses.
Wells says eight sessions sounds “really substantial” considering that the majority of the population doesn’t have benefits, but Farrant says there needs to be a mechanism in place to handle the people who need more help than a pre-determined amount of counselling can provide.
“I fully support the program — it’s the right program, it’s the right approach,” he says. “We just have to ensure that there’s flexibility in the program.”
Farrant says he met with the attorney general and his staff privately to discuss the program, and he brought up his concerns.
“They need a baseline, and they have that baseline, and they’re very cognizant that there will be cases that have to be addressed outside how the program is framed,” he says.
He adds that any additional services beyond the eight sessions have to be offered at no cost as well, as OHIP doesn’t cover the cost of counselling.
Naqvi said during his speech “this is just the beginning” and there will be ongoing assessment and evaluation of the program as it gains momentum. He also said he was comfortable that the cost of the program would be absorbed into the existing ministry budget, with a better idea after intake numbers are established.
“I’m always available for them to bounce ideas off me, and they have done that, and I’m grateful for that,” Farrant says. “I’ve been pretty open and honest along the way. I’m looking forward to working with them on this and being there, in whatever form they require.”
The government hired a third party, Morneau Shepell, to provide the service and ensure confidentiality. Former jurors can call the support line at 1-844-JUROR-ON or visit the program’s website for more information.
When requesting counselling, jurors will need to provide the location of the court where they served on the jury, the dates the trial ran and name of the case. The next step is matching the juror with a qualified counsellor in the area. Jurors can choose to receive counselling over the phone, via email or by videoconference.
Montreal man arrested for alleged hate speech on social media, Canadian Press
- Technology is changing the game, but so is geopolitical impact
NEW YORK — While tech disruption and innovation in the legal market is causing law firms and in-house departments a lot of pain as they try to adapt, no other one trend has been quite so vexing as recent political challenges including the new administration in Washington and the Brexit vote.
|ALM analyst Daniella Isaacson says political and economic disruption is number one issue for legal leaders.|
“What we consistently hear is that the impact of political and economic disruption is their single biggest concern,” said Daniella Isaacson, senior analyst with ALM Intelligence, who speaks regularly with managing partners, general counsel, vendors and consultants in the legal sphere.
Isaacson was speaking together with Nicholas Bruch, senior analyst also with ALM Intelligence, as part of the opening address to the Legaltech conference in New York City today.
Bruch said the biggest concerns for firms and in-house departments are around things they can’t control and regulations are just one big piece of that puzzle.
“If you look across the world, you see this very clearly if you look at the two biggest markets — the United States and the U.K. — what we see is uncertainty. I think it’s safe to say there is a lot of uncertainty over the new administration,” said Bruch, referring to the Trump presidency in Washington. “In the U.K., it’s Brexit that is driving it. We also see a similar story in the EU, in the Middle East and in future of U.S.-Asia trading.”
The global CEO of Dentons, Elliott Portnoy, who appeared in a video as part of the presentation, agreed that regulatory uncertainty is good for business but comes at a time when firms face many other challenges.
“The most consistent theme I hear from clients is that their greatest concern is regulatory uncertainty in key markets and that does create more work for our firm and others but comes at a tricky time for the industry,” he said.
Given this world of uncertainty is one in which law firms and increasingly many in-house legal departments live and work, and as lawyers are also risk managers, the state of the world should not be viewed as a threat but an opportunity to serve as advisers in difficult times.
“For law firms, it means more questions, more clients, more billable hours. For law departments, it’s an opportunity to showcase your abilities to the broader organization,” said Isaacson.
Portnoy said firms like Dentons need to be “far more nimble, far more agile in adopting the same innovation strategies that our clients are using.”
New competitors providing new services are also a threat — not just other law firms competing with each other but also in-house departments competing with law firms and service providers particularly who are creating something entirely different with artificial intelligence, blockchain and machine learning.
Bruch also noted that the in-house departments are also under pressure and are rapidly changing how they source services. There are companies leveraging non-lawyers, virtual lawyers and contract lawyers. ALM Intelligence data shows 80 per cent of law departments are in-sourcing more and 40 per cent are decreasing their use of law firms, while 70 per cent are increasing their use of alternative service providers.
Isaacson said firms can save millions by moving to shared service centres or from re-engineering staffing.
At an earlier session with ALM editors, top trends discussed included a move at some firms with regulatory practices taking on social media work for clients in a model that doesn’t require the staff involved to bill hours. This signals a move toward firms generating revenue in different ways and having to determine how partners take that revenue home.
Requests for proposals also continue to determine who gets work. Often defined as “Flintstone or Jetson” firms — those who demonstrate they are using technology and better understanding how a company works are winning over the Flintstone firms. In one instance, a firm lost a bid when it proposed addressing certain matters by going to trial even though the company had expressed no interest in arriving at a solution that way.
Analytics were also highlighted as a big driver for law firms this past year. There is also a trend toward consolidation in the e-discovery sector, while cloud technology has seen a slower adoption. It is expected that artificial intelligence will pick up speed in the next year or two.
Legaltech continues tomorrow and Thursday.
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