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Articles
Technology Procurement Success: Avoiding Common Mistakes
October 2012
One of the cornerstones of our e-Health future is the enabling technology infrastructure (including all of the communications, software, hardware and database technologies) that will combine to deliver the e-Health solutions we will require. As with the procurement and delivery of any cornerstone, it is important to turn our attention to some of the most common and important causes for e-Health technology procurement failure, and how to avoid those pitfalls. Published in Healthcare Information Management & Communications Canada (Vol. 26 No. 3).
Join the Conversation: Isn't It Time for Class Action Reform?
October 30, 2012
Co-authored by Christiaan A. Jordaan and published in the Annual Review of Civil Litigation 2012, Justices Archibald and Echlin, eds. (Toronto: Carswell, 2012). The enactment of Ontario's Class Proceedings Act, 1992 (the "CPA") inaugurated the modern era for class actions in Canada's common law provinces. Nearly 20 years later, the CPA remains virtually unchanged. Given its significance, the lack of any significant conversation to date about "fine tuning" the legislation is puzzling. The authors argue that the low evidentiary standard for certification which has developed in the case law undermines the purposes of the CPA, and that the certification of novel causes of action such as "waiver of tort" exacerbates the problem. The authors propose a recalibration of the CPA to address these issues, along with countervailing changes to preserve access to justice.
Canada Seeing Influx of Retailers: Primer On Compliance
October-November 2012
Many household names in U.S. retailing have recently committed to Canada as a destination in which to expand their global market shares. Target, J. Crew, Justice (Tween), Nordstrom, Zumiez, Express, Tanger Outlet Centers, Kohl's and Marshalls have all established themselves in Canada or announced their intention to do so. Many others are actively exploring Canadian expansion opportunities. Published in the October/November 2012 issue of Executive Counsel.
The Test for Jurisdiction Over Foreign Defendants
October 2012
This April, in the case
of Club Resorts Ltd v Van Breda, the Supreme Court of Canada released a
landmark decision on the legal test for when a Canadian court should assume
jurisdiction over a foreign defendant. For Indian companies doing business in
Canada, Van Breda is an important decision as it defines the circumstances in
which they may be subject to litigation in Canada. Published in the October
2012 edition of India Business Law Journal.
Coping with Coventree: Material or Not Material Remains the Question
October 2012
In its recent decision, Re Coventree Inc., the Ontario Securities Commission (the "Commission") made subtle yet significant changes to securities law jurisprudence. The decision represents a broadening of the term "material change" and it expands the discretion of the Commission to determine when a material change occurred and what constitutes materiality. Given the nature of these changes, counsel will need to keep in mind the Commission's seemingly expansive authority to find violations of the Ontario Securities Act when advising clients. Published in Corporate Liability, vol XVII, No. 2.
U.S. A Big Winner if Canada-EU Sign Trade Deal
September 24, 2012
Negotiations resumed in Ottawa last week to move the Canada-EU Comprehensive Economic and Trade (CETA) deal forward. Europe continues to push Canada on pharmaceutical patents, urging Ottawa to adopt higher standards than the EU is itself even willing to embrace. So far, Canada has refused to agree. Written by John Weekes and published in the Globe and Mail.
Facebook Can Be an Unfriendly Place
September 16, 2012
While the summer has come and gone, employees' photos of their summer activities may not be. If employees post those photos on Facebook or similar sites, employers may be confronted with just what employees did with their time over the summer. And what if, on a day an employee called in sick, you see photos of that same employee enjoying herself at a cottage, sunbathing on a dock with a cocktail in her hand? Published on the Northern Exposure blog.
Development of the BIPI Ligands for Asymmetric Hydrogenation
September 2012
Busacca, C.A., Lorenz, J.C., Saha, A.,
Cheekoori, S., Haddad, N., Reeves, D., Lee, H., Li, Z., Rodriguez, S.,
Senanayake, C.H., "Development of the BIPI ligands for asymmetric hydrogenation"
Catal. Sci. Technol., 2, 2012, 2083.
Priority Issues with Other Mortgages
September 2012
Simon Crawford presented at the Law Society of Upper Canada, Commercial Mortgage Transactions 2012. The idea of this short paper is to first take a high level view of what rules govern mortgagee rights as between one another, and then consider how and why mortgagees may sometimes want to supplement or vary those rules as between them.
Digital Asset Estate Planning
September 2012
This Wealth Matters article discusses the types of digital assets people have and the importance of considering how they are disposed of, both at death and upon incapacity.
Privacy and Freedom of Expression: A Difficult Balance
August 2012
Just as privacy rights gain new footing by the Ontario Court of Appeal's decision to recognize the tort of “intrusion upon seclusion,” Alberta's highest court has taken an important turn by questioning the legitimacy of legislative protections against the collection, use, and disclosure of personal information in the context of a labour dispute. In United Food
and Commercial Workers, Local 401 v. Alberta (Attorney General), the Alberta Court of Appeal declared that the Alberta Personal Information Protection Act unconstitutionally restricts labour unions from recording images of individuals as they cross picket lines. Although the Court chose not to strike or read down the legislation, the panel unanimously condemned
the broad application of PIPA to activities engaging any form of protected free expression. This article introduces the United Food decision and offers a brief discussion of the Court's analysis and conclusions based on existing Charter jurisprudence. Until further consideration by the Supreme Court of Canada, this appellate decision is likely to garner active discussion and debate among privacy law practitioners and scholars alike. Written by Martin P.J. Kratz, Sebastien Gittens and Ciara Toole and published in the Canadian Privacy Law Review, Volume 9, Number 9.
Cross-Border Income Trusts Gain Momentum
August 17, 2012
Argent Energy Trust closes its $212 million initial public offering. As Argent's counsel, Bennett Jones continues its dominance of cross-border income trust financings, sometimes known as foreign asset income trusts.
Canada: Merger Review 2013
August 16, 2012
An extract from the Antitrust Review of the Americas 2013, 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 in PDF format below or online from the Global Competition Review website.
Canada Has to Master the Complexity of the U.S. Political System
August 08, 2012
In three months we will wake up to see who Americans have elected as president, to the House of Representatives and a third of the Senate. We will be deeply affected by the results, whatever the political stripe of those who occupy the White House and take control of the two houses of Congress. Like it or not, Canadians do have a “dog in this hunt.” Geography, history, economics and culture have created a deep integration that goes far beyond a typical foreign relationship. Written by Allan Gotlieb, Michael Kergin and Colin Robertson and published in the Commentary section of the Globe and Mail.
Common Contested Chambers' Applications
August 2012
Common Contested Chambers' Applications contains comprehensive information for conducting common contested applications. Included is a Chambers Application checklist that walks through preparation, service, application, and post-application steps, as well as dozens of sample precedents. Published by the Legal Education Society of Alberta (LESA), the publication is available for purchase from LESA's website.
Federal-Provincial Fiscal Arrangements: Thinking Outside the Box
August 2012
Federal transfers are an important element in preserving the Canadian union. Fundamental structural changes in the global (hence the Canadian) economy will make it increasingly difficult to ensure the equality of public services — a principle
enshrined in the Constitution Act, 1982 — without damaging the economy and threatening national unity. A more productive and achievable objective would be to provide essential public services of reasonable quality to all Canadians through federal investments that will create more provincial own-source income, support the development of competitive manufacturing and services industries, and build the fiscal capacity of lower-income provinces in general and of populous Ontario in particular. Written by David Dodge, Peter Burn, and Richard Dion and published in Policy Options magazine, August 2012, Vol 33, No. 7.
Formalism in Rights Remedies
July 2012
The Supreme Court of Canada's recent decision in Canada (Canadian Human Rights Commission v. Canada (AG) can be seen as a book end to its two judgments last year on Charter remedies, R. v. Conway and Vancouver (City) v. Ward. Although Mowat is not a Charter case, these three decisions are fundamentally similar in that they reveal the Supreme Court's formalistic view of the rule of law. Despite the fact that Conway and Ward extend the range of remedies available in a Charter breach, ultimately, these three decisions reveal a conception of the rule of law where order is preferred over fairness. We respectfully argue that these judgments suggest that, to the Supreme Court, respecting the role of the legislature is more important than vindicating rights. Mowat makes this especially clear. Published in Charter and Human Rights Litigation (Volume XVIII, No. 2) by Federated Press.
Fully Appreciating Ontario's New Summary Judgment Rule
July 2012
In December 2011, the Court of Appeal for Ontario provided much-needed clarification on the scope and purpose of Ontario's new summary judgment rule (Combined Air Mechanical Services Inc. v Flesch, 2011 ONCA 764). The issue was important enough that the Court joined together five very different appeals from summary judgment motions, and the appeals were heard by a rare five-judge civil panel. Published in the July 2012 edition of Civil Writes- the CBA National Civil Litigation Section Newsletter.
Bennett Jones