Year 2020 has been one of change, disruption and surprise for the practice of law just as much as it has been for any other profession. We enter the new year with reason for optimism but also too with the certainty that the pandemic will leave a lasting impact. While we will find a new normal in how we live, work and play, the old normal, in many respects, may never return.
With that in mind, we asked our team to consider the most notable impacts on their areas of practice in 2020 and to share their expectations for 2021.
The Fasken Ottawa office is home to 32 lawyers with broad expertise in a variety of areas of law. Here are what 12 of them had to say.
2020: The Year That Was
Sophie Arseneault, Associate, Labour & Employment
"A majority of labour and employment matters settled without moving to a hearing or a trial. Litigation files for labour and employment are rarely complex but are more numerous than in general civil litigation. Before the pandemic, it was in-person mediations and hearings that led to a settlement. The use of videoconferencing has changed the game in that area. Where before parties in Ottawa had to travel to Toronto, Sudbury or Timmins, the labour and employment world quickly adapted and rendered videoconferencing the norm, which is faster and cheaper."
Paul Burbank, Associate, Communications Law
"2020 was always going to be a big year for telecommunications and broadcasting in Canada (and not just because COVID was going to accelerate the shift to remote work). In January, the Broadcasting and Telecommunications Legislative Review (BTLR) Panel released its long-awaited report offering the government of Canada a roadmap for reform with respect to its communications law framework. My view is that a significant number of the recommendations in that report were either too ambitious or not a priority because of a lack of demonstrated need (including many of the recommendations with respect to telecommunications). It did, however, lay the groundwork for the Government of Canada to introduce the most significant reforms to the Broadcasting Act in almost three decades."
Laurie Dunbar, Partner, Communications Law
"March 16, 2020 was a watershed date. Fasken suddenly started operating remotely. Over 750 lawyers and our staff, across Canada and internationally, started working from home and are still doing so, for the most part. That we were able to do this in an efficient and technologically sound manner, was a surprise to me, although I knew that the firm had expended a lot of resources over the past few years upgrading our technology and systems to be on the leading edge. Eight months later, we have proven that this is not only possible – but has been a success. Courts have also adjusted by holding virtual hearings and our clients have continued to call and meet with us virtually in this new environment. It is hard to imagine how this could have been possible just a few years ago."
Andrew House, Counsel, Co-Leader – National Security
"Federal and provincial emphasis on securing critical infrastructure and domestic supply of goods and services essential to the health and safety of Canadians has driven my practice throughout the past year, culminating in the launch this fall of Fasken's National Security Group."
Julia Kennedy, Partner, Corporate/Commercial
"2020 has made a lot of clients and lawyers scrutinize their contracts with new eyes, especially the 'force majeure' clauses. These clauses address what the parties do in the event of an 'act of God, war, terrorism, natural disaster' etc. Few of these clauses explicitly addressed global pandemics or the related governmental actions, such as closing borders, or disruption to supply chains that we have seen first-hand. Sometimes parties can be allowed to delay performance or even be forgiven for non-performance under a force majeure clause. We are all a lot more aware of the variety of ways in which a global situation outside the control of contract parties can be disruptive, so it is up to us who are drafting new agreements to make sure the remedies are tailored to the particular contract and how the risk should be shared among the parties."
Alexandra Logvin, Counsel, Commercial Litigation, Arbitration
"With respect to commercial litigation and arbitration, this year has been a huge turning point for the practice as it concerns using technology in particular. Virtual appearances (including trials) and electronic filings – which were untraditional, unpractised or unknown in the pre-COVID time – have now become, and I am certain will continue to be, the norm in civil litigation. The change has been so sweeping that it caused, for example, the process being altered/better regulated, with the Ontario Rules of Civil Procedure being amended to add news rules on e-filings. The judiciary and courts have quickly adapted to and, apparently, like the new reality." (See our previous issue of Capital Perspectives.)
Peter Mantas, Partner, Leader – Procurement, Litigation
"I have to say videoconferencing for 2020. It has allowed us to interact more with our clients, ironically, and to enhance the interactions with our clients who reside outside of Canada. Our international practice has been strengthened."
Marcia Mills, Counsel, Procurement, Co-Leader – National Security
"As is usually the case, a significant disruption is required before a significant move forward will happen. After decades of traditional businesses such as law firms, flirting with the concept of whether remote offices can work, we've made the transition. The large majority of my clients are located outside of Ottawa, so working with them via phone and video technology is not a shift; the improvement of the technology will better support our interactions (e.g. technology has caught up to the way we are already doing business).
"Movements such as Black Lives Matter made it very clear that we all have to re-establish or find our voices on issues of equality and representation. To be honest, that is going to be the most critical long -term impact on my practice."
Kai Olson, Associate, Political Law
"The COVID-19 pandemic has profoundly disrupted businesses across all sectors. Indeed, the biggest game-changer for my practice has been the fact that businesses and organizations that previously had little interaction with government are now accessing a variety of COVID-19-related government funding – such as wage subsidies and short-term loans – or lobbying government for the first time. As governments continue roll out new programs and policies, clients should be aware of the political law issues that may arise from communicating with government."
Scott Prescott, Partner, Co-Managing Partner, Communications Law
"The most notable development for my practice in 2020 was the Federal Government's decision to introduce Bill C-10, An Act to amend the Broadcasting Act and to make consequential amendments to other Acts, for first reading on Nov. 3. Among other things, the proposed amendments to the Broadcasting Act will enable to the CRTC to regulate online streaming services to ensure that they make an appropriate contribution to the Canadian broadcasting system. The amendments will also provide the CRTC with a new authority to impose administrative monetary penalties (AMPs) on those undertakings it regulates in order to ensure compliance with the Act."
Stacey Smydo, Associate, Communications Law
"The sudden move to doing everything online this year has caused many Canadians to interact with copyright law in new ways. The sudden rush to move businesses, social activities, entertainment, education and even fitness activities online meant that some of these faced obligations that are entirely new while others simply had to adjust their previous practices. Teachers sharing class materials online, fitness instructors incorporating music into online classes, and musicians and theatre companies giving virtual performances are just some examples of users of copyright-protected works that are navigating how copyright law applies to their specific online use."
Faye Voight, Associate, Corporate/Commercial
"The year 2020 saw the USMCA came into force and the NAFTA replaced. This disrupted the longstanding status quo that existed under the NAFTA. Although, in some cases the USMCA may appear the same as the NAFTA, the USMCA has resulted in definite changes for many businesses." (See our previous issue of Capital Perspectives.)
2021: The Year to Come
Sophie Arseneault, Associate, Labour & Employment
"Before the pandemic, remote work appeared to be reserved for a selected few. Many businesses that may have thought this would be short-lived had to deal with the lack of policies on the subject. Our clients will have to continue to adapt to this new reality in 2021 by developing tangible work-from-home policies, clarifying their employees' obligations with respect to maintaining a safe working environment, maintaining performance at a distance, and responding to increasing demands for accommodation and mental health assistance."
Paul Burbank, Associate, Communications Law
"Two significant pieces of legislation have been introduced and received First Reading in the House of Commons: Bill C-10 (the aforementioned reforms to the Broadcasting Act) and Bill C-11 (referred to as the "Digital Charter Implementation Act" for short, which would create the new Consumer Privacy Protection Act). These pieces of legislations may have significant consequences on Canada's broadcasting and privacy frameworks – especially now when corporations, consumer groups and other interests can leverage the minority parliament situation to seek changes to the legislation.
"Meanwhile, the CRTC is poised in 2021 to provide its decision in its multi-year review of mobile wireless services in Canada, a process that was supposed to be completed earlier this year but was extended in light of the pandemic. COVID-19 made plainly apparent the importance of world-leading telecommunications networks and this can only be assured with world-leading investment. In light of this, the CRTC was right to delay its decision and extend the consultations to ask how the pandemic should shape its eventual findings."
Laurie Dunbar, Partner, Communications Law
"Looking ahead to 2021, I expect the federal telecommunications and broadcasting regulator, the CRTC, to ramp up its processes again. We are still waiting for a decision on the review of wholesale Internet access rates for third-party ISPs, as well as a decision on whether MVNO (Mobile Virtual Network Operator) access will be mandated for cellular carriers. Both decisions will have a big impact on carriers and resellers alike.
"It is also anticipated that Innovation, Science and Economic Development Canada (ISED) will hold its auction of 3500 MHz spectrum in 2021. This spectrum is needed by cellular carriers to fuel their new 5G services that will result in a range of new services for consumers and business users."
Andrew House, Counsel, Co-Leader – National Security
"2021 will see continued vigilance by Canadian governments in regards to foreign ownership of the processes and products that will assist Canada to emerge from the pandemic. Helping clients position their business plans to support critical infrastructure will be key in supporting their continued recovery and growth."
Julia Kennedy, Partner, Corporate/Commercial
"We have yet to see a lot of the effects of the pandemic on businesses and consumer behaviour. Certainly, there has been a huge shift to remote operations for businesses internally and for consumer shopping, and this has led to a leap in widespread technology adoption. In 2021, we can expect lots of new technologies, particularly in telecommunications and IT security, to gain further momentum, with the potential to boost automation of many processes and disrupt others. Where there is this kind of shift, there will be good opportunities for strategic investments, acquisitions and partnerships for forward-thinking companies."
Alexandra Logvin, Counsel, Commercial Litigation, Arbitration
"This new techno environment has prompted stakeholders/participants (clients, counsel, witnesses, experts and courts) to adapt and respond to the process more quickly than ever before. For example, court/tribunal-driven procedural schedules have seen no patience for even the slightest delay. An excuse that a witness (or, to their embarrassment, a lawyer) does not have the right technology has firmly seen no compassion. This leads to an inevitable conclusion that the participants should be prepared to act quickly once the litigation/arbitration race has begun."
Peter Mantas, Partner, Leader – Procurement, Litigation
"Again, videoconferencing. A psychological barrier has been broken. Clients, lawyers and the courts have been forced to experiment with a new way of speaking to each other. And while many of us are understandably looking forward to a return to personal interaction, video is not all that bad. I expect that much more communication will be done by video in the future, bringing with it opportunities, efficiencies and cost savings."
Marcia Mills, Counsel, Procurement, Co-Leader – National Security
"Continued disruption seems too easy of a response, but it is the reality. National security will occupy governments on a world-wide level and influence operational and policy direction in any area involving critical infrastructure. Government purchasing is focused on responding to the pandemic at the human level – assuring available PPE (personal protective equipment), supporting individuals and businesses, and setting up vaccine distribution networks. Once we move outside of crisis response, governments will need to deal with the deficits and create economic stimulus – non-critical and non-essential programs will be impacted and likely reduced, shelved or terminated completely. "
Kai Olson, Associate, Political Law
"A major theme in 2021 will be: what will governments do next? As the pandemic (hopefully) comes under control over the next year, we may see new types of government policy aimed at strengthening our ability to collectively respond to the next pandemic or weather the next economic shock. In pursuing these opportunities, clients of all types should be ready to engage with governments at the federal, provincial and municipal levels."
Scott Prescott, Partner, Co-Managing Partner, Communications Law
"Without a doubt, the major influence on my communications law practice will be the Federal Government's proposed amendments to the Broadcasting Act. Those amendments are expected to be enacted into law in the first half of 2021. After that, the CRTC will have the tall task of exercising its newfound authority by implementing a range of regulations, decisions, orders and policies that will be designed to further the policy objectives of the Broadcasting Act."
Stacey Smydo, Associate, Communications Law
"In 2021, users of copyright-protected works will continue to navigate how copyright law applies to their specific online use. Clients, having made it through the sudden shift, will need support formalizing their processes that ensure compliance with copyright law for the long term. We now know that this trend is here to stay, at least to some extent, and users will continue to find innovative ways to interact with their audiences online. There are likely to be some bumps along the way as new uses emerge that do not fit quite perfectly or that might not have been contemplated in our current Copyright Act – this could ultimately lead to new developments in copyright law to reflect this digital era."
Faye Voight, Associate, Corporate/Commercial
"The influence of a more remote economy will be a major influence on most areas of practice. Specifically, in the area of corporate law, more deals are occurring in a completely virtual environment. This may speed up the adoption of technological tools that support the deal process. For example, innovative tools, such as artificial intelligence programs that support the due diligence process, may become more widespread."
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