Welcome to the 21st edition of Capital Perspectives: Ottawa's
Business Law Update
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Featured Cartoon
In this Issue:
Featured Cartoon
Introduction
Featured Articles
Expert Spotlight
Cases of Interest
Events
News
Events
August 31, 2016 | Ottawa
CPC Flip Flop Day
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As part of our fundraising
partnership with the
Canadian Paralympic
Committee, the Ottawa office,
together with all of Fasken's
Canadian offices, held a fun
summer event on Aug. 31
where all lawyers and staff
were able to wear to work
CPC flip flops that they had
purchased to raise funds for
CPC. We are proud that our
fundraising efforts will help
some very worthy athletes be
able to compete on the
international stage – in Rio
and beyond. Go Canada go!
Introduction
Welcome to the 21th edition of Capital Perspectives: Ottawa's
Business Law Update. This authoritative resource provides legal
insight and perspective on the issues that matter to private and
public sector organizations operating in the National Capital
Region.
Each issue of Capital Perspectives draws on the Fasken Martineau
Ottawa team's expertise in a variety of specialized areas of law to
MORE EVENTS
help our readers make sense of the events, issues and trends that
impact their organizations.
News
In this issue, we feature...
CETA and UK­Canada Trade: What Brexit means for
Canadian businesses
The U.K.'s referendum decision to exit the European Union has
gathered a lot of attention worldwide and left Canadians
questioning its impact on the Canada­EU trade deal, CETA. Clifford
Sosnow and Alexandra Logvin discuss how the time frame for the
U.K.'s withdrawal from the EU might impact CETA implementation
and U.K.­Canada trade, procurement and investment opportunities.
Strikes and Lockouts…Lawful or Not? What You
Need to Know
August, 2016 | Ottawa
Fasken Ottawa cleans up in
annual Best Lawyers
ranking
Fasken Martineau once again
did well in the annual ranking
of The Best Lawyers in
Canada, released in August.
Best Lawyers is the oldest
and one of the most
respected peer review guides
to the legal profession
worldwide. In all, 133 Fasken
lawyers, from 44 practice
areas, were included.
activity that could land you in hot water.
Most notable for the Ottawa
office was Jay Kerr­Wilson,
who leads the firm's
Communications Industry
Group. He was one of 10
Fasken lawyers to earn a
Lawyer of the Year distinction.
He was also recognized for
his work in the
Communications Law and
Intellectual Property Law
categories.
Collective bargaining in education: Negotiating in a
Other Fasken Ottawa lawyers
recognized included:
When is a strike by employees, or a lockout by an employer, legal?
When is it not? Sophie Arseneault and Marie­Andrée Richard
define the multi­step process that's required at both the provincial
and federal levels to engage in a lawful strike or lockout, as set out
in the Canada Labour Code and the Ontario Labour Relations Act.
They also delve into examples of unlawful strike and lockout
two­tiered system
After two years of tension between unions, school boards, trustees'
associations and the Ontario government, what can we expect for
the 2016 back­to­school period? Partner Claire Vachon explores
the special labour relations regime under which Ontario school
Clifford Sosnow,
International Trade and
Finance Law
Stephen Acker,
Communications Law
boards have operated since 2014 to find the answer.
Laurence Dunbar,
Communications Law
Lobbying laws must be enforced through
Leslie Milton,
Communications Law
meaningful penalties, not symbolic gestures
In a cutting editorial, Partner Guy Giorno, a recognized expert on
the law of lobbying, takes aim at the City of Ottawa's anemic
enforcement of its lobbying bylaw, citing the recent case of Sinking
Ship Entertainment and the $2­million mega­playground at
Mooney's Bay Park.
In addition…
We recap recent events and news, and profile Stephen Acker as
the featured lawyer in our Expert Spotlight. Stephen's
communications practice focuses on spectrum policy and
J. Aidan O'Neill,
Communications Law
Stephen Whitehead,
Communications Law
Robert Chapman,
Corporate Law,
Technology Law
Virginia Schweitzer,
Corporate Law,
Technology Law
Patrick McCann,
Criminal Defence
Claire Vachon, Labour
radiocommunication issues, but he's also a fair hand with a
Claire Vachon, Labour
and Employment Law
harmonica and taking his turn in the limelight.
Who is Fasken Martineau Ottawa?
Summer 2016 | Ottawa
Fasken Martineau is a leading international business law and
litigation firm. With more than 700 lawyers, the firm has eight offices
in Canada, the United Kingdom and South Africa. Our practice
includes every sector of business, industry and government.
The Ottawa office is home to 27 lawyers, of which almost half are
ranked as leading practitioners by Chambers, Lexpert, Best
Lawyers in Canada and other prestigious and independent
publications.
Fasken Martineau's team of lawyers in the nation's capital offers
broad expertise in the following areas of law: business;
communications; labour and employment; litigation; international
trade; procurement; anti­bribery and corruption; competition;
copyright; accountability and ethics; and white collar crime. We
also engage in a number of related areas of practice, including
constitutional and administrative law, human rights, official
language rights, privacy and government relations. We provide our
clients with seamless access to the broad range of professional
services that Fasken Martineau offers on a national and
international basis.
Stephen Whitehead
Partner
[email protected]
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Featured Articles
Jay Kerr­Wilson takes lead
of Fasken Martineau's
Communications Industry
Group
The Ottawa team's Jay Kerr­
Wilson has been appointed
Leader of Fasken's
Communications Industry
Group, while Ottawa's Laurie
Dunbar will continue as Chair
of the group.
Jay has extensive
communications and public
law expertise, with an
emphasis on copyright. Prior
to joining Johnston & Buchan
in 2006 (which became the
Ottawa office of Fasken
Martineau), Jay served as
Vice­President, Legal Affairs
at the Canadian Cable
Telecommunications
Association. While there, he
acted on behalf of the
Canadian cable industry in
copyright, Internet, telecom
and broadcasting
matters. Over the course of
his career, Jay has
represented Canadian and
foreign communications
companies on issues related
to copyright law reform;
telecommunications
companies in the Supreme
Court of Canada's rulings
relating to copyright; and the
communications industry in
appeals and judicial reviews
of the CRTC and the
Copyright Board of Canada
decisions.
Fasken's Communications
Industry Group has achieved
a Band 1 ranking from legal
industry research firm
Chambers & Partners in each
of the last nine years.
CETA and UK­Canada Trade: What Brexit
means for Canadian businesses
Clifford Sosnow, Ottawa | Alexandra Logvin, Ottawa
MORE NEWS
The results of the U.K.'s recent referendum to exit the European
Union have gathered a lot of attention worldwide. Canadians, too,
have questioned its impact on the Canada­EU trade deal,
Comprehensive Economic and Trade Agreement (CETA). What
has Brexit done to trade between Canada and the U.K.? Can CETA
be expected to apply? What should Canadian businesses expect
of U.K.­Canada trade, procurement and investment opportunities?
Primary Contacts
The inquiry is understandable given that although CETA was
agreed upon "in principle" a while ago, it has not been in force yet
or applied "provisionally" (i.e. tentatively applicable to the parties'
relations).
Stephen P. Whitehead
Ottawa
+1 613 696 6873
[email protected]
FULL ARTICLE
Strikes and Lockouts…Lawful or Not? What
You Need to Know
Sophie Arseneault, Ottawa | Marie­Andrée Richard, Ottawa
A labour dispute which develops into a strike or a lockout can
Clifford Sosnow
Ottawa
+1 613 696 6876
[email protected]
cause financial disruptions to an employer's business. In a
unionized environment, employees are legally entitled to strike and
management is entitled to lock out its employees. However, not all
strikes and lockouts are legal. One of the most effective ways to
shut down a strike or lockout is to prove its illegality. It is for this
reason that we have highlighted the key steps which employers
and unions must follow to ensure that a labour dispute remains
Claire Vachon
Ottawa
+1 613 696 6870
[email protected]
within the scope of the Canada Labour Code or the Ontario Labour
Relations Act as well as examples of unlawful strikes and lockouts.
FULL ARTICLE
Collective bargaining in the education sector:
The difficult implementation of a 2­tiered
system
Guy W. Giorno
Ottawa
+1 613 696 6871
[email protected]
Claire Vachon, Ottawa
Rotating strikes, partial withdrawals of services, pressure tactics of
all kinds … In the Ottawa region as elsewhere, the last two school
years were marked by tension between unions, school boards,
trustees' associations and the Ontario government.
Alexandra Logvin
Ottawa
+1 613 696 6895
[email protected]
This is not surprising given that the working conditions of a
significant number of employees in Ontario's education sector for
the 2012­2014 period were imposed by legislation that has since
been held unconstitutional. Since the difficult 2012 round of
bargaining, it seems that each school year brings its own share of
upheaval. In the spring of 2015, rotating strikes decreed by the
Ontario Secondary School Teachers' Federation (OSSTF)
threatened a number of public secondary schools in the Ottawa
area. Last fall, many local schools were impacted by non­teaching
Sophie Arseneault
Ottawa
+1 613 696 6904
[email protected]
Marie­
Andrée
Richard
staff work­to­rule campaigns. These employees refused to operate
the schools' security systems, forcing the boards to leave school
Marie­Andrée Richard
Ottawa
+1 613 696 6854
doors unlocked for visitors, thereby causing considerable concern
for all those affected.
ABOUT OUR TEAM
FULL ARTICLE
Lobbying laws must be enforced through
meaningful penalties, not symbolic gestures
Guy Giorno, Ottawa
The recent case of unregistered lobbying by Sinking Ship
Entertainment is further evidence that Ottawa's lobbying by­law
needs teeth.
Don't get me wrong. Mayor Jim Watson and City Council showed
great leadership in 2012 when they made Ottawa the first
Canadian city to choose to adopt a comprehensive lobbying
transparency law. The public is better off when lobbying of City
officials is both transparent (disclosure of who is trying to influence
which municipal decisions) and ethical. FULL ARTICLE
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Expert Spotlight
Expert Spotlight: From blues harmonica, to
hard liquor and wireless spectrum policy
Fasken Martineau You could call it a family tradition – switching career paths at a time
when most people are just hoping for stability. After a dozen years
in the federal public service, Stephen Acker decided he'd had
enough of "writing and re­writing memos that were fiddled with and
signed by others" and returned to school to study law.
He was inspired to make the change by Robert Buchan, one of the
founders of Johnston & Buchan, the boutique law firm that merged
with Fasken Martineau in 2007 and became the core of Fasken
Martineau's Ottawa office. In his late 30s at the time, with two young
children at home, Stephen was also inspired by his father, who had
switched medical fields at a slightly older age.
FULL ARTICLE
[email protected]
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Cases of Interest
Fasken Ottawa counsel 'friend of the court' in
terrorism case
On Sept. 3, 2015, Pat McCann was appointed amicus curiae on a
Federal Court proceeding in the Nuttall and Korody terrorism case
which recently concluded in Vancouver with a stay of proceedings
as a result of entrapment by the RCMP.
In the course of the entrapment application, the defence brought a
disclosure application for the production of CSIS files. However, the
recently enacted Section 18.1 of the CSIS Act required a further
application to the Federal Court to be heard by a specially
designated judge of that court. The new section prohibits
disclosure of the identity of a CSIS human source or information
from which the identity of a human source could be inferred. An
exception is where, in a prosecution, the disclosure is essential to
establish the accused's innocence.
The 18.1 proceedings are held mostly in camera in the absence of
defence counsel. The procedure allows, however, for the
appointment by the Court of a Top Secret­cleared amicus curiae
(literally, "friend of the court") to challenge the positions taken by
counsel for the attorney general (AG) and help balance the
process.
After several preliminary issues were addressed, the designated
judge determined that the new section was not retroactive and that
it protected only human sources who became sources following the
enactment of Section 18.1. Since all the events in the Nuttall case
came before the enactment, the judge found she did not have
jurisdiction to hear the application.
The issue then reverted to the trial court in Vancouver where the
disclosure application proceeded with the trial judge finding that
the material sought was likely relevant to the entrapment
application. Before being ordered to deliver the material to the
defence, the AG brought an application under Section 38 of the
Canada Evidence Act to prohibit disclosure if it would be injurious
to international relations or national defence or national security.
That application was heard by the same designated judge of the
Federal Court who dealt with the 18.1 application. On March 1,
2016, the judge appointed Pat McCann and another individual as
joint amici curiae to act in a similar role as the Section 18.1
proceedings.
Defence counsel had expressed on­going concerns over the delay
in obtaining the requested disclosure. The 38 process was close to
completion in early April when a jurisdictional issue arose which
required an adjournment of several weeks. At that point the
defence decided to abandon its application for CSIS records and
proceed with the case without them. Although a risky decision, it
obviously didn't affect the outcome of the entrapment claim.
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All information and opinions contained in this publication are for general
information purposes only and do not constitute legal or any other type of
professional advice. The content of this publication is not intended to be a
substitute for specific advice prepared on the basis of an understanding of
specific facts. Any reliance on this information is at your own risk.
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