Legal Feeds in February 2019

Testifying in front of a parliamentary committee Wednesday, former attorney general Jody Wilson-Raybould described the alleged attempts by the prime minister’s office to interfere in the prosecution of SNC-Lavalin as “inappropriate but not illegal.”

In the wake of Wilson-Raybould’s remarks, Conservative leader Andrew Scheer called for an RCMP investigation into “numerous examples” of obstruction of justice.

But is what allegedly happened truly obstruction of justice? Obstructing justice is defined under s. 139 of the Criminal Code as, “Everyone who willfully attempts in any manner to obstruct, pervert or defeat the course of justice in a judicial proceeding.”

The approval of a third-party funder for a class action brought by Tim Hortons franchisees against their franchisor is a win for the plaintiffs' side class action bar and part of the increased acceptance of third-party funding in Canada, say lawyers.

JB & M Walker Ltd v. TDL Group, where the court approved third-party litigation funding, will give class action plaintiffs more choice of representation, says Andrew Winton, a partner at Lax O’Sullivan Lisus Gottlieb LLP.

“It makes class action more acceptable to not just well-funded firms but to other firms who would otherwise be willing to take on class action cases but are concerned about the contingencies,” says Winton, whose firm often acts on a contingency fee basis and in class actions and acted last year for litigation funder Bentham IMF in an approval for third-party funding motion in the Loblaws bread price-fixing case David v. Loblaw.

The loss of about $190 million of investor money resulting from the death of the founder of crypto-currency exchange Quadriga CX demonstrates the regulatory gaps and necessity for better oversight, say lawyers active in the area of blockchain technology.

“I think Quadriga CX is going to be the case that turns things in Canada and kick-starts regulation because this problem could very well happen again,” says Chetan Phull, founder of Smartblock Law PC, a cyber-tech law firm in Toronto focused on blockchain, data privacy, IT contracts and litigation.

“Quadriga CX, I think, will trigger Parliament to act and regulate crypto-exchanges more like banks,” he says.

Not every communication made between a lawyer and their client is subject to solicitor-client privilege — only legal advice is covered, and when it comes to the alleged pressure the Prime Minister’s Office may have put on former justice minister Jody Wilson-Raybould to not prosecute SNC-Lavalin, that would not necessarily be privileged, ethics lawyers say.

Wilson-Raybould was the chief law officer of the Crown, the government’s lawyer and if the government is seeking legal advice, like a lawyer helping a client with an expectation of confidentiality, those conversations are between them. But the AG has more than one role and in her role in deciding whether to prosecute offenders, the government is not her client and communications with officials about that are not subject to solicitor-client privilege, says Gavin MacKenzie of MacKenzie Barristers and author of Lawyers and Ethics: Professional Responsibility and Discipline.

“In some situations, clients and lawyers communicate with each other for multiple purposes, so the exercise of determining whether specific communications are privileged may require a meticulous review of the communications. Ms. Wilson-Raybould was wise to seek the advice of esteemed counsel to assist in this process,” MacKenzie told Legal Feeds via email.

Snoop Dogg’s logo could be counter to Cannabis Act marketing rules, says David Lipkus, a partner at Kestenberg Siegal Lipkus LLP and trademark agent.

The Toronto Maple Leafs have opposed a trademark owned by celebrity Snoop Dogg’s cannabis brand, but apart from its alleged similarity to the team’s logo, the brand, on its own, may also fail to be compliant with Canada’s regulations governing the marketing of cannabis products, say IP lawyers.

The Cannabis Act prohibits marketing that appeals to minors or has a direct or indirect endorsement or testimonial.