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Articles
A Clinical and Medico-Legal Review of Tubal Ligation in Canada
July 2012
Female sterilization is one of the most common gynaecological procedures performed in Canada. In a 12-month period in 2009-2010 there were 24,023 tubal ligations performed in Canada. Tubal ligation was the third most common gynaecological procedure to provoke litigation, involving 15 percent of cases and 12 percent of costs associated with gynaecology cases. Written by Paul Martyn and Valerie Prather and published in the Journal of Obstetrics and Gynaecology Canada 2012; 34(7): 683-687.
Tough Choices Ahead for Harper's Trade Strategy
June 08, 2012
The first big test for Prime Minister Harper's ambitious trade negotiations agenda will come late this year with the expected climax of the negotiations between Canada and the EU. The outcome will determine the credibility of the government's trade agenda. A commentary piece written by John Weekes and published in iPolitics.
Directors Liable For Authorizing Dividends Where Company In Distress
June 01, 2012
Canadian corporate statutes permit companies t6 pay dividends to shareholders in money, property or by the issuance of paid shares of the corporation. Subject to any restrictions in a company's articles of incorporation, the payment of dividends is in the discretion of the company's board of directors. Published in Carswell's Legal Alert, Volume 31, Number 3.
Environmental Class Actions in Canada: Are The Doors Opening or Closing?
May 30, 2012
A lack of success by environmental class members in Canada's common law provinces stands in stark contrast to Quebec where plaintiffs have found significant favour with the courts at both the certification and trial stages. In light of the Supreme Court's decision not to hear the appeal in Smith v Inco, Canadians now find themselves with two disparate regimes in Quebec and the common law provinces. This paper was prepared for the Ontario Bar Association's The Anatomy of an Environmental Civil Action.
Ontario Superior Court Refuses to Certify Proposed Misclassification Overtime Action
May 29, 2012
Justice George Strathy of the Ontario Superior Court has
refused to certify a proposed class action commenced against the Canadian
Imperial Bank of Commerce and CIBC World Markets on behalf of a class of
employees alleging that their jobs were Information and misclassified in a way
that wrongfully defeated their entitlement to be paid overtime. Co-authored by Amanda C. McLachlan and published in CCH Canadian Limited's
Labour Notes newsletter, Number
1451.
Canada's Anti-Spam Legislation
Winter 2012
Martin Kratz and Preet Bell contributed "Canada's Anti-Spam Legislation" to The Winston Report, Winter 2012, page 13.
Internet Access
2012
Martin Kratz contributed "Internet Access" to the Canadian Radio-Television Commission (CRTC) Telecom Regulatory Policy CRTC 2011-703, E-Commerce Law Reports, [2012] ECLR Vol. 11, Issue 6, page 8.
Licensing
2012
Martin Kratz contributed "Licensing" to the updated Volume of Intellectual Property, Canadian Forms and Precedents, (loose leaf service) Butterworths, 2012.
Canada – Oil and Gas Section of RMMLF Mineral Law Newsletter, Volume XXIX No. 2
May 2012
Eden Oliver, Michael Barrett, Karen Beattie, Donald Greenfield, and Chelsea Nickles are reporters for the Canada – Oil & Gas section of the Rocky Mountain Mineral Law Foundation's Mineral Law Newsletter, Volume XXIX, Number 2, 2012.
Recent Developments in the Law of Judicial Review
April 19, 2012
Co-authored by Christiaan A. Jordaan. Following the Supreme Court of Canada's reworking of its approach to judicial review in Dunsmuir v. New Brunswick (Board of Management), 2008 SCC 9, there was some concern that the new approach would not be workable for the entire spectrum of actors subject to administrative law. Some also worried that the Dunsmuir decision would inaugurate a trend toward more intrusive review by the courts. In the succeeding years, these concerns have abated as the Dunsmuir approach has been flexibly applied to a wide range of circumstances, and recent Supreme Court jurisprudence displays a continuing trend toward less intrusive review. The authors prepared this paper for the Canadian Institute's Fundamentals of Administrative Law & Practice, and previously presented papers on this topic to the same conference in each of 2009, 2010 and 2011.
Tribunal Standing on Judicial Review
April 19, 2012
Co-authored by Christiaan A. Jordaan. The Ontario Court of Appeal's 2005 decision in Ontario (Children's Lawyer) v. Ontario (Information & Privacy Commissioner) (2005), 253 D.L.R. (4th) 489 (Ont. C.A.) inaugurated a change to the law regarding when an administrative tribunal should have standing on a judicial review of its own decision. Formerly, tribunals were usually permitted only to make submissions on jurisdictional issues. Afterward, the scope of a tribunal's participation will depend on contextual factors, and in particular by whether its submissions will be of assistance to the court. A continuing trend away from formalism and toward a more flexible and practical approach to this issue continues to be apparent. The authors prepared this paper for the Canadian Institute's Fundamentals of Administrative Law & Practice, and previously presented papers on this topic to the same conference in each of 2009, 2010 and 2011.
Conducting Internal Company Investigations
2012 Second Quarter Publication
A properly planned and conducted internal investigation may be central to achieving the best possible outcome. But how should internal investigations be conducted? What should you consider when planning and conducting an investigation? Jeffrey Leon, Alan Gardner and Preet Bell provide what amounts to a checklist for corporations confronted with the need to conduct investigations of this type. Published in Corporate Liability Journal, Vol. XVII, No. 2.
Alberta Court Denies Appeal of Construction Approval for Coal-Fired Power Plant
March 2012
In an interim decision, the Alberta Utilities Commission (Commission) granted approval to Maxim Power Corp. (Maxim) to construct a 500 megawatt coal-fired power plant (Plant) in the area of Grande Cache, Alberta. Pembina Institute for Appropriate Development v. Alberta (Utilities Commission), 2011 ABCA 302. The Pembina Institute for Appropriate Development (Pembina) sought leave to appeal this decision. Before the court were two issues: whether Pembina had standing to seek leave to appeal as it had not been in intervenor before the Commission, and whether the issues on appeal were moot as the Commission had subsequently rendered its final decision approving the Plant. Id. Published in the Canada – Oil & Gas section of the Rocky Mountain Mineral Law Foundation's Mineral Law Newsletter, Volume 29, Number 1, 2012.
Alberta Court Dismisses Mandatory Injunction Based on CAPL “Take in Kind” Rights
March 2012
On December 23, 2011, the Alberta Court of Queen's Bench dismissed an application for a mandatory injunction that would have forced the operator of jointly owned gas rights to undertake work to enable the nonoperator to physically take its raw gas at a pipeline header located upstream of a gas processing plant. Husky Oil Operations Ltd. v. Trident Exploration Corp., 2011 ABQB (unreported). In doing so, the court provided some guidance on the scope “take in kind” rights under the Canadian Association of Petroleum Landmen's (CAPL) operating procedures. Published in the Canada – Oil & Gas section of the Rocky Mountain Mineral Law Foundation's Mineral Law Newsletter, Volume 29, Number 1, 2012.
Canada – Oil and Gas Section of RMMLF Mineral Law Newsletter, Volume XXIX
March 2012
Eden Oliver, Michael Barrett, Karen Beattie, Donald Greenfield, and Chelsea Nickles are reporters for the Canada – Oil & Gas section of the Rocky Mountain Mineral Law Foundation's Mineral Law Newsletter, Volume 29, Number 1, 2012.
Climate Change Developments: Canada's Withdrawal from the Kyoto Protocol and CCS Commitments
March 2012
There are two significant developments in Canada's regulatory climate change landscape. First, Canada became the first country to formally withdraw from the Kyoto Protocol (Protocol). The Protocol, which was originally ratified by Canada in 2002, came into force in 2005 and required Canada to reduce certain greenhouse gas emissions 6% below 1990 levels by 2012. In December 2011, Canada's Environment Minister, Peter Kent, attended Negotiations that were designed to create a second commitment period for the Protocol in Durban, South Africa. Upon Kent's return from Durban, he announced Canada's decision to forgo its commitments pursuant to the Protocol for a second commitment period, stating that the Protocol does not represent “the path forward” in addressing climate change. “Canada to withdraw from Kyoto Protocol,” BBC News, Dec. 13, 2011. Published in the Canada – Oil & Gas section of the Rocky Mountain Mineral Law Foundation's Mineral Law Newsletter, Volume 29, Number 1, 2012.
National Energy Board Releases Filing Requirements for Future Arctic Offshore Drilling Applications
March 2012
On December 15, 2011, the NEB released filing requirements for future applications to drill offshore in the Canadian Arctic. Refer to “Filing Requirements for Offshore Drilling in the Canadian Arctic,”National Energy Board, (search “filing requirements for offshore drilling”). Published in the Canada – Oil & Gas section of the Rocky Mountain Mineral Law Foundation's Mineral Law Newsletter, Volume 29, Number 1, 2012.
NEB Releases Energy Future Report
March 2012
On November 22, 2011, the NEB released the report entitled Canada's Energy Future: Energy Supply and Demand Projections to 2035, a continuation of its Energy Futures series. This report updates the prior full report, released in 2007, which gave energy predictions until 2030. “Canada's Energy Future: Energy Supply and Demand Projections to 2035,” National Energy Board (Nov. 2011). Published in the Canada – Oil & Gas section of the Rocky Mountain Mineral Law Foundation's Mineral Law Newsletter, Volume 29, Number 1, 2012.
NEB Releases Winter Energy Outlook
March 2012
On November 17, 2011, the National Energy Board (NEB) released its Winter Energy Outlook (Outlook). The Outlook focuses on world economic uncertainty and expected cold weather in North America as the primary driving forces behind demand for energy and related commodities. “Winter Energy Outlook 2011-2012 –Adjusting to Economic Uncertainty, “ National Energy Board (Nov, 2011), (search “energy outlook 2011-2012”). Published in the Canada – Oil & Gas section of the Rocky Mountain Mineral Law Foundation's Mineral Law Newsletter, Volume 29, Number 1, 2012.
Community Hearings on Enbridge Northern Gateway Project Begin
March 2012
The Enbridge Northern Gateway Project (Project) involves the construction of two pipelines running from near Edmonton, Alberta, to a new marine terminal in Kitimat, British Columbia. The west-flowing pipeline will carry petroleum for export, and the east-flowing pipeline will import condensate. Northern Gateway Pipelines Inc. (Northern) is seeking regulatory approval for the Project. Pursuant to environmental and energy legislation, a Joint Review Panel (JRP) has been established to review the Project and make a final decision on whether or not to approve it. For information and relevant documents, refer to “Enbridge Northern Gateway Project Joint Review Panel,” National Energy Board. Published in the Canada – Oil & Gas section of the Rocky Mountain Mineral Law Foundation's Mineral Law Newsletter, Volume 29, Number 1, 2012.
Cloud Computing: A Primer for Outsource Lawyers 2012
March 2012
The potential 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 and
application resources. Published in PLC Global's Outsourcing
Multi-jurisdictional Guide.
Outsourcing: Canada
March 2012
This Q&A guide gives a high-level overview of legal and regulatory requirements on different types of outsourcing; commonly used legal structures; procurement processes; and formalities required for transferring or leasing assets. The article also contains a guide to transferring employees; structuring employee arrangements (including any notice, information and consultation obligations); and calculating redundancy pay. It also covers data protection issues; customer remedies and protections; and the tax issues arising on an outsourcing. Published in PLC Global's Outsourcing Multi-jurisdictional Guide.
Bennett Jones