Law Times

August 10, 2015

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Page 2 August 10, 2015 • Law Times NEWS Springer declined to com- ment on Henderson's reasons for not joining Littler Mendel- son. According to the Canadi- an Law List, James D. Hender- son currently works for labour and employment firm Gros- man Grosman & Gale LLP. Law Times was unable to reach him last week at the firm. The fact that Kuretzky Vas- sos Henderson's lawyers have joined another firm isn't likely to surprise many in Toronto's labour and employment law scene, says Lior Samfiru, head of the labour and employment group at Samfiru Tumarkin LLP. "I think it was reasonably well known in the employment law legal community that the firm was looking to do some- thing over the past couple of years in terms of merging, amalgamating," he says. However, the move has Samfiru scratching his head given that the two firms have historically focused on oppo- site specializations within the labour and employment field. "Kuretzky Vassos is an excellent firm — great reputa- tion, been doing employment law for many, many years. However, they're more identi- fied as being on the employee side, whereas the American firm are exclusively a man- agement-type firm. Not to say these lawyers aren't perfectly qualified to do excellent work on the management side, but it wouldn't be a natural leap that I would make. . . . So that I found somewhat surprising." Levitt agrees, saying that by joining a firm that specializes in management work, the for- mer Kuretzky Vassos Hender- son lawyers may have to give up a considerable part of their business. "From Kuretzky Vas- sos' perspective, I guess, the other offices of this firm would refer whatever Canadian work they have to the firm, so it's a good marketing ploy that way. But other than that, I don't see any advantage to it," he says. "I would guess it would damage them if they have to give up their employee side." Springer confirms that management work will con- tinue to be the focus of Littler Mendelson's new Toronto of- fice but she insists the move will still be a gain. "We up here in Canada will now have a client base from the U.S. which is incredibly sub- stantive and formidable and serves as a wonderful spring- board for us to attend to the cli- ents' needs in their Canadian premises," she says. Doug MacLeod, principal at the MacLeod Law Firm, says the Toronto lawyers might be able to charge higher hourly rates to the global corporations they would serve as part of Lit- tler Mendelson. The relative complexity of Canadian labour laws, says Samfiru, can make expand- ing into Canada attractive to U.S. firms. "An employment law practice generally would be more profitable in Canada than the U.S. simply because there are more laws governing the employment relationship here in Canada, so there's more work for lawyers to do in helping to navigate those laws," he says. Both Levitt and Samfiru, however, say the arrival of the U.S. giant is unlikely to shake up the Toronto labour and em- ployment scene. "I think it's business as usual," says Samfiru. "We have some pretty big giants here ourselves in Canada with some huge, huge corporations, and I'd be very surprised if the American firm would be able to pry any of those clients from the big firms here. I don't nec- essarily see them being more than a small- to-mid-sized player here." LT Draft your own customized documents with O'Brien's Encyclopedia of Forms, Eleventh Edition, Corporations, Division II. This service provides, both in looseleaf and electronic formats, a comprehensive collection of documents that can be easily adapted to suit your clients' needs. It covers the federal jurisdiction and the provinces of Ontario, British Columbia, Alberta, Saskatchewan, Manitoba and Nova Scotia. 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Prices subject to change without notice and subject to applicable taxes. 00218EB-A43204 CANADA LAW BOOK ® Available risk-free for 30 days Order online: Call Toll-Free: 1-800-387-5164 In Toronto: 416-609-3800 "I think the opt-in consent approach along with tough penalties are a model for other countries," he says. It's too soon, however, to be able to fully evaluate how successful the law has been in achieving its goals, according to Geist. "It's still early days. I think there was always a recognition that the law was not expected to eliminate spam, period, and in terms of broader impact, I think there was a recognition it would take some time," he says. "That said, it has had an impact one year in. The law is doing what it was expected to do: try to reduce the amount of spam Canadians get, try to ensure that legitimate companies and organizations ob- tain appropriate opt-in consent for sending electronic marketing, and have an enforcement arm that was prepared to enforce where companies failed to meet those requirements." But the law is vague, says Sookman, with a "hugely broad" defini- tion of what it prohibits, and it imposes unnecessary burdens since productivity will suffer as a result. "It's one of the biggest causes of red tape among businesses," he says. "By putting limitations on commercial speech the way [the law] does . . . you are decreasing the efficiency and proper functioning of a market system. The cost throughout Canada for all of that is huge." Tricia Kuhl, a partner at Blake Cassels & Graydon LLP who has advised numerous clients on the anti-spam act, says the law has been much more burdensome for some companies than others. Com- panies undertook a significant amount of work to get compliant in the six months or so before the law came into force, she says, and the work is still ongoing. For some companies, she says, the law has meant hiring full-time employees dedicated to ensuring compliance. Many companies are closely watching the enforcement measures taken by the Canadian Radio-television and Telecommunications Commission and other agencies and reassessing their compliance programs accordingly, she says. Because the law meant changes to CRTC regulations as well as amendments to the Competition Act and the Personal Informa- tion Protection and Electronic Documents Act, enforcement falls to three federal agencies: chief ly the CRTC but also the Competition Bureau and the privacy commissioner. The CRTC has received more than 340,000 spam-related com- plaints since the act came into force, according to CRTC spokes- woman Patricia Valladao. The CRTC enforces the law mostly through notices of violations or undertakings. Of these, it has issued three so far: a notice of vio- lation this March against 3510395 Canada Inc. (doing business as Compu.Finder) with a monetary penalty of $1.1 million; an under- taking also in March against Plentyoffish Media Inc. that resulted in the company paying a fine of $48,000; and another undertak- ing against Porter Airlines Inc. that resulted in a $150,000 fine. The CRTC has a number of other investigations underway at various stages, the results of which it will make public when they're complete, says Valladao. The commission has also issued a number of warning letters that it doesn't make public, she notes. But by far the largest enforcement action under the act so far has been a $30-million application by the Competition Bureau against auto rental companies Aviscar and Budgetcar and their parent com- pany, Avis Budget Group Inc. Because these companies had used electronic messages to communicate information the bureau alleged was false or misleading, they fell under provisions of the Competi- tion Act in force as part of the anti-spam act, the regulator said. In its annual report for 2014 released earlier this summer, the Of- fice of the Privacy Commissioner announced it had spent the second half of 2014 trying to "identify possible address-harvesting and spy- ware cases for investigation" under the anti-spam law. "By year-end, we had launched our first investigation and were evaluating other potential cases," it stated. However, the agency isn't releasing details about those cases. "Due to confidentiality provisions in the legislation, we are limited in what we can say at this point in time," says Tobi Cohen, a spokes- woman for the Office of the Privacy Commissioner. The commis- sioner may release details about the address-harvesting investigation once it concludes "if he considers it to be in the public interest to do so," she adds. LT opinions divided on new federal law Continued from page 1 U.S. firm's management focus a change for local lawyers Continued from page 1

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