Commercial Law Strategy Activities Report 2002

II. PROFILE RAISING

It was recognized early in the life of the Strategy by the members of the Steering Committee that governments will be more responsive to our recommendations for modernization and harmonization of commercial law where we can demonstrate real need and stakeholder support. For this reason, raising the profile of the Strategy and of the Conference among various stakeholders was initially determined as the top priority.

As significant success was achieved in raising the profile of the Strategy among stakeholder groups during the Strategy's first year of activities, during its planning meeting for the past year the Steering Committee determined that the projects themselves should be the new top priority. Profile raising activities, although still critical to the success of the Strategy, were identified as the second priority for the Strategy.

Profile-raising activities have continued to involve meetings and various forms of communications with stakeholders (i) to inform them of the projects being undertaken by the Strategy, (ii) to garner and retain their support, (iii) to solicit their suggestions on current and possible future projects, (iv) to obtain the names of experts and possible volunteers and (v) to encourage them to promote the Strategy with government representatives in the different jurisdictions.

Development and Nurturing of Relationships with Stakeholders

As noted above, the identification of stakeholders with an interest in the Strategy in general has continued to be a key activity. However as new projects have been initiated, we have had to direct a more focussed attention to the accurate and complete identification of stakeholders with a particular interest in specific new projects. This identification is essential to permit us to ensure that our consultations will involve all interested parties.

The "generic" stakeholder groups we have identified with an interest in the modernization and harmonization of commercial laws in Canada continue to be business leaders and organizations, lawyers (both in private practice and in corporations), academics (in legal and business faculties), consumer advocates and government policy advisors. Efforts to identify appropriate representatives of these groups and to nurture the relationships established continue on an on-going basis. After a little over two years we appear to have achieved a high level of credibility among stakeholders. The relationships established are friendly and cooperative and involve regular exchanges of information on subjects of mutual interest - both formally and informally.

Support for the goals of the Commercial Law Strategy among the identified stakeholders continues to be overwhelmingly favourable. There is a broad consensus in the business, legal and other communities regarding the undesirable consequences flowing from perceived deficiencies in Canada's economic and legal infrastructure. These undesirable consequences include incremental costs flowing from lack of harmonization of laws and regulations and barriers to the growth of companies, investment and employment in Canada.

a) Lawyers

Lawyers continue to play an important role in the Strategy. We are fortunate to have a number of distinguished and well-respected lawyers in private practice actively participating on the Steering Committee of the Strategy and in a number of our working groups. (See Appendix "F" for those on the Steering Committee and Appendix "D" for those on working groups.)

During the past year I have also reached out to the broader legal community through formal (see Appendix "C") and informal presentations. Lawyers continue to express an interest in becoming involved in our projects, either formally as members of committees or, more frequently, informally by providing input on proposals and drafts. I have developed a list of these lawyers across the country by area of specialty and am making efforts to keep them informed of developments in those areas of commercial law of particular interest to them. As they work in the commercial law "trenches" on a daily basis, they have much knowledge and wisdom to impart to us and I want to ensure that we capitalize on this. The distribution of our newsletter and the use of other mass mailings (e.g regarding our press release on the new franchise project, Justice Canada's consultation paper on the UNIDROIT franchise legislation and Industry Canada's consultation paper on charge-backs) have allowed us to disseminate information regularly and to solicit relevant input. With respect to the franchise project, there was such an overwhelming interest in being involved in the project that we have established a dedicated listserv which will permit the working group to obtain regular feedback from franchise lawyers and members of the industry.

(b) Business Organizations

During the past year, I have met and had discussions with many business organizations and associations. Appendix A provides a list of those contacted to date. These organizations and associations continue to be very supportive of the goals of the Strategy and generally view harmonization and modernization of commercial laws as of vital importance to the health of the Canadian economy. One need only glance at the daily press in recent months to note this interest. A recent example relates to the ever-increasing calls for harmonization of Canada's securities laws (see June 26 issue of the Globe &Mail).

As I identify the issues of importance to individual organizations, I add them to the list of those to be consulted on specific issues. This will help ensure that we consult with the appropriate groups as we carry out our research and make recommendations for uniform acts. I cannot emphasize enough the extent to which the credibility of the Strategy and the continued support of key stakeholders depend on our conduct of meaningful consultations. We must provide our stakeholders with ample opportunity and time to provide their input and we must be responsive to this input. Only then will we be able to rely on their support when we ultimately make recommendations for the implementation of new uniform acts to governments.

My meetings with these organizations continue to confirm my belief that they would reap significant benefits by greater cooperation among themselves. Very frequently their issues are similar yet, to a great extent, they toil in isolation from one another. The Commercial Law Strategy can make an important contribution to legal reform in Canada by acting as a catalyst to mobilize these groups to act in concert where appropriate.

(c) Academics

Among the groups we have identified as stakeholders are academics in the legal and business faculties. During the past year, I have met with a number of them and can attest to their continued interest and support.

This support is evidenced by the willingness of academics to serve on the Steering Committee of the Strategy (Professors Vaughan Black, Rod MacDonald and Rod Wood) and on our various working groups noted throughout this report. (See Appendix D for members of working groups). When I was putting together the working group for the Strategy's new franchise project, I wrote to the deans of all law faculties seeking volunteers from their staff and very quickly obtained the services of Professor James Lockyer of the Université de Moncton. In addition to enriching the working group with his experience as an academic, Jim brings to us the very practical skills and insights into the political process which he acquired as a member of Premier McKenna's cabinet in New Brunswick for over 10 years. I should add that we also appear to have attracted the interest of academics from other jurisdictions with respect to this particular project (i.e., Australia and the United Kingdom).

The Steering Committee continues to be mindful of the need for our projects to be successful in order to permit us to continue to draw from the pool of talent in Canadian universities. Time is a precious commodity and professors (and others) are not interested in becoming involved in a project which does not achieve its goal - broad stakeholder support and ultimate implementation in the jurisdictions. Bearing this in mind, the Steering Committee is committed to moving ahead only on projects which truly benefit from broad stakeholder support and are therefore more likely to lead to uniform acts broadly enacted by governments. For this reason, as noted above, the sale of goods project has been deferred to a later date.

The final point I wish to make with respect to our academic supporters relates to funding. This continues to be important to the Strategy in light of the trend for professors to be compensated for research of the type we require. Funding is also an issue with respect to disbursements as we intend to resort to broader consultations and surveys with respect to our various projects.

I again attended Professor Ziegel's annual workshop on commercial and consumer law at the University of Toronto in the fall. On this occasion, I had the opportunity to discuss issues relating to the Commercial Law Strategy with a number of academics from across Canada and beyond who share an interest in law reform, including harmonization in federal states.

d) Consumer Advocacy Groups

The Steering Committee of the Commercial Law Strategy recognizes that Canada's commercial laws cannot be reformed without due consideration being given to the interests of consumers. Governments will only support our efforts to develop a modernized and harmonized commercial law infrastructure if it addresses the needs and interests of consumers as well as those of other sectors.

In this regard, the Steering Committee continues to benefit from the participation on our Steering Committee of Philippa Lawson, Counsel with the Public Interest Advocacy Centre ("PIAC"). In addition, Philippa and I keep each other informed of issues touching upon the Strategy and the interests of consumers on a more informal basis.

PIAC continues to receive funding under Industry Canada's Contributions Program to permit it to provide informed consumer input to the Commercial Law Strategy.

As many of you know, the province of Québec has a very active consumer protection sector. During the past year I was able to meet with representatives of two consumer advocacy groups in this province. The first is Action réseau consommateur (now called l'Union des consommateurs), a non-profit organization involved in the protection of consumer interests in Québec since 1978. This group is very supportive of the goals of the Strategy and has since sent a letter formally endorsing it. Current priorities of the Strategy of particular interest to this organization are those relating to implementation of legislation on cost of credit disclosure and commercial liens. They also noted that they would be very supportive of harmonization projects relating to privacy and standards (i.e. seals of approval).

The second group with which I met is the Montréal-based Option consommateurs, one of the province's most influential consumer protection organizations. This organization is particularly interested in our projects on e-commerce, section 347 of the Criminal Code, PPSA, commercial liens, cost of credit disclosure and, when we initiate it, sale of goods. Other areas where this group would support harmonization projects are privacy and the regulation of the distribution of financial products.

e) Endorsements

The formal endorsement of the Strategy by stakeholder groups continues to be critical for our success. During the past year I have continued to nurture the relationships established over the two prior years with organizations which have endorsed the Strategy. This has permitted me to keep them informed of our progress and to solicit from them their input on our current activities as well as on areas which their members would want us to pursue by initiating future projects.

In our meetings, I have reiterated the commitments of Canada's federal, provincial and territorial governments to implementation of the Strategy. I have noted the increased financial support being provided to the Strategy by many jurisdictions as a testament to this commitment. However, in my discussions with them I have also emphasized that this continued government support is very much dependent on strong stakeholder support for the goals of the Strategy.

Since my report to you last year, we have received letters endorsing the Strategy from the following organizations: the Canadian Council of Chief Executives (formerly the Business Council on National Issues, l'Union des consommateurs (formerly Action Réseau Consommateur), the Association of International Automobile Manufacturers of Canada (AIAMC), the Candian Manufacturers and Exporters (CME), the Insurance Bureau of Canada (IBC) and the Non-prescription Drug Manufacturers Association of Canada (NDMAC). This brings the number of organizations formally endorsing the Strategy to 25. This public demonstration of support significantly adds to the credibility of the Strategy. Ministers, deputy ministers and government policy advisors continue to be interested in seeing the list of endorsers which I distribute at all my meetings with them.

Last year I had reported that the Toronto Board of Trade had put forward for consideration by the members of the Canadian Chamber of Commerce at their annual general meeting in September 2001 a resolution supporting the Commercial Law Strategy. This resolution was in fact adopted by the Chamber with the overwhelming support of its members. I was informed by the Chamber's Senior Vice-President for Policy that the resolution became one of the Chamber's major policy platforms for the year ending September 2002. This was a very positive event for the Strategy and should have contributed to an increase in its visibility within governments since last September.

In addition to the new endorsement letters referred to above, a number of others are expected from additional organizations with which I have met. These must follow their internal corporate procedures before committing themselves to the endorsement. (See Appendix "B" for a complete list of current endorsers and a brief description of each organization.).

Ongoing Communications with Stakeholders and Others

We continue to use a number of vehicles for regular and effective communications with our many stakeholders and supporters as well as with others who have a general interest in being kept informed about our activities. These communication tools also assist us in maintaining our profile and visibility in the interested sectors.

(a) Commercial Law Strategy UPDATE

Our newsletter, The Commercial Law Strategy UPDATE, continues to be our most successful communications tool. It is now distributed electronically to over 1200 recipients - both organizations and individuals. The Internet has significantly enhanced our ability to maintain regular contact with those upon whose continuing support we are so dependent. It is an inexpensive and highly efficient tool which allows us to profile the work being done to a broader audience and, where appropriate, solicit comments from interested readers. It also permits us to give some public recognition to the many volunteers without whose active participation our projects could not be carried out. The recipients of the UPDATE continue to include lawyers (in private practice, inhouse and in government), legal and business academics, government representatives, business and consumer organizations and others.

The feedback received in response to our newsletter continues to be very encouraging and is evidence of the broad support in Canada for modernization and harmonization of commercial law.

In addition to distributing the newsletter to the individuals whose names I have collected in our mailing list, we continue to be fortunate to be able to distribute it through other means with the assistance of a number of groups. Thus the Law Societies of Nova Scotia, Prince Edward Island and Saskatchewan distribute it to their members. In addition, the Commercial Law Strategy UPDATE is being posted on the web sites of a number of organizations. These sites include those of Retail Council of Canada (www.retailcouncil.org/govrelations/ULCC - over 7000 members), the Canadian Corporate Counsel Association (www.cancorpcounsel.org - over 5000 members), the CBA National Business Law Section (www.cba.org/CBA/Sections/Bus/Commercial_Law.asp - over 4000 members), the Association des Juristes d'Expression Française de l'Ontario (www.webnet/~ajefo) and the CBA Québec Division (www.abcqc.qc.ca - over 3500 members). Some of these organizations, as well as the Canadian Bar Association, have also agreed to include on their web site a link to the Conference's website. This significantly increases the visibility of the Strategy and the Conference and the number of "hits" on the Conference's web site.

Some of you may recall from my report last year that the distribution of the UPDATE has not been without its technical challenges. We have continued to experience problems in this regard. Our distribution from a Visto account - a form of freeware similar to hotmail, ran into difficulties as organizations strengthened their internal procedures in an effort to minimize viruses. Indeed more and more organizations (e.g., Royal Bank) have initiated procedures to specifically block email sent from free ware. To address this, we tried to distribute the newsletter using my Rogers account. After several aborted attempts I was advised by Rogers that my mass mailings constituted "spam" and that I was in breach of my agreement with them! Finally, with the assistance of the technical support people at Ken Morlock's firm, we linked my computer to a new server for the purpose of these mass mailings. This appeared to solve the problem

However in more recent mailings we encountered additional difficulties. As the battle against viruses escalated, corporations began to restrict the receipt of mass mailings (regardless of their source) which contained attachments, on the assumption that there could be a virus in the attachment. The individual recipients are not given an opportunity to read my message and decide whether they want to open my attached newsletter as the entire e-mail is frozen automatically by the new procedures. This happened with mail I sent to some government addresses as well as to large corporations.... even my mail to Ken was blocked from getting through! The challenges continued. In order to resolve this latest problem, it was determined that my newsletter could not be distributed as an attachment but that it should be posted on a web site and a hyperlink to it included in my message. This appears to be working ..... for now. As the web site being used for this purpose is that of the Conference, it should significantly increase the number of "hits" on the Conference's web site.

(b) Improved Web Site

At last year's meeting, I noted that the Conference had retained the services of a web designer to improve the Conference's web site. During the past year the web master at the British Columbia Law Institute has been busy posting a number of additional documents and information relating to the Conference and the Commercial Law Strategy on this enhanced web site

The web site now provides readers with access to a variety of information regarding the Strategy. This includes summaries, reports and working papers relating to current projects as well as the identity of the members of various working groups. Also posted are copies of current and past issues of the Commercial Law Strategy UPDATE and details on the organizations which have formally endorsed the Strategy.

As previously noted, links to the web site have been established by a number of organizations and the site is also being used to post Press Releases and to distribute the newsletter.

(c) Articles and Public Speaking Engagements

Profile-raising activities during the past year have also involved the publication of articles on the Commercial Law Strategy and speaking engagements across the country. (See Appendix "C" for a list of these.)

Through these more public activities we are able to reach a wider audience and better ensure that those interested in the Strategy are kept informed and accorded additional opportunities to provide input on our activities and recommendations.

(d) Report to Council of the Canadian Bar Association

The Canadian Bar Association, which was originally responsible for the creation of the Uniform Law Conference of Canada in 1918, continues to be one of the Strategy's strongest supporters.

In 2001, a report from the Uniform Law Conference was added to the agenda of the annual meeting of the Council of the Canadian Bar Association. This was in recognition of the relevance of the Strategy to Canadian lawyers. A report to Council will again be made at its meeting to be held in conjunction with the CBA's annual meeting in London, Ontario in August, 2002 - just before our Yellowknife meeting. We are grateful to the executive of the CBA for providing us with this opportunity to profile the work of the Conference and of the Commercial Law Strategy. In so doing, we have joined the ranks of a number of other legal organizations which provide annual reports on their activities to Council. These include the Law Commission of Canada, the Canadian Superior Courts Judges Association, the Canadian Association of Provincial Court Judges, foreign law associations and the like.

(e) Volunteers and Interested Individuals

During the past year expressions of interest in participating in our various projects have been received from a number of lawyers and academics from across Canada. I have continued my practice of collecting their names and particulars to ensure that they receive information on topics of particular interest to them and to expand my data base of volunteers and experts for future projects. The number of volunteers for the franchise project was particularly overwhelming, underlining the need for and interest in uniform franchise legislation in Canada.

The handling of requests for information and distribution of materials, both electronically and in hard copy, is an increasingly time-consuming activity. I look forward to the day when the Strategy is provided with an office and administrative staff to carry out this important function in a more efficient manner.

(f) CBA and NCCUSL

As part of my responsibilities I am required to maintain a liaison with a number of other legal organizations. One of these is the Canadian Bar Association whose National Business Law Section has formally endorsed the Strategy. This Section has invited me to write regular reports on the Strategy for inclusion in the newsletter which it distributes to its more than 5000 members nationally. This past year, the Section also invited me to attend the December meeting of its executive to make a presentation on the activities of the Strategy. Ken Morlock also participated in this meeting.

As part of this ongoing relationship with the CBA, throughout the past year I corresponded with the executive of the national and provincial sections to keep them informed of developments and to solicit substantive input on our projects (e.g. the survey on section 347 of the Criminal Code) and to request volunteers (e.g. franchise project). I also met with Daphne Dumont, Past President of the CBA, during my trip to Prince Edward Island in March, 2002. Daphne was largely responsible for having our report added as a standing report on Council's agenda and we are grateful to her for this support.

In October at the invitation of Milos Barutciski (chair of the CBA International Law Section), I attended the 13th annual meeting of the executive of CBA's National Sections with Justice Canada representatives. On this occasion I had the opportunity to discuss the Strategy with a number of government lawyers and private practitioners. During his luncheon presentation, Kevin Lynch, Deputy Minister of Finance, identified Canada's economic infrastructure as one of the five elements required to permit the Canadian economy to flourish in the future. During the question period, I suggested that this criterion should be expanded to include Canada's legal infrastructure and referred to the undesirable consequences of lack of harmonization and modernization of commercial laws. In response to my comment, Mr. Lynch remarked that in fact Canada's economic infrastructure is its legal infrastructure - a theme which I have continually pursued in my presentations to government representatives when discussing the merits of supporting the Strategy financially and otherwise.

After the lunch, I spoke to Mr. Lynch about the Strategy. As he is an economist, I inquired into his awareness of the availability of economic studies quantifying the financial cost to Canada flowing from lack of harmonization and modernization of commercial laws. I noted that I am frequently asked for data on this by government ministers, deputy ministers, policy advisors and others but had not yet been able to locate relevant data. Mr. Lynch suggested I contact André Sulzenko, Senior Assistant Deputy Minister of Policy at Industry Canada for this information. Although I later did speak to and correspond with Mr. Sulzenko, I was unable to obtain this type of information. As it is a recurring subject, I will include it in my action plan for next year and contact business faculties for assistance in this regard.

With respect to NCCUSL, I have had helpful communications with my counterparts during the past year on an number of topics. These have included issues relating to budget, procedures for retaining researchers, the work of drafting committees and the like. More recently, when we issued our press release announcing the initiation of a project to develop a uniform franchise act, King Burnett (President of NCCUSL) offered to pay for the attendance at one of the meetings of our working group of the chair of the NCCUSL committee which dealt with this subject in the early 1980's. The working group will be taking him up on his offer in the fall.

In addition, NCCUSL continues to provide me with materials on developments relating to UCC articles which are relevant to the Commercial Law Strategy. Where appropriate, I have forwarded copies of these materials to individuals with an interest in their subject-matter. NCCUSL also recently requested permission to create a link from their web site to the Conference's web site. This should increase the number of "hits" on our site. We will also create a link on the Conference's web site to that of NCCUSL.

Although in the past two years I attended NCCUSL's annual meeting, due to our current budgetary circumstances I have had to cancel my registration to attend the NCCUSL annual meeting in August 2002.

In addition to these contacts with our colleagues at NCCUSL, international contacts this past year have involved exchanges of information with law professors in the United Kingdom and Australia.

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