Legal Feeds Blog
- Plea comes as federal government launches public consultation on digital security
Technology lawyers say they’re hopeful the federal government’s public consultation on cybersecurity will result in a set of national standards for digital safety in Canada.
Technology lawyer Lisa Abe-Oldenburg says that, currently, it’s difficult to advise clients who ask about the level of security standards they should be following to protect their systems.
“There’s really not a lot of legislation we can point to to give them any kind of guidance and comfort,” she says. “It often becomes a negotiation between the customer and the supplier.”
Ira Nishisato, partner at Borden Ladner Gervais LLP, complains of the same issue.
“There are essentially no national standards,” Nishisato says. “From a legal perspective, the issue is always the question of standard of care — to what standard of care could an organization be held to in terms of ensuring the integrity and the security of its system?
“Right now, if you look for what you should be doing, it’s really not a question that avails itself of a straightforward answer,” he adds. “It would be extraordinarily helpful to have some sort of direction in terms of national guidelines or national standards for cybersecurity and cyber-risk management.”
Last week, the federal government announced it would be launching a public consultation “on the evolving cybersecurity landscape” with the goal of strengthening digital safety.
“The government’s cybersecurity review is an opportunity to build Canadian strength and expertise. Canadians spend more time online than people in any other country,” said Ralph Goodale, minister of Public Safety and Emergency Preparedness.
“We need to get really good at cybersecurity — across our personal, business, infrastructure and government sectors — so we can take full advantage of the digital economy, while protecting the safety and security of Canadians, and selling our valuable cyberskills and products into a booming market throughout the rest of the world,” Goodale added.
Current legislation and regulations around cybersecurity lack rigour, according to Abe-Oldenburg.
“We haven’t created any robust security regulations,” she says, noting that even recent legislation such as the Personal Information Protection and Electronic Documents Act falls short of specifying details such as the level of encryption required on personal information collected for commercial purposes.
Abe-Oldenburg also says the government should look at the various risks to which the public is exposed in the age of the Internet of Things, including vulnerabilities that may come with self-driving cars. She adds she’s hopeful the consultation will result in better regulations for products and services.
Lack of software safety standards for autonomous vehicles, for example, could jeopardize personal safety and data, Abe-Oldenburg continues. “If somebody hacks into a system that’s controlling a device, a machine or an automobile, there could be serious repercussions.”
Fraudulent Citizenship callers target people in Charlottetown, Canadian Press
- ‘Better late than never,’ says plaintiffs’ lawyer
Seven years after the Ontario class action lawsuit concerning the Sixties Scoop was launched, it is set to make its way before a judge next week.
|Jeffery Wilson, the lawyer representing plaintiffs in the Sixties Scoop, says the fact the class action is being heard next week is ‘better late than never.’ (Photo: courtesy Kathleen Finlay)|
The Ontario Superior Court is set to consider a summary judgment motion about whether the federal government is liable for the loss of cultural identity of aboriginal children who were removed from their homes in the 1960s.
A Superior Court justice will begin hearing arguments Aug. 23 after years of delays because of a certification battle around the suit. The action was first filed in 2009, but it has seen multiple rounds of appeals concerning its certification.
“Better late than never,” says Jeffery Wilson, the lawyer representing the plaintiffs.
In the so-called Sixties Scoop, government workers removed aboriginal children from their families across Canada and placed them with non-aboriginal foster homes.
Wilson says the Ontario suit has been filed on behalf of 16,000 aboriginal people, who say that their displacement as children robbed them of their cultural identity.
The class action suit claims the federal government breached its fiduciary duties it had to the displaced aboriginal children by not taking reasonable steps to protect their cultural identities.
“Cultural identity is critical to the healthy development of vulnerable aboriginal children which, as a fiduciary, Canada must take into account and take reasonable steps to protect,” the claim said.
The lead plaintiff in the suit, Marcia Brown, was four or five years old when a children’s aid society removed her from her family in northern Ontario, the claim said.
She went through foster homes before a non-aboriginal family adopted her when she was nine.
The claim said that she was denied reasonable contact with her family and community, and lost all connection to her heritage until she was 17, when she returned to try and figure out where she was from.
“This action says . . . is that a lawful wrong and if it is, then what is the remedy to make sure it never happens again and to give redress to these people who lost the core of their identity,” Wilson says.
This week, Indigenous Affairs Minister Carolyn Bennett signalled that the government is open to working toward settling lawsuits across the country that concern the Sixties Scoop.
But despite that, next week’s proceeding is set to go ahead and counsel representing the government filed thousands of pages of submissions this week, Wilson says.
“While I’m not doubting, I’m not questioning the motivations of the government or their sincerity or commitment, I’m just confused,” says Wilson.
Wilson says this case is the first in the western world to ask the court whether the loss of cultural identity is an actionable wrong.
He added that he is confident the suit will not have to go to trial as the evidence before the court will be sufficient enough to make a determination through summary judgment.
“The First Nations people would like [others] to know that a wrong took place and that a remedy should be created to ensure that this kind of a wrong can never take place again to First Nations people.”
Stephen Rotstein has been named chairman of the Canadian Bar Association’s Canadian Corporate Counsel Association for 2016-2017.
|A long-time supporter of the CCCA, Stephen Rotstein wants to encourage members to volunteer their time within the organization and offer their expertise as mentors.|
Rotstein, who is vice president, policy and regulatory affairs and general counsel at the Financial Planning Standards Council, takes over from Frédéric Pérodeau of Montreal.
The past chair of the Ontario chapter of the CCCA, Rotstein says he wants to work on promoting the services the CCCA provides to its more than 4,500 members including tools for career management such as the job site the organization launched a few years ago, and the Certified In-House Counsel designation — a business leadership program for in-house counsel considered to be a kind of mini MBA program.
In a time when the in-house bar has grown substantially, Rotstein says the CCCA plays an important role in offering career management resources and opportunities to help members grow to their next role.
“I remember when I was called to the bar there was really one place we looked for jobs and that was the Ontario Reports. For in-house, there were only ever maybe one or two jobs posted in the ORs. Now, a large number of the jobs advertised are for in-house or government. It’s a great area to be working right now,” he says.
And once in-house, Rotstein says lawyers quickly realize there are skills they don’t have that they need to gain, and in many cases they are working in solo departments or with just one paralegal to support them. That’s when being able to reach out to a community of other in-house counsel becomes important.
“That’s why I got involved with CCCA initially,” he says. “It’s nice to be able to pick up the phone and call others in a similar situation.”
Rotstein wants to see more members volunteering within the organization —something he has done for many years through mentoring and other areas.
“We want to encourage more of our members to share their expertise and connect with each other through mentoring and by speaking on topics they’re passionate about at our events,” Rotstein says. “Our members are full of talent and expertise, and we’ll be working to make better use of that collective wisdom throughout the coming year.”
Despite challenges in certain parts of the country such as Alberta, Rotstein says CCCA membership has been growing year over year.
“I’m always in recruitment mode asking people ‘Why aren’t you a member?’” he says.
Police say Ottawa murder suspect believed to be in Toronto, Canadian Press
Police to investigate fatal shooting of man in Abbotsford, B.C., Canadian Press
U.S. swimmers detained in Rio robbery investigation, The Guardian
|(Left to right) Rod Northey, Renée Pelletier, Johanne Gelinas, with federal environment Minister Catherine McKenna and Doug Horswill. Pelletier says she is ‘excited and honoured’ by her appointment to the review panel.|
Renée Pelletier, managing partner at Olthuis Kleer Townshend LLP, has been appointed to the federal government’s environmental assessment review panel.
Pelletier is of the Maliseet First Nation from Nova Scotia whose practice focuses on aboriginal and treaty rights litigation. A member of the Indigenous Bar Association, Pelletier has worked at Aboriginal Legal Services of Toronto, volunteered for the Native Women’s Resource Centre and was a Native Court Worker at College Park Criminal Court.
Federal Environment Minister Catherine McKenna announced Monday that the four-person panel will deliver a long-promised review of how natural resource development projects are approved in Canada.
Environmental lawyer Rod Northey, partner at Gowling WLG, joins Pelletier, with Johanne Gelinas, former federal commissioner of environment and sustainable development, leading the panel and Doug Horswill, the retired vice president of Teck Resources, rounding out the foursome.
Pelletier says she is “excited and honoured to have been provided the opportunity to contribute to the government’s review of environmental assessment processes.”
The panel aims to “introduce new processes that are robust, incorporate science, protect the environment, respect the rights of indigenous people and support economic growth,” Pelletier says.
“Additionally, the panel is aware of the importance of this review as it relates to the government of Canada’s support of the principles of the United Nations Declaration on the Rights of Indigenous Peoples and its goal of renewing its relationship with Indigenous people and moving towards reconciliation. Further to this end, the panel has been directed by its terms of reference to reflect the principles of the declaration in its recommendations, as appropriate.”
According to a press release, “Panel members were selected based on their knowledge, experience and expertise relevant to federal environmental assessment processes. The Minister also considered the need for diversity in terms of Indigenous, regional and gender representation.”
“The panel had the opportunity to meet with the minister of Environment and Climate Change,” Pelletier says. “We shared with her our goal, which is to deliver to her a robust report summarizing our recommendations and the input we receive from Canadians.”
The panel will take into account industry’s concerns that environmental assessments are too lengthy and complicated, as well as environmentalists’ complaints the process fails to consider the protection of fragile ecosystems.
The panel will also take into consideration other reviews being conducted by Natural Resources, Fisheries and Oceans and Transport Canada.
The panel begins its work, starting with consultation opportunities, next month and is scheduled to finish by the end of January 2017.
Senior IOC official accused of ticket scalping in Rio, Globe and Mail
The Nova Scotia Barristers’ Society will not seek leave to appeal the provincial top court’s finding that its council’s resolution not to accredit Trinity Western University is invalid.
NSBS had made changes to its regulation to allow it to decline accreditation to the Evangelical Christian university’s law school. Like law societies in Ontario and B.C., NSBS took issue with TWU’s community covenant, which requires that members refrain from “sexual intimacy that violates the sacredness of marriage between a man and a woman.”
But the Nova Scotia Court of Appeal found the wording of NSBS’s amended regulation went beyond the regulator’s authority under the Legal Profession Act. On Monday, NSBS announced it has accepted the court’s findings.
“The Nova Scotia Court of Appeal has confirmed that the change that we’ve made is ultra vires, so we’re going to put the regulation back to the way it was,” says Darrel Pink, executive director of NSBS.
Putting the regulation back to its former wording means that if TWU’s law school starts operating, its graduates can article and become licensed in Nova Scotia, Pink also says.
“We’re accepting the finding of the court that we went a little bit too far,” Pink says. “That having been said, we certainly recognize that there are court proceedings in two other jurisdiction — one in B.C, where they’re waiting for a decision from the court of appeal, and of course the likely Supreme Court of Canada appeal out of the Ontario Court of Appeal.
“I think a prudent course of action may be to see what comes out of the other proceedings and that would give us something further to consider,” Pink adds.
The original prerequisite for a law practice licence in Nova Scotia asked for, among other things, a bachelor of laws degree or a juris doctor degree from a faculty of common law at a Canadian university approved by the Federation of Law Societies of Canada.
But NSBS amended its regulation to add a qualifier that says a person meeting this criterion could be licensed, “unless council, acting in the public interest, determines that the university granting the degree unlawfully discriminates in its law student admissions or enrolment policies or requirements on grounds prohibited by either or both the Charter of Rights and Freedoms and the Nova Scotia Human Rights Act.”
However, a lower court found, and the Nova Scotia Court of Appeal agreed, that the barristers’ society has no power to unilaterally determine that TWU unlawfully discriminates in its admission and enrolment process.
“Nothing in the Legal Profession Act authorizes the Society to issue an independent ruling that someone has violated Nova Scotia’s Human Rights Act. Nor does the Human Rights Act, R.S.N.S. 1989, c. 214, as amended, contemplate the society’s intervention,” the Nova Scotia Court of Appeal said, adding also that the Charter doesn’t apply to TWU, a private institution.
“The amended regulation does not merely authorize the council to weigh human rights or Charter values in the exercise of an administrative discretion to promote diversity in the practice of law. Nor does it just say the council may consider a ruling, issued by a tribunal constituted under the Human Rights Act or a court of competent jurisdiction under the Charter, that the university has violated the Human Rights Act or Charter,” the court of appeal also said. “Rather, the amended regulation directs the council to make a free-standing determination whether the university ‘unlawfully’ contravened the Human Rights Act and Charter.”
The court of appeal said the Ontario equivalent of this regulation is “instructive,” and suggested NSBS is free to amend its rules to mirror that of the Law Society of Upper Canada’s. In Ontario, the regulation broadly says only law degree holders from a law school accredited by the Law Society of Upper Canada can be licensed to practice law in that province.
Pink admits NSBS’ council can go back to the drawing board and amend its regulation to look like its Ontario equivalent, but he says it’s “prudent” to first wait and see how the proceedings in Ontario and B.C. conclude.
“At that time, we will see whether council wishes to make another regulation or not,” Pink says.
The Ontario Court of Appeal has upheld LSUC’s decision not to accredit TWU’s law school, and the university has said it will seek leave to appeal that decision at the Supreme Court of Canada.
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