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Articles
Reverse Onus Where Fiduciary Defrauds Employer
October 2013
A fiduciary employee who steals from his or her employer must disprove the employers' alleged quantum of loss. Legal Alert – October 2013, Volume 32, Number 7. Reproduced by permission of Carswell, a division of Thomson Reuters Canada Limited.
Transparency International Canada Inc. - UNCAC Implementation Review - Civil Society Organization Report
October 2013
In December 2013, Transparency International Canada (TI-Canada) published its Civil Society Report on Canada's implementation of the United Nations Convention against Corruption. The report contributed to the UNCAC Implementation Review Group's peer review process to assess the implementation and enforcement of selected articles in chapters III (Criminalisation and Law Enforcement) and IV (International Cooperation) of the UNCAC. TI-Canada's Civil Society Report, co-authored by Sabrina A. Bandali, focuses on the UNCAC articles covering bribery (Article 15), foreign bribery (Article 16), illicit enrichment (Article 20), money laundering (Article 23), and protection of reporting persons or whistleblowers (Article 33), from the perspective of civil society.
Collective Bargaining and Fiscal Restraint
September 2013
In February 2009, the federal government introduced Bill C-10, the Budget Implementation Act, 2009. Part 10 of Bill C-10 enacted the Expenditure Restraint Act, which was proclaimed into force in March 2009. The ERA (and the 2009 federal budget generally) was intended to be a response to the global financial crisis that began in 2008. The ERA limits the federal government's expenditures in relation to wages. In particular, section 16 of the ERA fixes pay increases, notwithstanding any collective agreement, arbitral award or term and condition of employment, between 1.5% and 2.5% retroactively to the 2006-2007 fiscal year for most federal government employees. Published by Federated Press in Charter and Human Rights Litigation.
Finding and Caring for Trusted Advisors
September 2013
While it may be true that the most important things a board does is hire and fire the CEO, the directors make other valuable contributions to their companies. One of these is to ensure that the company develops and maintains a network of advisors to help it manage the myriad of issues (frequently novel, and often beyond the experience of management) that the company will face in a world of increasing complexity. Published in the September 2013 edition (Issue 169) of the Director Journal, a publication of the Institute of Corporate Directors (ICD).
Justice Belobaba Certifies Ontario's First “Misclassification” Overtime Class Action
September 16, 2013
In a decision that marks the first of its kind, on August 20, 2013, Justice Belobaba of the
Ontario Superior Court of Justice certified a class action alleging that BMO Nesbitt Burns Inc. failed to pay overtime to a group of 1,500 current and former Investment Advisors. The decision in Rosen v BMO Nesbitt Burns Inc. follows on the heels of a tumultuous period in which the Supreme Court of Canada denied leave to appeal certification in two “off-the-clock” overtime cases and the Superior Court of Justice, Divisional Court and the Court of Appeal of Ontario declined to certify two “misclassification” cases, including a case premised on a group of similarly situated employees in Brown v Canadian Imperial Bank of Commerce. Published in Labour Notes (Number 1482).
Practice Note: Fraudulent Preferences under Provincial Legislation
September 11, 2013
This practice note discusses the preferences provisions under Ontario legislation, specifically the requirements to attack a transaction as a fraudulent preference, the parties that have standing to bring an action, the financial status of the debtor at the time of the transaction, the requirements relating to intent, and the conditions under which the statutory presumption of an intention to prefer arises under Ontario's Assignments and Preferences Act. Published by Lexis Practice Advisor Canada – Insolvency.
Practice Note: Procedural Guide for Challenging Preferences and Transfers at Undervalue
September 11, 2013
This table provides a summary overview of the procedural steps for attacking transactions under ss. 95 and 96 of the Bankruptcy and Insolvency Act where the transaction had the effect or was intended to prefer one creditor over another or for which the debtor received consideration that is conspicuously less than the fair market value of the consideration given by the debtor. Published by Lexis Practice Advisor Canada – Insolvency.
Practice Note: Transfer at Undervalue under the BIA – Section 96
September 10, 2013
This practice note discusses the transfer at undervalue provisions under s. 96 of the Bankruptcy and Insolvency Act, including the settlements and reviewable transactions provisions that were replaced by s. 96, the distinct treatment of arm's length and non-arm's length transactions under s. 96, and the remedies available where a transfer at undervalue is found under s. 96. Published by Lexis Practice Advisor Canada – Insolvency.
Practice Note: The BIA Preferences Provisions — Section 95
September 09, 2013
This practice note discusses the preferences provisions in the Bankruptcy and Insolvency Act, including the condition precedents for a bankruptcy trustee to attack a transaction entered into by a bankrupt debtor as a preference, and the relevance of the transaction being at arm's length in the application of certain conditions under the preferences provisions. This practice note also discusses the rebuttable presumption that arises if the transaction had the effect of preferring the creditor, and the ways by which the presumption can be rebutted. Published by Lexis Practice Advisor Canada – Insolvency.
Canada: Merger Review 2014
September 2013
An extract from the Antitrust Review of the Americas 2014, this chapter sets out the structure and practice for assessing merger review under the Canadian Competition Act. Similar to other competition regimes, the fundamental framework of analysis centres on whether a merger will, or is likely to, result in a substantial prevention or lessening of competition (SPLC). We also discuss the enforcement approach taken to merger review by the Competition Bureau (Bureau). Lastly, the chapter examines issues related to challenges by the commissioner of competition (commissioner) and potential remedies when issues arise. The chapter is available online from the Global Competition Review website.
Cross-Border Employment Issues: Ensuring a Successful Assignment to Canada
2013
Anu Nijhawan and Anne Montgomery, "Cross-Border Employment Issues: Ensuring a Successful Assignment to Canada," Report of Proceedings of the Sixty-Fourth Tax Conference, 2012 Conference Report (Toronto: Canadian Tax Foundation, 2013), 35:1-30.
Cloud Computing: A Primer for Outsource Lawyers
September 01, 2013
The business advantages of cloud computing are
compelling, and will undoubtedly push more businesses, large and small, to
consider using cloud services to replace or enhance current computing resources.
However, adopting cloud computing involves the same principles and concepts of
an outsourcing transaction, since the business relies on the provision of data
processing and other technological services from third parties outside your
enterprise. One of the main areas of common ground is that concepts relating to
goods or licensing have little or no application because the cloud consists
primarily of a provision of services. That distinction provides unique
challenges for companies (and their lawyers) adopting cloud service arrangements
over internal computing infrastructure. Against this background, this article
examines the following: What is cloud computing? Cloud computing arrangements.
Cautions when using cloud computing. Contract checklist. Written by Martin P.J.
Kratz, QC, Duncan Card and Michael Whitt, QC and published in Practical Law
Company's PLC -
Cloud Computing: A Primer for Outsource Lawyers.
Leaking Information
Sept-Oct 2013
Duncan C. Card, Interviewee, "Leaking Information" article by Pablo Fuchs appearing in The Canadian Bar Association's National Magazine (Sept.-Oct., 2013).
On Guard
Sept-Oct 2013
Duncan C. Card, Interviewee, "On Guard" article by Pablo Fuchs appearing in The Canadian Bar Association's National Magazine (Sept.-Oct., 2013).
Practice Note: An Overview of Intellectual Property in Bankruptcy
August 30, 2013
This practice note discusses the issues regarding the treatment of intellectual property (IP) in bankruptcies, including the legal effect of ipso facto clauses, trustee's rights in patented articles, copyright and manuscripts, as well as the assignment of copyright and manuscripts. The treatment of IP in the context of CCAA reorganizations, BIA reorganizations, or receiverships is not discussed since, in some key respects, the treatment of IP in those contexts differs from the treatment in bankruptcies. Published by Lexis Practice Advisor Canada – Insolvency.
Practice Note: Guide to Dealing with the Bankruptcy of a Tenant
August 30, 2013
This practice note discusses the issues regarding the bankruptcy of a tenant including the rights of a trustee in bankruptcy to retain the leased premises, assign the lease to a third party, or surrender possession of or disclaim the lease, and also discusses the status of a guarantor's indemnity obligations under a bankrupt tenant's lease. Published by Lexis Practice Advisor Canada – Insolvency.
Practice Note: Landlord's Rights Upon A Tenant's Bankruptcy
August 30, 2013
This practice note looks at the priority of a landlord's claim to arrears in rent and future rent in a bankruptcy and a landlord's right to receive occupation rent from a tenant's bankruptcy trustee, including who is required to make such payments and how to determine when the trustee is in occupation of the premises. Published by Lexis Practice Advisor Canada – Insolvency.
Practice Note: The Treatment of Subleases in Bankruptcy
August 30, 2013
This practice note looks at the rights, liabilities, and remedies of a sub-lessee or subtenant when the original tenant goes into bankruptcy. Published by Lexis Practice Advisor Canada – Insolvency.
Practice Note: The Treatment of Subleases in Bankruptcy(1)
August 30, 2013
This practice note discusses the rights of intellectual property (IP) licensors and licensees in bankruptcies, including the bankruptcy trustee's ability to disclaim, affirm and assign IP licence agreements, as well as the ways in which a licensee may seek to mitigate its risk during the drafting process. The treatment of IP licences in the context of CCAA reorganizations, BIA reorganizations, or receiverships is not discussed in detail since, in some key respects, the treatment of IP licences in those contexts differs from the treatment in bankruptcies. Published by Lexis Practice Advisor Canada – Insolvency.
Sino-Forest: Resolving Intercreditor Disputes in the CCAA
August 2013
Almost ten years ago, Justice Farley commented in Stelco Inc. (Re.) that the Companies' Creditors Arrangement Act [CCAA] was styled as an “Act to facilitate compromises and arrangements between companies and their creditors,” and there was “no mention of this extending by statute to encompass a change of relationship among the creditors vis-à-vis the creditors themselves and not directly involving the company.” And for the most part, this conclusion of law is unassailable: the CCAA is designed not to be the panacea for all grievances but rather to facilitate a compromise of claims against an insolvent company. It would be unduly problematic to hold up a compromise of claims between a debtor and its creditors for a resolution of all disputes that might exist among creditors—the disputes that are unrelated to or do not affect the distribution from the debtor. Published in the August 2013 edition (Volume 25, Nos. 5 & 6) of Commercial Insolvency Reporter.
Litigating Civil Fraud Harder Than It Looks
August 16, 2013
The civil justice system is set up to adjudicate honest disagreements between people who believe in their respective positions, and not for situations where one side is determined to use the system to delay justice in order to defeat it. Written by Munaf Mohamed and David Debenham and published in The Lawyers Weekly.
When Human Rights Compete
August 2013
The Muslim barber at the
barber shop, whose deeply held religious beliefs forbid him from touching a
non-relative woman, or the woman refused a haircut and made to feel like a
second-class citizen; the teenage victim of cyber-bullying who wants to
commence a civil action against her tormenter anonymously or the media who
jealously and rightly protect the openness of our courts; the gay and lesbian
Saskatchewanians, who have a fundamental right to be free from discrimination, or
the two men accused of sexual assault and fighting for their liberty or the
alleged victim, a Muslim, whose faith requires her to veil her face, even in
court. These are some of the problems of "competing rights" that have vexed our
courts and statutory human rights agencies in the past year. Published in the
August
2013 edition of JustMag.ca.
Bennett Jones