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Articles
Directors' Duties in Canada, 6th ed.
April 06, 2016
Members of Bennett Jones were involved in the writing of various chapters of Directors' Duties in Canada, 6th ed., edited by Barry Reiter and published in Canada by CCH Canadian Limited, including Hugo Alves, Milos Barutciski, Melissa Birman, Stephen Burns, Carl Cunningham, Geoffrey Dyer, Len Griffiths, Bruce Hibbard, Mark Jewett, Martin Kratz, Jeff Leon, Brad Markel, Jesslyn Maurier, Murray Perelman, Raj Sahni, Susan Seller, Gary Solway, Bill Vass, and Claire Webster.
Transfer of DC Plan Assets Improved Under Ontario's Current Regime
March 14, 2016
New pension asset transfer rules governing single-employer pension plans (SEPPs) came into effect in Ontario on Jan. 1, 2014. The Ontario government recently released a consultation paper proposing that the existing rules are also applied to plan mergers involving two or more multi-employer pension plans (MEPPs). Published in Benefits Canada magazine.
The 'Every Step You Fake' Study and Canadian Law
March 2016
In the recent study "Every Step You Fake: A Comparative Analysis of Fitness Tracker Privacy and Security," Open Effect, a Canadian not-for-profit applied research organization, analysed data and information gathered from eight fitness tracking applications and devices currently available in Canada. The study seeks to determine what kind of information such systems gather and how that information is treated. The better portion of the study is yet to be published, but the version available (published on 2 February) contains a number of interesting findings. Michael Whitt QC and Graeme Harrison of Bennett Jones LLP discuss the study, which they believe raises numerous legal questions in Canada.
For First Time, 22,000 Mounties Can Begin Organizing in 2010
February 29, 2016
The face of unionization in Canada is changing. Although it's declining in the private sector, it's increasing in the public sector. A few recent decisions by Canadian courts show this trend. Published on the Norther Exposure blog.
Why Travel the World with Samples if Canada's Goods Aren't Available?
February 06, 2016
More than a half-century ago, Pierre Trudeau's Liberals launched a foreign-policy review. It dealt with every region of the world but failed to address an issue of growing concern to Canadians at the time: how to deal with our rapidly growing economic dependence on the United States and our increasing vulnerability to its overwhelming presence in our economy. Similar concerns will no doubt occupy Prime Minister Justin Trudeau when he visits Washington in March. Published in the Commentary section of the Globe and Mail.
Top Wills and Estates Law Cases - Costs
February 05, 2016
This paper, prepared for the Legal Education Society of Alberta, includes an overview of the current state of the law in Alberta as it pertains to costs in estate litigation. This overview is broken into the following sections: (i) costs in Alberta estate litigation, generally, (ii) when an estate is required to pay costs; (iii) when an unsuccessful litigant is required to pay costs; and (iv) when a personal representative is required to pay costs. The remainder of the paper will contain summaries of those cases which helped to outline the current state of the law, as well as examples of courts applying the law and how those applications might be applicable to a wills and estates litigation practice.
Canada - No Longer a Fraudster's Playground
February 2016
Canada has a fairly-earned reputation for being a fraudster's playground. Although supporting sophisticated markets that are highly integrated with major global economies, Canada has been home to arguably inadequate and underutilized regulatory and criminal fraud enforcement regimes. The prosecution of fraudsters was historically difficult and infrequent, which promoted frauds with Canadian connections, including by foreign fraudulent actors utilizing Canadian professionals and institutions to facilitate their wrongdoings. Published by Financier Worldwide Magazine.
Signing the TPP Isn't Ratifying, But the Liberals Do Have to Sign
January 26, 2016
Last week, when New Zealand issued an invitation to the other 11 countries that negotiated the Trans-Pacific Partnership to sign the agreement in Auckland on Feb. 4, it seemed it might pose a dilemma for Canada's Liberal government. On Monday, International Trade Minister Chrystia Freeland announced that Canada will participate in the signing ceremony. That was the right choice. It was also the only practical one. View full article: Signing the TPP Isn't Ratifying, But the Liberals Do Have to Sign.
Implementation Day for the P5+1 Iran Nuclear Agreement: What it Means for Canadian and International Businesses
January 16, 2016
January 16, 2016, marked “Implementation Day” for the Joint Comprehensive Plan of Action (JCPOA), the historic nuclear non-proliferation and sanctions reduction agreement reached between the “P5+1” countries (the United States, the United Kingdom, China, Russia, France and Germany), the European Union (EU), and the Government of Iran on July 14, 2015. Canada was not party to the JCPOA agreement. View full article here: Implementation Day for the P5+1 Iran Nuclear Agreement: What it Means for Canadian and International Businesses.
Evidentiary Problems with Threat of Injury Findings in Canadian Trade Remedy Cases - OBA
January 15, 2016
The recent proliferation of affirmative threat of injury findings by the Canadian International Trade Tribunal (CITT) indicates problems with the CITT's approach to its threat of injury analyses. The CITT is arguably applying a lax evidentiary standard that does not meet the legal requirements prescribed by Canadian legislation and respective WTO agreements covering Canada's obligations regarding trade remedy measures (Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 and Agreement on Subsidizing and Countervailing Measures, collectively WTO Agreements). Click to read full article: Evidentiary Problems with Threat of Injury Findings in Canadian Trade Remedy Cases.
2015 Canadian Public Target Deal Points Study
January 06, 2016
In the American Bar Association's 2015 Canadian Public Target Deal Points Study, David Spencer and James McClary (group leaders) and Kelly Ford (member of the working group) are noted as contributors.
Do Building Permits Affect Title to Real Estate?
January 01, 2016
This article discusses whether building permits affect title to real estate. No, although unfortunately, we have to overcome a December 2015 decision of the Ontario Court of Appeal in order to support that "no". A decision that, in order to square with the legal framework of real estate law, will need to be either overturned or distinguished, filed away and forgotten as being applicable to a very particular set of facts. But for the time being, the decision is recent and has caused something of a stir in the real estate legal community and the title insurance community, not so much because of the result, but because of how the Court came to the result. To understand the topic however, one has to take a few steps back in order to consider generally, what building permits are, and why they would ever come up in a conversation related to a person's title to their real property.
Water Use Challenges to Oil and Gas Developments
December 2015
"Water Use Challenges to Oil and Gas Developments," by Wally Braul, Mike Theroux and Robbie Armfield. Published in Alberta Law Review, Energy Law Edition, Volume 53, No. 2 (December 2015).
Is an Employer Required to Accommodate an Employee's Use of Marijuana in the Workplace for Medical Purposes?
December 2015
Many employers have policies prohibiting the possession or use of any illegal substances, including marijuana, in the workplace. However, an employer is required to accommodate an employee's disability to the point of undue hardship. An employee may claim that they have a disability that requires they treat it with medical marijuana. The duty to accommodate is a general and ongoing duty that arises once a prima facie case of discrimination has been established: Once a prima facie case of discrimination is established, the next question becomes whether a policy prohibiting the use or possession of marijuana in the workplace is a bona fide operational requirement (BFOR); this is determined on a case-by-case basis in accordance with the standard legal analysis established by the Supreme Court of Canada in British Columbia (Public Service Employee Relations Commission) v. B.C.G.E.U. Published in Illness and Disability in the Workplace (December 2015) by Carswell.
Canadian Energy Exports: The Landscape, the Challenges, and the Driving Forces Behind the Need for Market Access
December 2015
Canadian law places few restrictions on oil and gas exports; however, hurdles to the construction of required export infrastructure present challenges to sustaining historical levels of exports. This chapter discusses the legal context for Canada's energy exports, and the landscape for new energy exports from Canada, with a focus on recent legislative and regulatory developments related to new export pipelines, rail transport of crude oil, and the nascent liquefied natural gas (LNG) industry on Canada's Pacific coast. Originally published by the Rocky Mountain Mineral Law Foundation in the Proceedings of the 61st Annual Rocky Mountain Mineral Law Institute (2015).
International Fraud Litigation: Should You Consider Arbitration an Alternative?
December 10, 2015
In the right circumstances, arbitration can provide a time- and cost-effective alternative to fraud litigation that is worth considering, particularly given the growing prevalence of arbitration agreements internationally and the potential risk of fraud or corruption in international business deals. The less public, more flexible nature of the arbitration process are also part of what make it an appealing option. However, though there are benefits, a fraud claimant should also be prepared for the challenges before taking this route toward resolution. View full article here: International Fraud Litigation: Should You Consider Arbitration an Alternative?
Bennett Jones