March 7, 2025 • 22 mins
The spectre of trade wars looms as social media announced tariffs threaten to disrupt the Canada-US relationship, but a powerful alternative to the traditional tit-for-tat approach exists. Rather than punishing ourselves with counter-tariffs that make goods more expensive for Canadians, we could follow Brazil's remarkably successful strategy from 2010.
When faced with harmful US cotton subsidies, Brazil obtained WTO approval to suspend American intellectual property protections on pharmaceuticals, chemicals, and entertainment. The threat alone was so effective that the US capitulated, passing corrective legislation and paying compensation. This approach targeted America's post-industrial economy, where true value lies not in manufacturing but in patents, copyrights, and intellectual property.
Looking at our trade history, intellectual property protection forms the cornerstone of agreements from NAFTA to the 2020 USMCA. These agreements dramatically restricted Canada's generic drug industry, extended copyright terms to 75+ years, protected US semiconductor designs, and created digital IP frameworks that primarily benefit American companies. Since these protections exist because of the very agreements being violated through tariff threats, suspending them represents a logical and asymmetrical response.
The beauty of this approach is its win-win nature for Canada – consumers would save substantially on medications, technology, and entertainment while applying maximum pressure to US interests. When auto executives warned of catastrophic consequences from parts tariffs, Trump backed down within 24 hours. Imagine the lobbying pressure from every pharmaceutical, technology, and entertainment giant facing the loss of their international intellectual property protections. As our legal expert notes, this approach has proven effectiveness has legal standing through WTO processes, and would target "most of the US economy" – making it a strategic option Canada shouldn't overlook as trade tensions escalate.
Follow this link for a transcript of the show and links to the cases discussed.
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Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Adam Stirling (00:00):
It's time for a regular segment with Michael
(00:01):
Mulligan from Mulligan DefenceLawyers, legally speaking, on
CFAX.
Morning Michael, how are wedoing?
Hey, good morning, I'm doinggreat.
Always good to be here.
I got a huge amount of positivefeedback the last time you and
I discussed the prospect of, yes, a trade war all of us would
prefer to avoid, but howintellectual property might play
a role in Canada's response.
(00:21):
I see intellectual propertyprotection and NAFTA at the top
of our agenda today.
Michael Mulligan (00:26):
Yeah, that's exactly right, and I must say
it's quite remarkable that youneed to check your Twitter or X
feed by the minute to figure outwho the last advisor was that
spoke to Trump to determinewhether the tariffs are on or
off again, it looks like theycount down to being off again
very shortly, but be that as itmay, of course, now I think, in
the context of all the coverageof that, people are now familiar
(00:48):
with what a tariff is, which isjust a tax paid by somebody who
imports something from anothercountry, right?
Yes, although if Trumpdescribed it as, hey, I'm
introducing a 25% GST on allimports from Canada and Mexico,
that would seem a lot less toughthan putting a tariff on, but
really they're indistinguishable.
(01:09):
Now, the response to that, thetraditional response to that, is
well, you'll put a tax onthings that your people are
buying from somewhere else.
We'll put a tax on our peoplefor things they're buying from
you, right, and so that's thetraditional response to it.
But, as we spoke about before,you're sort of punishing
yourself to get back at theother person, right, by making
(01:31):
things more expensive.
And an alternative approach tothat.
There was a example of how adifferent approach was
successful for Brazil, who woundup with a trade dispute with
the United States over thesubsidy of cotton there.
The US was subsidizing theircotton producers, harming
(01:52):
Brazilian cotton producers, andBrazil responded to that by
bringing a complaint to theWorld Trade Organization, who
gave them approval for.
A unique response to the UnitedStates and the WTO approval for
a retaliatory measure was notto put a tariff on imports from
(02:12):
the United States into Brazil,which would both make things
more expensive for the people inBrazil and, frankly, produce
probably a shrug from the UnitedStates, because it's not that
much going to Brazil in terms ofthe size of the US economy,
right.
But the unique approach thatBrazil took was to get approval
(02:33):
from the WTO to retaliate forthese subsidies by suspending US
patents on pharmaceuticals,chemicals and biotechnology.
It would also have allowedBrazil to restrict copy rates on
music and the audiovisualindustry music films and that
would allow Brazil tomanufacture generic drugs
(02:56):
without paying any royalties toUS drug companies that might own
the patent, or to copy moviesand TVs without having to pay
anything for them.
All of those are, of course,just intellectual illegal
fictions that we've created.
And, in response to the threatto do that, the US in that
(03:17):
dispute with Brazil the threatwas made in 2010, the United
States capitulated and theypassed legislation to stop doing
what they're doing and payBrazil compensation.
And it was just remarkablyeffective because of just how
asymmetrical that is.
It doesn't increase prices forpeople in Brazil.
It would have drasticallydecreased prices for people in
Brazil in terms of medicationand all kinds of intellectual
(03:42):
property, at great cost to theUnited States, and they were so
fearful of it they capitulated.
And that brings me to theagreements that Canada and the
US have had, which Trump is now,at least as of a few minutes
ago, still planning to repudiate, including starting with NAFTA,
which was back in 1994, movingon to the agreement he
(04:06):
negotiated it was entered intoin 2020 eventually and just how
those deal with intellectualproperty and how core that is to
the US economic interests Backat the time NAFTA was
implemented.
A large portion of thatagreement is to try to protect
US intellectual property Because, let's not forget, the US in
(04:29):
many respects is kind of apost-industrial economy, right
Many things, even though theymight have a US company involved
with them aren't actually madein the United States.
They're made, you know, inChina, and what the US has is
they've designed something orthey've got a you know written
some software, or they'vedesigned a computer chip or
whatever it might be.
(04:49):
And so NAFTA lists a wholeseries of categories, including
things like copyright protection.
It required that there becopyright protection for sound
recordings of at least 50 years.
It required protection of likesatellite and other signals.
Trademarks Patents was one ofthe critical ones.
(05:09):
That was a requirement in there.
It added an obligation toprovide patent protection for at
least 20 years from the date offiling and 17 years from the
date of the granting of a patentfor pharmaceuticals, and doing
that killed not killed, butseriously hurt the Canadian
(05:32):
generic drug manufacturingindustry.
Prior to that it was eithershorter or Canada would just
grant mandatory licensing toCanadian companies so they could
produce generic copies of drugsat 10% the price, and so when
that got eliminated we now pay90% more and all that money just
goes to the US company that hasthe patent.
(05:54):
We also added, as part of theresults of that NAFTA agreement,
protections on the industrialdesign of semiconductors and
requirements that they bestopped at the border and not be
allowed to be used.
If those were gone, they couldjust be imported without paying
anything, you know, like NVIDIAchips, for example or
Intel-designed chips.
(06:15):
Yeah, sure, copy away, right.
You order.
Order some up from China orTaiwan or wherever you want to,
and away you go.
Industrial designs Anotherthing they included in there.
They also included arequirement that there be both
border enforcement forintellectual property like
stopping stuff from coming inand criminal criminal penalties
(06:39):
for copyright infringement.
All that is a function of NAFTA.
And then when Trump wanted torenegotiate in 2020, that
agreement, his agreement wasalso focused on intellectual
property and it includedprovisions like moving up that
50-year protection for things to75 years plus the life of the
(07:02):
person for copyright on things.
It included digital protections.
It also very interestinglyincluded and this is something
you may have heard about there'sbeen discussion about the US
removing what they refer to asade minimis limit on imports, and
what that means is that whensomebody mails a package to the
United States or another country, if it's under a certain value,
(07:24):
you haven't had to pay duty onit at all.
And that's the very foundationof those businesses like Timu,
that kind of mails plastic junkto you from China for not much
money, and there was no duty onthose things because they would
ship them over one at a time inthe mail rather than coming over
in a big container, crate orwhatever, and so everything was
(07:45):
under the de minimis level.
Well, that agreement we enteredinto, the US-Mexico Canada Free
Trade Agreement with Trump in2020, compelled Canada to
provide duty-free de minimisaccess for shipments from the US
to Canada of at least $150.
And it speaks about in thepolicy documents surrounding it
(08:06):
how important that is to USbusinesses, so small businesses
being able to ship thingsindividually without cost.
And so that's what's going on,why we have it, and all of that
is a function of thoseagreements we entered into.
It's one of the central concernsof large US corporations,
(08:26):
everything from Intel to everypharmaceutical, to every movie,
studio music producer, bookpublisher and everything in
between.
It is a very, very largeportion of the value of US
companies, and the example withBrazil getting approval from WTO
and Canada has made a WTOcomplaint about what Trump did,
(08:50):
at least recently, and hopefullythere are some members of the
federal government that arelistening to some of this or
considering this as an option,because it is not a matter of
punishing yourself.
It's a matter of reducing costswhile punishing the country
who's imposing tariffs, incontravention of both WTO
(09:10):
obligations and contrary to thespecific agreements we have with
the United States, and so Ivery much hope that there's some
consideration being given to it, because it reduces prices
rather than increasing pricesand is completely asymmetric.
If the US responded in asimilar way to Canada, we would
shrug, I think, in the same waythat the US is likely to shrug
(09:33):
if we add a 25 percent tax toorange juice.
You would just have such greatpushback.
Just have such great pushback.
And you saw, it took less than24 hours for Trump to crumble
when the auto executives showedup telling him that if he
continued with the 25% tax on ortax on auto parts going back
(09:54):
and forth, you know, thepresident of Ford said they
might be able to last a coupleof weeks, and so you can imagine
the sort of pushback you'd getfrom every pharmaceutical
company, chip company, softwarecompany.
It's most of the US economy,and so it's a real Achilles heel
.
There's a proven history of itworking, there's a legal basis
to do it, and the protectionthey receive and the payments
(10:16):
that they're getting for drugsand software and all those
things are a result ofagreements that they've
repudiated.
So hopefully we're being smartand keeping that option in mind
to put very serious pressure onthe US.
Adam Stirling (10:29):
Michael Mulligan with Mulligan Defense Lawyers.
Legally Speaking will continueright after this break.
All right back on the air hereat CFAX 1070 as we continue with
Legally Speaking MichaelMulligan during the second half
of our second hour on a Thursday.
Michael, as we move on to ournext issue, it says not telling
a civil jury that a 75% majorityof them could decide an issue
after three hours ofdeliberation not an error.
(10:52):
So there's a couple ofnegatives in there.
Help me understand this.
Michael Mulligan (11:00):
Sure.
So we spoke before about thefact that we have civil juries
in British Columbia and whythat's a pretty important part
of our civil justice system.
Civil juries criminal juriesare 12 people.
For civil cases though, it'sonly eight, so they're smaller.
And this was an interestingdecision out of the BC Court of
Appeal, and it deals withanother provision of civil
juries that many people, I'msure are just not aware of, and
(11:24):
that particular provision isthat after a deliberation of at
least three hours, a judge mayreceive a verdict based on 75%
agreement of the jurors.
So that would be six.
And the theory of all that isthat you know when you're
charging somebody criminally,it's always proof beyond all
reasonable doubt, right.
(11:45):
And you know there's a civilcase, you're just there on a
balance of probabilities, right?
Did the person probably dosomething that is deserving a
payment of money?
And so we've got a lowerstandard of proof.
And that's why we have smallerjuries, but also why there's
that provision that allows ajudge to receive a verdict of
only 75% of them.
(12:06):
So six of the eight would beenough, but only after three
hours of deliberation.
And so this particular case itwas a claim against ICBC prior
to having no fault.
Fault that's when the accidentoccurred.
(12:29):
The case involved a jury trialand the person involved she was
28 at the time.
She was a nurse and she hadmade a claim following an
accident for various things,including non-pecuniary damages
like pain and suffering rightfrom a serious injury, but also
a claim for lost earnings andlost future earning capacity.
And in Canada those things areusually the bulk of what claims
(12:51):
are.
When somebody is injured andsuffers a loss.
We don't have in Canada, youknow, giant jury awards, like
you might have heard of from theUnited States, millions of
dollars or whatever for pain andsuffering.
Those have all been limited fora long time, not just juries
but judges as well, and so alarge part of jury, a large part
of awards for compensation, areusually for things like lost
(13:14):
capacity to work.
And here the nurse who wasseriously injured.
She claimed this was going toreduce her capacity to earn
money in the future because ofphysical limitations, and the
argument was that she wouldn'tbe able to get as many possible
nursing jobs if employers didn'twant to hire her because of
physical limitations flowingfrom the accident.
That was her argument.
(13:34):
It didn't work.
The jury ordered that shereceive zero dollars for that.
They did award her money forother things, so they were
satisfied.
She was seriously hurt.
She got a total of $122,000,but nothing in terms of loss of
future earning capacity and only$1,200 for loss of past earning
(13:55):
capacity.
So the jury didn't buy that shewasn't able to work and earn as
much money.
Now, the argument she made waskind of a novel one.
On the appeal she said well,the judge was mistaken, because
the judge in there charged thejury.
And the way it works is afterthe jury hears all the evidence
in a case civil or criminal ajudge is required to what's
called charge the jury, not runat them, but instead charge them
(14:18):
in the sense of like tell themwhat they're supposed to do
right, explain the law to them,how they're supposed to reach
their decision.
That's the same in criminalcases as well, and the judge did
that here.
And one of the things the judgesaid in the charge to the jury
was that they had to beunanimous in their decision.
And the argument made on appealwas well, hold on, that's wrong
(14:40):
.
They should have been told thatafter three hours they could
make a decision.
That wasn't unanimous.
That was the argument.
Well, they were misled whenthey were told they all had to
agree and the argument was well,had they been told that they
didn't all have to agree afterthree hours, you know, let's say
six of them wanted to give theinjured nurse money for loss of
future earning capacity.
(15:01):
They could have just, you know,run out the shot clock and then
done that, you know, even if acouple of people didn't agree.
And so they said they shouldhave been told.
That was the argument, thecreative argument.
The Court of Appeal did notagree.
They said that was not an errorand they pointed to several
things, including, first of all,it's not incorrect that at the
(15:21):
beginning they all have to beunanimous.
They pointed to the fact thatthe language is permissive in
terms of receiving a verdict.
That's only 75%, not unanimous,that's only 75 percent, not
unanimous.
And the other thing theypointed out and this arises with
some frequency that the lawyerfor the nurse didn't complain
about the jury charge at thetime.
(15:43):
So if you had a problem withthat, you should have raised
your hand, you know, at the time, but you didn't.
And so, by virtue of acombination of those things, the
judge concluded, or the courtof appeal concluded, there was
no error in not telling the juryabout that.
In fact, there are other thingsthat juries are not told about
at all, which is interesting,like one of the things they're
(16:04):
not told about is they're notgiven any sort of quantum
assistance in terms of figuringout like how much money might
you give somebody for pain andsuffering there's actually some
prohibitions on making specificsubmissions to the jury about
that and the judge gives them nohelp about that.
They have to kind of left tofigure out for themselves.
You know, how much is it worthwhen you have a compound
fracture, or what should yougive somebody when their back's
(16:25):
broken or whatever.
They're just kind of left totheir own judgment about that,
which is interesting.
Or, like in criminal cases,they're not told like what
punishment would be imposed ifthere was a conviction and it
would be prohibited to tell them.
And so you know there are caseswhere juries convict and then
they're just aghast that youknow what punishment has to be
imposed.
Interesting, you know, in thatcase involving the mercy killing
(16:48):
of the man from the prairieskilled his severely disabled and
in pain daughter, issues inunremitting pain for many years.
The jury convicted and thenwere aghast to find out he was
set to go to prison for life,but they weren't told.
So the final comment, just onthe civil jury thing I thought
people might be interested in,is that you cannot have a civil
(17:11):
jury if you're suing thegovernment.
It's primitive.
In fact you didn't used to beable to sue the government at
all.
There used to be this conceptof immunity, like you just
couldn't go to court and sue thegovernment.
We got a thing called the CrownProceedings Act I think it was
74 when it first came inallowing you to do that.
Provisions in that crownproceedings act that allows you
(17:36):
to sue the government, um issection four, sub two, which
says that, uh, they must betried without a jury, which is
very interesting, right?
Uh, so the idea we don't trustthe community, members of the
community, to sue the governmentthey'd all go after the
government not us at least oncivil juries yeah, that's funny
yeah, uh, so we've got one more.
Uh, one more case on the agenda.
Yeah, yeah, we've got fourminutes Definitely, just on
civil juries.
Yeah, that's funny.
So we've got one more case onthe agenda.
Adam Stirling (17:58):
Yeah, we've got four minutes remaining Four
minutes.
Michael Mulligan (18:01):
Okay, so the final case is another BC case,
also fresh out of the Court ofAppeal, and it has to do with
the issue of cryptocurrencymining and getting hooked up to
electricity, and the caseinvolved a company, which is an
odd combination, described as aforestry and independent power
company it's kind of an oddcombination already that wanted
(18:23):
to develop high-performancecomputing facilities that would
need a lot of electricity, andtheir original plan was that
those high-performance computingfacilities for the forestry
company would be doingcryptocurrency mining, and the
(18:44):
concern with that from thegovernment I guess there are
multiple people wanting to hookup to BC Hydro to do
cryptocurrency mining is it usesa whole lot of electricity.
Right, because basically you'vegot huge banks of computers
solving complex mathematicalproblems, which is how some of
those things like Bitcoinoperate, and then they give
those miners quote unquotepayment in Bitcoin for doing
that work.
(19:05):
It just uses a whole lot ofpower and in BC Hydro has a
statutory monopoly.
They provide 95% of theelectrical service in British
Columbia a couple of oddballexceptions, but basically
they're it.
And so the legislation dealingwith BC Hydro one of the
principles in there is the ideaof not discriminating amongst
(19:27):
various users, right, because ifyou can deny somebody power,
you're basically denying themthe ability to do really
anything right in terms ofbusiness, and so you know, that
sort of makes sense, right.
But here the concern was, well,oh my goodness, all those
people want to set up here and Ithink some of that came from
China banning them.
So I think there were a wholebunch of people with a bunch of
(19:50):
these computers that werefinding alternative places with
cheap power to kind of set upand mine cryptocurrency.
To prevent that, the BCgovernment passed an order in
council that, for 18 months,suspended the right of
cryptocurrency companies to gethooked up for electrical service
, and so that brought achallenge to whether that order
in council was valid, giventhose general principles in the
legislation about notdiscriminating against different
(20:11):
people who want to use it.
It didn't work at the triallevel asking for that to be
reviewed, and so they appealedthat to the Court of Appeal,
arguing that that was a mistake.
Now, interestingly, since then,the Order of Council has run
out, the 18 months is gone, andthey replaced it with sort of a
(20:32):
regulation that essentially hasthe same effect, but the thing
being challenged was gone, andso one of the interesting
concepts.
Here was the issue of mootness,and what the Court of Appeal had
to analyze.
There is that courts are notsupposed to deal with issues
that have no effect any longer.
Like you shouldn't be therejust kind of a debating society
about some interesting legalpoint that no longer matters.
(20:52):
And the principle there is ifsomething becomes quote academic
and there's no longer any realdispute, you're just kind of
arguing about something.
In principle, that's not reallythe job of courts.
They've got enough real thingsto be doing.
And it causes other problems ifyou no longer have any real
stake in it or you're reallyarguing for the thing.
Is the adversarial processworking?
And so here the argument from BHydro and the government was in
(21:16):
part well, this is all expired.
The Court of Appeal,interestingly, didn't buy that,
and part of the argument wasthat the forestry mining company
said well, it affected ourposition in the queue to get
hooked up, and they now shiftedgears, saying they still wanted
to create the facilities, butnow no longer for cryptocurrency
, but instead for artificialintelligence and machine
(21:37):
learning.
But they still wanted a wholebunch of power.
But they were back in the queuebecause of that decision and
for that reason the Court ofAppeals found this wasn't moot.
It still could have an impact.
It wasn't completely academic,and so they decided the case on
its merits.
Unfortunately for the forestrycompany, they got the thumbs
down.
So it was an interesting case,both because it dealt with
cryptocurrency and that idea ofneutrality, and finally that
(22:01):
concept of mootness, whichwasn't made out here because
there was still some impact,even though the forestry come
cryptocurrency has moved intoartificial intelligence.
So there we are, they're stillwaiting.
Adam Stirling (22:11):
Michael Mulligan, with Mulligan Defense Lawyers,
legally speaking during thesecond half of our second hour.
Michael, thank you so much.
Pleasure as always.
Thanks so much.
Always great to be here.
All right, talk to you later.
Bye now.
It's time for a regular segment with Michael
(00:01):
Mulligan from Mulligan DefenceLawyers, legally speaking, on
CFAX.
Morning Michael, how are wedoing?
Hey, good morning, I'm doinggreat.
Always good to be here.
I got a huge amount of positivefeedback the last time you and
I discussed the prospect of, yes, a trade war all of us would
prefer to avoid, but howintellectual property might play
a role in Canada's response.
(00:21):
I see intellectual propertyprotection and NAFTA at the top
of our agenda today.
Michael Mulligan (00:26):
Yeah, that's exactly right, and I must say
it's quite remarkable that youneed to check your Twitter or X
feed by the minute to figure outwho the last advisor was that
spoke to Trump to determinewhether the tariffs are on or
off again, it looks like theycount down to being off again
very shortly, but be that as itmay, of course, now I think, in
the context of all the coverageof that, people are now familiar
(00:48):
with what a tariff is, which isjust a tax paid by somebody who
imports something from anothercountry, right?
Yes, although if Trumpdescribed it as, hey, I'm
introducing a 25% GST on allimports from Canada and Mexico,
that would seem a lot less toughthan putting a tariff on, but
really they're indistinguishable.
(01:09):
Now, the response to that, thetraditional response to that, is
well, you'll put a tax onthings that your people are
buying from somewhere else.
We'll put a tax on our peoplefor things they're buying from
you, right, and so that's thetraditional response to it.
But, as we spoke about before,you're sort of punishing
yourself to get back at theother person, right, by making
(01:31):
things more expensive.
And an alternative approach tothat.
There was a example of how adifferent approach was
successful for Brazil, who woundup with a trade dispute with
the United States over thesubsidy of cotton there.
The US was subsidizing theircotton producers, harming
(01:52):
Brazilian cotton producers, andBrazil responded to that by
bringing a complaint to theWorld Trade Organization, who
gave them approval for.
A unique response to the UnitedStates and the WTO approval for
a retaliatory measure was notto put a tariff on imports from
(02:12):
the United States into Brazil,which would both make things
more expensive for the people inBrazil and, frankly, produce
probably a shrug from the UnitedStates, because it's not that
much going to Brazil in terms ofthe size of the US economy,
right.
But the unique approach thatBrazil took was to get approval
(02:33):
from the WTO to retaliate forthese subsidies by suspending US
patents on pharmaceuticals,chemicals and biotechnology.
It would also have allowedBrazil to restrict copy rates on
music and the audiovisualindustry music films and that
would allow Brazil tomanufacture generic drugs
(02:56):
without paying any royalties toUS drug companies that might own
the patent, or to copy moviesand TVs without having to pay
anything for them.
All of those are, of course,just intellectual illegal
fictions that we've created.
And, in response to the threatto do that, the US in that
(03:17):
dispute with Brazil the threatwas made in 2010, the United
States capitulated and theypassed legislation to stop doing
what they're doing and payBrazil compensation.
And it was just remarkablyeffective because of just how
asymmetrical that is.
It doesn't increase prices forpeople in Brazil.
It would have drasticallydecreased prices for people in
Brazil in terms of medicationand all kinds of intellectual
(03:42):
property, at great cost to theUnited States, and they were so
fearful of it they capitulated.
And that brings me to theagreements that Canada and the
US have had, which Trump is now,at least as of a few minutes
ago, still planning to repudiate, including starting with NAFTA,
which was back in 1994, movingon to the agreement he
(04:06):
negotiated it was entered intoin 2020 eventually and just how
those deal with intellectualproperty and how core that is to
the US economic interests Backat the time NAFTA was
implemented.
A large portion of thatagreement is to try to protect
US intellectual property Because, let's not forget, the US in
(04:29):
many respects is kind of apost-industrial economy, right
Many things, even though theymight have a US company involved
with them aren't actually madein the United States.
They're made, you know, inChina, and what the US has is
they've designed something orthey've got a you know written
some software, or they'vedesigned a computer chip or
whatever it might be.
(04:49):
And so NAFTA lists a wholeseries of categories, including
things like copyright protection.
It required that there becopyright protection for sound
recordings of at least 50 years.
It required protection of likesatellite and other signals.
Trademarks Patents was one ofthe critical ones.
(05:09):
That was a requirement in there.
It added an obligation toprovide patent protection for at
least 20 years from the date offiling and 17 years from the
date of the granting of a patentfor pharmaceuticals, and doing
that killed not killed, butseriously hurt the Canadian
(05:32):
generic drug manufacturingindustry.
Prior to that it was eithershorter or Canada would just
grant mandatory licensing toCanadian companies so they could
produce generic copies of drugsat 10% the price, and so when
that got eliminated we now pay90% more and all that money just
goes to the US company that hasthe patent.
(05:54):
We also added, as part of theresults of that NAFTA agreement,
protections on the industrialdesign of semiconductors and
requirements that they bestopped at the border and not be
allowed to be used.
If those were gone, they couldjust be imported without paying
anything, you know, like NVIDIAchips, for example or
Intel-designed chips.
(06:15):
Yeah, sure, copy away, right.
You order.
Order some up from China orTaiwan or wherever you want to,
and away you go.
Industrial designs Anotherthing they included in there.
They also included arequirement that there be both
border enforcement forintellectual property like
stopping stuff from coming inand criminal criminal penalties
(06:39):
for copyright infringement.
All that is a function of NAFTA.
And then when Trump wanted torenegotiate in 2020, that
agreement, his agreement wasalso focused on intellectual
property and it includedprovisions like moving up that
50-year protection for things to75 years plus the life of the
(07:02):
person for copyright on things.
It included digital protections.
It also very interestinglyincluded and this is something
you may have heard about there'sbeen discussion about the US
removing what they refer to asade minimis limit on imports, and
what that means is that whensomebody mails a package to the
United States or another country, if it's under a certain value,
(07:24):
you haven't had to pay duty onit at all.
And that's the very foundationof those businesses like Timu,
that kind of mails plastic junkto you from China for not much
money, and there was no duty onthose things because they would
ship them over one at a time inthe mail rather than coming over
in a big container, crate orwhatever, and so everything was
(07:45):
under the de minimis level.
Well, that agreement we enteredinto, the US-Mexico Canada Free
Trade Agreement with Trump in2020, compelled Canada to
provide duty-free de minimisaccess for shipments from the US
to Canada of at least $150.
And it speaks about in thepolicy documents surrounding it
(08:06):
how important that is to USbusinesses, so small businesses
being able to ship thingsindividually without cost.
And so that's what's going on,why we have it, and all of that
is a function of thoseagreements we entered into.
It's one of the central concernsof large US corporations,
(08:26):
everything from Intel to everypharmaceutical, to every movie,
studio music producer, bookpublisher and everything in
between.
It is a very, very largeportion of the value of US
companies, and the example withBrazil getting approval from WTO
and Canada has made a WTOcomplaint about what Trump did,
(08:50):
at least recently, and hopefullythere are some members of the
federal government that arelistening to some of this or
considering this as an option,because it is not a matter of
punishing yourself.
It's a matter of reducing costswhile punishing the country
who's imposing tariffs, incontravention of both WTO
(09:10):
obligations and contrary to thespecific agreements we have with
the United States, and so Ivery much hope that there's some
consideration being given to it, because it reduces prices
rather than increasing pricesand is completely asymmetric.
If the US responded in asimilar way to Canada, we would
shrug, I think, in the same waythat the US is likely to shrug
(09:33):
if we add a 25 percent tax toorange juice.
You would just have such greatpushback.
Just have such great pushback.
And you saw, it took less than24 hours for Trump to crumble
when the auto executives showedup telling him that if he
continued with the 25% tax on ortax on auto parts going back
(09:54):
and forth, you know, thepresident of Ford said they
might be able to last a coupleof weeks, and so you can imagine
the sort of pushback you'd getfrom every pharmaceutical
company, chip company, softwarecompany.
It's most of the US economy,and so it's a real Achilles heel
.
There's a proven history of itworking, there's a legal basis
to do it, and the protectionthey receive and the payments
(10:16):
that they're getting for drugsand software and all those
things are a result ofagreements that they've
repudiated.
So hopefully we're being smartand keeping that option in mind
to put very serious pressure onthe US.
Adam Stirling (10:29):
Michael Mulligan with Mulligan Defense Lawyers.
Legally Speaking will continueright after this break.
All right back on the air hereat CFAX 1070 as we continue with
Legally Speaking MichaelMulligan during the second half
of our second hour on a Thursday.
Michael, as we move on to ournext issue, it says not telling
a civil jury that a 75% majorityof them could decide an issue
after three hours ofdeliberation not an error.
(10:52):
So there's a couple ofnegatives in there.
Help me understand this.
Michael Mulligan (11:00):
Sure.
So we spoke before about thefact that we have civil juries
in British Columbia and whythat's a pretty important part
of our civil justice system.
Civil juries criminal juriesare 12 people.
For civil cases though, it'sonly eight, so they're smaller.
And this was an interestingdecision out of the BC Court of
Appeal, and it deals withanother provision of civil
juries that many people, I'msure are just not aware of, and
(11:24):
that particular provision isthat after a deliberation of at
least three hours, a judge mayreceive a verdict based on 75%
agreement of the jurors.
So that would be six.
And the theory of all that isthat you know when you're
charging somebody criminally,it's always proof beyond all
reasonable doubt, right.
(11:45):
And you know there's a civilcase, you're just there on a
balance of probabilities, right?
Did the person probably dosomething that is deserving a
payment of money?
And so we've got a lowerstandard of proof.
And that's why we have smallerjuries, but also why there's
that provision that allows ajudge to receive a verdict of
only 75% of them.
(12:06):
So six of the eight would beenough, but only after three
hours of deliberation.
And so this particular case itwas a claim against ICBC prior
to having no fault.
Fault that's when the accidentoccurred.
(12:29):
The case involved a jury trialand the person involved she was
28 at the time.
She was a nurse and she hadmade a claim following an
accident for various things,including non-pecuniary damages
like pain and suffering rightfrom a serious injury, but also
a claim for lost earnings andlost future earning capacity.
And in Canada those things areusually the bulk of what claims
(12:51):
are.
When somebody is injured andsuffers a loss.
We don't have in Canada, youknow, giant jury awards, like
you might have heard of from theUnited States, millions of
dollars or whatever for pain andsuffering.
Those have all been limited fora long time, not just juries
but judges as well, and so alarge part of jury, a large part
of awards for compensation, areusually for things like lost
(13:14):
capacity to work.
And here the nurse who wasseriously injured.
She claimed this was going toreduce her capacity to earn
money in the future because ofphysical limitations, and the
argument was that she wouldn'tbe able to get as many possible
nursing jobs if employers didn'twant to hire her because of
physical limitations flowingfrom the accident.
That was her argument.
(13:34):
It didn't work.
The jury ordered that shereceive zero dollars for that.
They did award her money forother things, so they were
satisfied.
She was seriously hurt.
She got a total of $122,000,but nothing in terms of loss of
future earning capacity and only$1,200 for loss of past earning
(13:55):
capacity.
So the jury didn't buy that shewasn't able to work and earn as
much money.
Now, the argument she made waskind of a novel one.
On the appeal she said well,the judge was mistaken, because
the judge in there charged thejury.
And the way it works is afterthe jury hears all the evidence
in a case civil or criminal ajudge is required to what's
called charge the jury, not runat them, but instead charge them
(14:18):
in the sense of like tell themwhat they're supposed to do
right, explain the law to them,how they're supposed to reach
their decision.
That's the same in criminalcases as well, and the judge did
that here.
And one of the things the judgesaid in the charge to the jury
was that they had to beunanimous in their decision.
And the argument made on appealwas well, hold on, that's wrong
(14:40):
.
They should have been told thatafter three hours they could
make a decision.
That wasn't unanimous.
That was the argument.
Well, they were misled whenthey were told they all had to
agree and the argument was well,had they been told that they
didn't all have to agree afterthree hours, you know, let's say
six of them wanted to give theinjured nurse money for loss of
future earning capacity.
(15:01):
They could have just, you know,run out the shot clock and then
done that, you know, even if acouple of people didn't agree.
And so they said they shouldhave been told.
That was the argument, thecreative argument.
The Court of Appeal did notagree.
They said that was not an errorand they pointed to several
things, including, first of all,it's not incorrect that at the
(15:21):
beginning they all have to beunanimous.
They pointed to the fact thatthe language is permissive in
terms of receiving a verdict.
That's only 75%, not unanimous,that's only 75 percent, not
unanimous.
And the other thing theypointed out and this arises with
some frequency that the lawyerfor the nurse didn't complain
about the jury charge at thetime.
(15:43):
So if you had a problem withthat, you should have raised
your hand, you know, at the time, but you didn't.
And so, by virtue of acombination of those things, the
judge concluded, or the courtof appeal concluded, there was
no error in not telling the juryabout that.
In fact, there are other thingsthat juries are not told about
at all, which is interesting,like one of the things they're
(16:04):
not told about is they're notgiven any sort of quantum
assistance in terms of figuringout like how much money might
you give somebody for pain andsuffering there's actually some
prohibitions on making specificsubmissions to the jury about
that and the judge gives them nohelp about that.
They have to kind of left tofigure out for themselves.
You know, how much is it worthwhen you have a compound
fracture, or what should yougive somebody when their back's
(16:25):
broken or whatever.
They're just kind of left totheir own judgment about that,
which is interesting.
Or, like in criminal cases,they're not told like what
punishment would be imposed ifthere was a conviction and it
would be prohibited to tell them.
And so you know there are caseswhere juries convict and then
they're just aghast that youknow what punishment has to be
imposed.
Interesting, you know, in thatcase involving the mercy killing
(16:48):
of the man from the prairieskilled his severely disabled and
in pain daughter, issues inunremitting pain for many years.
The jury convicted and thenwere aghast to find out he was
set to go to prison for life,but they weren't told.
So the final comment, just onthe civil jury thing I thought
people might be interested in,is that you cannot have a civil
(17:11):
jury if you're suing thegovernment.
It's primitive.
In fact you didn't used to beable to sue the government at
all.
There used to be this conceptof immunity, like you just
couldn't go to court and sue thegovernment.
We got a thing called the CrownProceedings Act I think it was
74 when it first came inallowing you to do that.
Provisions in that crownproceedings act that allows you
(17:36):
to sue the government, um issection four, sub two, which
says that, uh, they must betried without a jury, which is
very interesting, right?
Uh, so the idea we don't trustthe community, members of the
community, to sue the governmentthey'd all go after the
government not us at least oncivil juries yeah, that's funny
yeah, uh, so we've got one more.
Uh, one more case on the agenda.
Yeah, yeah, we've got fourminutes Definitely, just on
civil juries.
Yeah, that's funny.
So we've got one more case onthe agenda.
Adam Stirling (17:58):
Yeah, we've got four minutes remaining Four
minutes.
Michael Mulligan (18:01):
Okay, so the final case is another BC case,
also fresh out of the Court ofAppeal, and it has to do with
the issue of cryptocurrencymining and getting hooked up to
electricity, and the caseinvolved a company, which is an
odd combination, described as aforestry and independent power
company it's kind of an oddcombination already that wanted
(18:23):
to develop high-performancecomputing facilities that would
need a lot of electricity, andtheir original plan was that
those high-performance computingfacilities for the forestry
company would be doingcryptocurrency mining, and the
(18:44):
concern with that from thegovernment I guess there are
multiple people wanting to hookup to BC Hydro to do
cryptocurrency mining is it usesa whole lot of electricity.
Right, because basically you'vegot huge banks of computers
solving complex mathematicalproblems, which is how some of
those things like Bitcoinoperate, and then they give
those miners quote unquotepayment in Bitcoin for doing
that work.
(19:05):
It just uses a whole lot ofpower and in BC Hydro has a
statutory monopoly.
They provide 95% of theelectrical service in British
Columbia a couple of oddballexceptions, but basically
they're it.
And so the legislation dealingwith BC Hydro one of the
principles in there is the ideaof not discriminating amongst
(19:27):
various users, right, because ifyou can deny somebody power,
you're basically denying themthe ability to do really
anything right in terms ofbusiness, and so you know, that
sort of makes sense, right.
But here the concern was, well,oh my goodness, all those
people want to set up here and Ithink some of that came from
China banning them.
So I think there were a wholebunch of people with a bunch of
(19:50):
these computers that werefinding alternative places with
cheap power to kind of set upand mine cryptocurrency.
To prevent that, the BCgovernment passed an order in
council that, for 18 months,suspended the right of
cryptocurrency companies to gethooked up for electrical service
, and so that brought achallenge to whether that order
in council was valid, giventhose general principles in the
legislation about notdiscriminating against different
(20:11):
people who want to use it.
It didn't work at the triallevel asking for that to be
reviewed, and so they appealedthat to the Court of Appeal,
arguing that that was a mistake.
Now, interestingly, since then,the Order of Council has run
out, the 18 months is gone, andthey replaced it with sort of a
(20:32):
regulation that essentially hasthe same effect, but the thing
being challenged was gone, andso one of the interesting
concepts.
Here was the issue of mootness,and what the Court of Appeal had
to analyze.
There is that courts are notsupposed to deal with issues
that have no effect any longer.
Like you shouldn't be therejust kind of a debating society
about some interesting legalpoint that no longer matters.
(20:52):
And the principle there is ifsomething becomes quote academic
and there's no longer any realdispute, you're just kind of
arguing about something.
In principle, that's not reallythe job of courts.
They've got enough real thingsto be doing.
And it causes other problems ifyou no longer have any real
stake in it or you're reallyarguing for the thing.
Is the adversarial processworking?
And so here the argument from BHydro and the government was in
(21:16):
part well, this is all expired.
The Court of Appeal,interestingly, didn't buy that,
and part of the argument wasthat the forestry mining company
said well, it affected ourposition in the queue to get
hooked up, and they now shiftedgears, saying they still wanted
to create the facilities, butnow no longer for cryptocurrency
, but instead for artificialintelligence and machine
(21:37):
learning.
But they still wanted a wholebunch of power.
But they were back in the queuebecause of that decision and
for that reason the Court ofAppeals found this wasn't moot.
It still could have an impact.
It wasn't completely academic,and so they decided the case on
its merits.
Unfortunately for the forestrycompany, they got the thumbs
down.
So it was an interesting case,both because it dealt with
cryptocurrency and that idea ofneutrality, and finally that
(22:01):
concept of mootness, whichwasn't made out here because
there was still some impact,even though the forestry come
cryptocurrency has moved intoartificial intelligence.
So there we are, they're stillwaiting.
Adam Stirling (22:11):
Michael Mulligan, with Mulligan Defense Lawyers,
legally speaking during thesecond half of our second hour.
Michael, thank you so much.
Pleasure as always.
Thanks so much.
Always great to be here.
All right, talk to you later.
Bye now.
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