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Additional Insights on APO Practice and Procedure in Anti-dumping and Countervailing Duty Proceedings in Canada, Mexico and the United States
2015
Canada's Special Import Measures Act (SIMA) and the Canadian International Trade Tribunal Act each contain provisions that create an offence for failure to comply with a confidentiality undertaking entered into under those statutes. Both offences include the maximum penalty of a fine of up to CAD 1 million if the person is tried on indictment (or a fine of up to CAD 100,000 upon summary conviction). Offences of this nature are initiated on the consent of the Attorney General of Canada and prosecuted by the Public Prosecution Service of Canada. Additionally, counsel who has breached a disclosureundertaking may be ineligible to enter into future undertakings with the Canada Border Services Agency (CBSA) or the Canadian International Trade Tribunal (CITT), which would severely limit that person's ability to represent clients in future cases before these bodies. In the normal course, one might expect the first procedure to emanate from a complaint or motion by the wronged party to the CITT or the CBSA, as the case may be. Written by Darrel H. Pearson and Jessica B. Horwitz, and published Volume 10 of Global Trade and Customs Journal, Issue 4, pp. 161–170.
Canada is Lagging in Trade Talks, and Exporters Will Pay the Price
April 15, 2015
In March, Trade Minister Ed Fast marked the conclusion of the ninth round of negotiations toward a Canada-India Comprehensive Economic Partnership Agreement (CEPA), reaffirming that “Canada remains committed to concluding an ambitious agreement with India”. Curiously, Prime Minister Stephen Harper's March 25 press release announcing Mr. Modi's visit makes no mention of the fact the two countries are negotiating a trade agreement. Earlier this week, The Globe's Barrie McKenna described the talks as a “mostly aspirational goal.” Written by John Weekes and published in the Globe and Mail.
Buying and Selling a Business: Due Diligence
April 09, 2015
Prepared for the Legal Education Society of Alberta's Buying and Selling a Business Course, by Peter Inglis, Mark Kortbeek and Nicholas Jeanes, "Due Diligence" discusses common legal due diligence performed on target private businesses, the arising issues, and what can be negotiated on that basis. It also contrasts differences between share and asset deals, assesses best closing practices and what costs transactions can bear. It further considers dynamics between due diligence and purchase price negotiation and how to negotiate non-disclosure agreements.
New Good-Faith Duty of Honesty in contractual Performance
April 2015
There is more to contracts in Canada than the words on the page. With its very recent decision in Bhasin v Hrynew (2014 SCC 71), the Supreme Court of Canada has reshaped the way that Canadian courts will look at contractual performance. In a unanimous decision, the Court: (1) recognized good faith contractual performance as a "general organizing principle of the common law of contract"; and (2) recognized a new duty of "honest performance", which requires the parties to be honest with each other in relation to the performance of their contractual obligations. The decision has broad implications, and raises several issues that will likely be the subject of further litigation. Published in the Canadian section of Best of the Best 2015.
The Combating Counterfeit Products Act: The Roll Out Begins
March/April 2015
Brand owners have new weapons at their disposal to combat copyright piracy and trademark counterfeiting. The Combating Counterfeit Products Act, which received royal assent on December 9, 2014, makes a number of amendments to the Copyright Act and Trademarks Act. Published in the March/April 2015 edition of IPIC Bulletin.
When Subsection 250(5) of the Income Tax Act Does Not Apply: Black v. The Queen
2014
The ongoing legal battles of Lord Conrad Black continue. This time, the issues involved are of relevance to many "dual-resident" Canadians who rely on relief under Canada's various taxation treaties in order to avoid Canadian taxation on foreign-source employment and other income. Anu Nijhawan and Marshall Haughey, "When Subsection 250(5) of the Income Tax Act Does Not Apply: Black v The Queen" (2014) Taxation of Executive Compensation and Retirement, Volume 24, Number 4, 1609.
Kim Maguire on Dispositions of Real Estate
March 26, 2015
Kim Maguire speaks on "Dispositions of Real Estate" at Pacific Business Law Institute Program: Tax Issues in Real Estate Transactions, 2015.
Canada: Mergers and Acquisitions 2015
March 2015
Published in The International Comparative Legal Guide to Mergers and Acquisitions 2015, Jeffrey Kerbel and David Spencer author the Canadian chapter of the 9th edition providing a broad overview of common issues in mergers and acquisitions. Click on the PDF above for the full article.
What DC Plan Sponsors Need to Know About the ORPP
March 04, 2015
The Ontario Retirement Pension Plan (ORPP) is an unprecedented new mandatory provincial pension plan that represents the provincial government's “made-in-Ontario” solution for expanding pension coverage for eligible employees in that province. Proposed legislation enacting the ORPP was introduced by the Ontario government last year, along with an ORPP consultation paper on key design questions, and recently passed second reading. Authored by Susan G. Seller and published in Benefits Canada.
Balancing the tensions of legal technology
February 06, 2015
Kate Simpson authors "Balancing the tensions of legal technology" published in Canadian Lawyer Magazine. Is it just me or have the last couple of years heralded ever-increasing pressures on legal technology in our firms, whether large or small? And they don’t seem to be any cute, simple pressures either — they’re a bunch of competing tensions that constantly threaten to throw us off-track...
6 Cloud Considerations For Tech Start-ups
February 02, 2015
Many modern electronic commerce or software-based start-ups are looking to the cloud, both for sources of technology to support their services mix, as well as a delivery mechanism to connect their services to their customers. Published in the Security section of Cloud Computing in Canada.
Dissenting Shareholders in Amalgamations
January 2015
Jared A. Mackey & Greg Johnson, “Dissenting Shareholders in Amalgamations”, (January 2015) XIII(4) Corporate Structures & Groups (Federated Press) at 744.
The ‘Special Work Site' and ‘Remote Location' Exemptions
2014
Jay Winters and Wesley Novotny authored "The ‘Special Work Site' and ‘Remote Location' Exemptions", 2014 Prairie Provinces Tax Conference (Toronto: Canadian Tax Foundation, 2014), 10: 1-34.
Taking the Bull By the Horns: Addressing Gaps in Calgary's Legal Market
Winter 2014-15
Across the country more than 50% of lawyers graduating from law schools are women, yet they represent only 37% of practicing lawyers. According to the Federation of Law Societies of Canada, the majority of lawyers who have been in practice five years or less are women. But, instead of moving up the ranks many are leaving. With this trend research suggests that at present rates women would not reach parity with men in law firms until at least 2088. Published by Law Matters: The History Issue.
The Man with the Mangled Hand
Winter 2014
Professor John Willis was fond of asking his students, "What really happened?" His thesis was that the law reports often concealed more than they revealed about the facts that shaped the outcome in many of the most important developments in the common law. This was never more apparent than in the case involving the man with the mangled hand. Published in The Advocates' Journal (33 Adv J No. 3, 33 - 38).
Why (Certain) Lawyers Make Good Board Directors—The Case against Professional Profiling Prejudice
December 2014
William Shakespeare's famous quote dates from the 16th century and remains a widely held view in certain circles. Our recent experience suggests that many board nominating committees seem to share this sentiment (figuratively, fortunately): being a lawyer, or even having legal training, is often perceived to detract from a potential director's candidacy. We think it's time to examine what's good and what's bad about lawyers sitting as directors on non-client boards. Published in Corporate Governance, Federated Press, November 2014.
Data Hosting and Data Breaches
December 2014
There are many reasons why cloud computing gets used, but a main reason is often due to the cost savings of the utility model for service delivery. In an age of increasing data breaches, users should confirm that they comply with their data protection obligations and have a plan in place to mitigate the harm that can be done in the event of a data breach. Published in Cloud Computing, a supplement of the Toronto Star.
Assessing Damages for Trade-mark Infringement in Default Proceedings: What's Fair?
December 2014
Recent decisions of the Federal Court have called into question the long-standing practice of applying a damages scale in trade-mark proceedings where the defendant is in default. The Federal Court has for some time struggled, particularly in default proceedings, to balance the objectives of fairly compensating a trade-mark owner for infringement of its rights against the principle that damages must be proven, not assessed arbitrarily or in the abstract. These recent decisions have emphasized the principle that damages must be proven and have resulted in a trend to lower awards. Published in Intellectual Property Journal, Federated Press, 2014, Volume XIX, No. 4.
Consequences of Employee Silence in Fraud Investigations
December 2014
In employee fraud investigations, where a real prospect of future criminal charges exists, the following questions often arise: Can a suspected employee refuse to answer questions posed by an investigating employer? Is there a "right to silence" if the employee's answers may tend to
incriminate him or her? Published by Carswell in the December 2014 edition of Legal Alert (Volume 33, Number 9).
International Fraud & Asset Tracing - Jurisdictional Comparisons
December 2014
Jim Patterson and Kirsten A. Thoreson authored the Canada chapter of the 2015 edition of International Fraud & Asset Tracing: Jurisdictional Comparisons, published by The European Lawyer Reference Series, London, part of Thomson Reuters (Professional) UK Limited.
Bennett Jones