Canadian lawyers are aware that events and societal changes happen much faster than legislators and policy makers can possibly keep up with. Previously unimaginable situations arise that demand some kind of legal opinion, which creates a fertile ground for new niches or specialties.
While large firms specializing in corporate, family, criminal and real estate law will always occupy the biggest space in what we might call the legal economy or ecosystem, a certain percentage of new lawyers will gravitate towards social justice issues such as environmental protection, fraud prevention, illegal drug use and freedom of speech. These fields are both emerging, as well as attracting younger lawyers due to the contemporary nature of the work. These are challenging, current issues that need to be addressed by a fresh set of eyes. The OBA surveyed members in a variety of practice areas to identify some of the specialties that should be attracting the attention and interest of ambitious young legal minds.
The emerging B Corp environment will need advisors
Many energy, resource extraction, finance and even high-tech firms have struggled with the public perception that driving shareholder value and bottom line profitability is their only raison d’etre. A study by the Business Development Bank of Canada shows that 97% of Canadians make an effort to buy local, 60% consider themselves “ethical consumers” and 33% take time to research a company’s businesses practices.
While global corporations are content to create corporate and social responsibility (CSR) departments to appease both shareholders and the public, it’s the “B Corp” structure that is seen as the gold standard for ethical behaviour. The B Corp Declaration of Independence “envisions a global economy that uses business as a force for good.” These purpose-driven, for-profit corporations create benefit for all stakeholders, not just shareholders. Stakeholders can include everyone from employees and contractors to the communities and even countries where they do business.
Dennis Tobin of Blaney McMurtry LLP specializes in assisting companies wishing to adopt B Corp language in their charter. “This area of law is true-blue corporate work and yet not well understood. B Corps are created because of the vision of their founders and owners not on the recommendation of lawyers. My advice to young corporate lawyers is to make sure you have a couple of specialties that are related to one another; don’t expect a lot of benefit work but there are a lot of interesting companies who want advice about it,” he said.
“I have already been approached by a number of young lawyers and students and I expect the OBA and CBA will form separate committees for B Corps someday. B Corps, like all corporations, seek to source investment so there are financing opportunities. Also, these companies often have CSR programs and unique employment contracts and policies that need input.
“Companies will need advisors who understand the need to stay focused on the principles that will sustain the company and the profit of the company. The advisors will need to be able to give directors and founders the confidence that they can stick with their vision and resist the temptation to focus on short-term results. Lawyers that are well versed in corporate law and understand the principles of the B Corp movement will attract the best companies as clients.”
Cannabis legalization changes the legal landscape
With the legalization of cannabis across Canada, lawyers have had to change their focus from criminal law to corporate and even real estate law.
“The advice that we were providing to our clients prior to the cannabis legalization date was, make rules governing the use of cannabis now to avoid having to grandfather in any existing cannabis users. Some of our clients took that advice, and others did not – because the use of recreational cannabis is an entirely new area of law in Canada, with little to no existing body of case law,” said Cindy Yi of Loopstra Nixon LLP.
As Yi, a business lawyer who focuses on commercial real estate, pointed out, every apartment building is different and has its own often highly nuanced set of rules and regulations, and issues such as second-hand smoke might vary widely across the city of Toronto, for instance.
“The future of cannabis legalization is still very uncertain but what is clear is that there is going to be a lot of new science, research and development, a new body of case law that will emerge from inevitable litigation, and hopefully some fluidity as Canada positions itself among other jurisdictions across the world that have legalized recreational cannabis,” Yi said.
One thing is certain, lawyers will still be required to clear the air when it comes to pot.
New system for resolving disputes in construction will need specialized help
In Ontario’s fast-growing cities, it’s hardly surprising that lawsuits between developers, contactors, architects and sub-trades ripple throughout the real estate market. Later in 2019, a new real-time dispute resolution system will focus on streamlining and resolving lawsuits during the construction phase as opposed to when it’s finally completed as is the case right now.
Torys LLP lawyer David Outerbridge, whose practice includes an emphasis on the construction sector, said he believes this change will benefit both large and boutique firms. “This will be a relatively high-volume, fast-paced, real-time dispute resolution process. Clients will need quick, specialized help on short notice. Boutique law firms or groups within larger law firms that can provide this type of rapid response will be in demand — in fact, paralegals and consultants will be able to take advantage of these changes as well.”
Aging population and demographic shifts will require specialties elder law
Baby boomers’ beliefs and value systems have driven enormous social change in the past 50 years and, now that they’re retiring, new challenges will emerge. The problem starts with demographics, since right now the population of seniors exceeds new births.
“We have not planned for these changes and they’re already upon us,” says Kimberly Whaley, a Toronto lawyer whose practice is dedicated to representing the rights of Ontario’s burgeoning seniors’ community.
Canada’s seniors are also living longer and experiencing age-related cognitive and physical decline that, when combined with a lack of Internet savvy or technological skills, can make them targets for many forms of elder abuse.
“Family and community are not what they once were. Individuals work in a global community and are often not in the same country,” Whaley said. “Elder law is relevant worldwide and includes everything from estates and trusts to powers of attorney, guardianship, divorce and family law. There is more work than we as a country and within communities will be able to handle. Our health-care system will be insufficient to accommodate what we are facing.”
The need for trained legal professionals is acute, Whaley said, but noted that lawyers receive no formal training on issues of capacity and vulnerability, whereas health professionals must consistently upgrade their skills to stay current with best practices.
While many aspects of the Canadian economy have been disintermediated by technology, there’s no doubt that societal change usually results in more employment opportunities for members of the legal profession. You can also add artificial intelligence, Internet privacy, environmental law and trade and tariff legislation to the previous categories as likely candidates for attracting bright legal minds in the years ahead.