Canadian Lawyer

October 2020

The most widely read magazine for Canadian lawyers

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UPFRONT 14 OTTAWA UPDATE NEWS BRIEFS Carbon reference begins SCC's fall session Charter is at issue in multiple appeals, including for large number of criminal matters THE SUPREME Court of Canada's fall session kicked off early this year and with a bang, with the hearings for three provinces' appeals of the constitutionality of Canada's carbon pricing policy. On Sept. 22 and 23, the court heard provin- cial references from Saskatchewan, Ontario and Alberta regarding the federal carbon pricing scheme contemplated under the Greenhouse Gas Pollution Pricing Act, which establishes a set of minimum national stan- dards for greenhouse gas pricing in Canada to meet emission reduction targets under the Paris Agreement. While courts of appeal in Saskatchewan and Ontario found the federal carbon pricing scheme to be constitutional, Alberta's appel- late court did not. All three appellate courts were split 3/2. Canada ratified the Paris Agreement in 2016 and committed to reducing its green- house gas emissions by about 30 per cent below 2005 emission levels by 2030, explains John Georgakopoulos, a partner and certi- fied environmental law specialist at Willms & Shier Environmental Lawyers LLP in Toronto. Also in 2016, the federal government published the pan-Canadian framework on clean growth and climate change, consisting of four main pillars: i) pricing carbon pollution; ii) developing complementary measures to further reduce emissions across the economy; iii) implementing measures to adapt to the impacts of climate change and build resilience and iv) to take action to accelerate innovation ULCC holds first virtual annual meeting In August, the Uniform Law Conference of Canada held its 102nd annual meeting virtually for the first time in its history, addressing matters such as electronic wills, crowdfunding, publication of intimate images, diversity and inclusion and the climate crisis. A policy statement developed by the ULCC, a government- supported organization that works to modernize and harmonize federal, provincial and territorial laws and considers proposals to reform criminal laws, asked members in future "to choose options that minimize the carbon footprint related to their ULCC participation, notably by making environmentally conscious travel arrangements and offsetting their carbon emissions." Tax Court upholds characterization of independent contractor The Tax Court of Canada has upheld the characterization of an instructor as an independent contractor, as commonly intended by the worker and by the institute where he taught. In Insurance Institute of Ontario v. M.N.R., the court found that the control and ownership of tools factors were neutral, but that the chance of profit and risk of loss factors supported a finding of an independent contractor relationship. The decision clarified the proper interpretation and application of the second step in the Connor Homes test. Purposive test applies to construction of patent claims An August Federal Court decision has clarified the approach for how the Commissioner of Patents should construe the essential claims of patent applications. Ruling in favour of the appellant in Choueifaty v. Canada (Attorney General), the court found that the patent commissioner had failed to apply the proper test. Pursuant to s. 13.05 of the June 2015 Manual of Patent Office Practice, patent claims should be construed in the purposive manner described in the cases of Free World Trust v. √Člectro Sant√© Inc. and Whirlpool Corp. v. Camco Inc. Work permits available for visitors with job offers Visitors with a job offer can now apply for a work permit and, upon approval, receive such a permit without needing to leave the country, as a result of a temporary public policy change Immigration, Refugees and Citizenship Canada announced in August. Individuals who have a valid status as a visitor, who were in Canada on Aug. 24 and who have stayed in the country since, who have a valid job offer and who comply with all the other admissibility requirements may apply for an employer- specific work permit. Justice Canada to fund legal information for LGBTQ2 community amid COVID-19 In September, Justice Canada provided $125,784 to Egale Canada to improve access to justice for LGBTQ2 individuals, whom research conducted in April found have been disproportionately affected by the COVID-19 pandemic. The funding, provided through the justice department's Justice Partnership and Innovation Program, is expected to address the increased needs of LGBTQ2 Canadians, including those with intersecting, racialized identities, for public legal education and information amid the public health crisis. Egale Canada, a non-profit organization, plans to use the funding to create webinars in English and French.

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