Law Times

Page 6 December 3, 2018 • Law Times www.lawtimesnews.com Legal heavy lifting needed BY KADY O'MALLEY W hen you think about it, it was probably inevitable. After waiting — pa- tiently, at first, and then less so — for Canada Post and the Ca- nadian Union of Postal Workers to settle their differences at the bargaining table, the federal Liberals marked the one-month anniversary of the start of the rotating strikes by serving notice of their intention to bring in back-to-work legislation to restore regular postal ser- vice while the parties continued to work toward a deal. This was, arguably, the first of a series of broken promises. While in opposition, the Liberals re- peatedly chided the then-Conservative government over the haste with which it would wade into such disputes, although they stopped short of vowing to abstain from such measures if elected. Shortly after taking office, however, the Liberals did pledge to proactively publish Charter statements on bills that could trigger legal challenges over possi- ble rights violations — an initiative that, like so many others, they framed as yet another example of their abiding respect for the parliamentary process. Over the last two and a half years, Jody Wilson-Raybould has dutifully tabled 20 Charter statements, including de- tailed analysis on the con- stitutional issues that could potentially arise as a result of various legislative initiatives. What's more, if her omni- bus bid to overhaul the crim- inal justice system makes it through to the legislative fin- ish line, her current practice will become the law of the land for all future justice ministers and apply to all government legislation. Yet, due to the compressed timeline, the back-to-work bill arrived in the House of Commons without a Charter statement, despite a 2016 Ontario Supe- rior Court ruling that found a similar bill introduced by the Conservatives to end a previous labour standoff at Cana- da Post did indeed breach the rights of workers to strike. For her part, the labour minister promised that a statement would be forthcoming, but it was not, as it turned out, in time to inform MPs before they were obliged to vote on the bill. Thanks to its majority clout, the gov- ernment was able to fast-track the legisla- tion through the House in a single sitting day, although a half-dozen Liberal backbenchers broke ranks to vote against it. But even before the bill landed on the Senate door- step, its occupants had taken note of the conspicuous ab- sence of a comprehensive Charter analysis, particularly within the Independent Sen- ators' Group. With the Senate set to hold a rare Saturday session to review the legislation, independent senators Diane Griffin and Frances Lankin fired off an open letter to the labour minister on the missing material, noting that they had received a "firm commitment" from the government that a statement would be provided. Just after midnight, the promised analysis arrived, but, as quickly became clear during the opening round of de- bate the following day, it failed to live up to the expectations of senators. The bill did eventually pass, of course, although not even close to unanimously, with a sizeable chunk of the indepen- dent caucus voting against it explicitly because of the government's failure to mount a vigorous — and, perhaps more crucially, legally substantive — defence of the constitutionality of the bill. So, what should the Liberals take away from this particular parliamentary episode? In a nutshell: If you're going to com- mit to keeping parliamentarians in the loop on the legal reckoning behind a potentially contentious bill, you can't just cut and paste from the minister's talking points — you (or, at least, your departmental lawyers) actually have to do the legal heavy lifting and produce a document sufficiently rooted in law and fact to satisfy, say, a retired federal court judge, as there are several in the Senate. And, finally, while Team Trudeau may have backed away from its first-year resolutions to avoid using its majority to steamroll its agenda through the House, the prime minister's pledge to transform the Upper House into a fully independent — and independent-minded — reposito- ry of sober second thought has been more successful than anyone — including, quite possibly, Justin Trudeau himself — would ever have predicted. LT uKady O'Malley is a member of the parliamentary press gallery in Ottawa and writes about politics, procedure and process for iPolitics. She also appears regularly on CBC television and radio. COMMENT u EDITORIAL OBITER By Gabrielle Giroday ©2018 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written per- mission. The opinions expressed in articles are not necessarily those of the publisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. Law Times disclaims any warranty as to the accuracy, completeness or currency of the contents of this publication and disclaims all liability in respect of the results of any action taken or not taken in reli- ance upon information in this publication. 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All in all, whatever this 'research' was would be well within the preparation for the motion," said the ruling by Justice Alan Whitten in Cass v. 1410088 Ontario Inc., 2018 ONSC 6959. "There was no need for outsider or third party research. If artificial intelligence sources were employed, no doubt counsel's preparation time would have been significantly reduced." The bench — which is often criticized for not adapting to technol- ogy soon enough — is clearly sending a message that AI is here to stay when it comes to the efficient practice of law. Carole Piovesan, a Toronto lawyer, makes an important point. "What we are seeing from the bench, at least, is that the courts are mindful of the use of this technology and are grappling with what it means for the litigation process," she says. Piovesan is right. Lawyers who are beginning their careers — or well into them — would do well to ensure they are keeping pace technologically with the market's de- velopments. This issue of Law Times looks at resource allocation in different ar- eas, from rulings involving self-represented litigants to the access-to-justice crisis former Ontario Attor- ney General Chris Bentley says exists in Ontario. "Justice is a right of all Canadians. It is entrusted to the profession to deliver. The system that is being delivered to Canadians is not working in the way it needs to work," he says. Those are strong words. Hopefully, technology will help address some of these gaps, not aggravate them. LT The Hill Kady O'Malley Kady O'Malley

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