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Articles
Incarceration Possible Where Parties In Contempt
October 2011
Plaintiffs in civil
fraud cases often face the daunting prospect of a pyrrhic victory. While
plaintiffs might successfully obtain judgment, a defendant fraudster's refusal
to comply with court orders that assist in facilitating collection of such
judgments may mean that financial recovery comes after inordinate delay, if at
all. Aware of the discouraging impact that can have on the rule of law, courts
have demonstrated a willingness to incarcerate parties found in contempt of
court orders. Plaintiffs attempting to execute judgments on uncooperative
defendants can take some comfort from recent cases granting contempt orders,
including custodial sentences, against defendants that were unwilling to
participate honestly in the civil litigation process.Authored by Maureen
M. Ward and Kirsten A. Thoreson. Published in Carswell's Legal Alert,
Volume 30, Number 7, pp. 49-51. Reproduced by permission of Carswell, a
division of Thomson Reuters Canada Limited.
Directors' Duties in Various Corporate Forms
September 2011
What are directors' duties across various corporate forms, and how should directors protect themselves from the distinctive risks they may encounter? This article will tackle these subjects at a high level; for the 750-page version, see my Directors' Duties in Canada, 4th Edition, published by CCH in 2009. This article originally appeared in the September 2011 edition of Director Journal, a publication of the Institute of Corporate Directors (ICD). Permission has been granted by the ICD to use this article for non-commercial purposes including research, educational materials and online resources.
Rules in Private: Part II
September 2011
Private companies often require very little governance. But as a business begins to emerge from obscurity and attract an increasing number of investors, it may become desirable to introduce new measures. These are represented by an agreement signed by shareholders called a “unanimous shareholders agreement” (USA). Published in the September 2011 issue of Lexpert magazine as part of Barry Reiter's regular column.
Some Civility...Please?
August 17, 2011
The strange metaphor “Washington is broken” became more firmly embedded in common wisdom during the recent debt-ceiling debate. But the debate revealed that Washington isn't simply broken; it's also rude. As some renew calls for reform to address government dysfunction, perhaps the best place to start would be to ask public figures to be more polite. Written by Michael Eizenga and Jordan Eizenga and published on The Mark online.
We Must Restore Our Diplomatic Core
August 08, 2011
With his election victory, Stephen Harper has achieved a new place among world leaders. Admired for his political skills as the leader of an insurgent movement and then, as a prime minister who jockeyed a pair of minority governments into a majority, he's also recognized for steering Canada's economy through recessionary waters that are still threatening his fellow G7 leaders. Written by Allan Gotlieb and Colin Robertson and published in the Opinion section of The Globe and Mail.
Investing in Carbon Credits and Renewable Energy
July/August 2011
The need to move Canada and India to a lower carbon emission profile creates opportunities for astute investors and businesses representatives in both countries.Published in the India Business Law Journal, Volume 5, Issue 2.
Investment Arbitration and the Canada-EU Comprehensive Economic and Trade Agreement
July 2011
With the seventh round of negotiations between Canada and the European Union over the Canada-EU Comprehensive Economic and Trade Agreement (CETA) completed this April, and the eighth round scheduled for July, the involved nations are closer than ever to being subject to the investment arbitration provisions of another free trade agreement. Written by Craig Garbe and published in Volume 1, Issue 4 of Investment Treaty News Quarterly.
Personal Health Information - The Patient's File - Refresher June 2011
June/July 2011
As we see information systems in the healthcare setting mature and become more widely integrated, we believe that there is value in revisiting our understanding of record-keeping by healthcare professionals with respect to their patients. This involves understanding that information is different from the media on which it is stored or displayed, that healthcare delivery systems require portions of that information for efficient and effective operations, payors need access to portions of that information, governments and very large provider organizations require epidemiologic and “best practices” analyses of the information. Reproduced with permission of the publisher from Telehealth Law, Vol. 11, No. 4, June/July, 2011.
Rules In Private: Part I
July 01, 2011
Governance at private companies can be simple. But when stakeholder interests aren't aligned, a company begins to slide into the realm of independent directors and shareholder agreements. Published in the July/August 2011 issue of Lexpert magazine as part of Barry Reiter's regular column.
Shapray v. British Columbia (Securities Commission): Freedom of Expression and the Viability of Blanket Non-disclosure Provisions in Securities Regulation
July 01, 2011
In Shapray v. British Columbia(Securities Commission), the British Columbia Court of Appeal found that a blanket non-disclosure provision in the British Columbia Securities Act, which applies to any party under investigation by the British Columbia Securities Commission, to be an unjustifiable infringement of the applicant's freedom of expression under s. 2(b) of the Canadian Charter of Rights and Freedoms. On the one hand, Shapray can be said to represent an incremental re-tooling of constitutional values in favour of individual rights over collective, commercial interests. On the other hand, it could be characterized as mere constitutional housekeeping, in which pre-Charter legislation is reviewed against a contemporary standard. On either interpretation, Shapray strongly limits the powers of securities regulators to impose gag orders in British Columbia, a result which could potentially lead to similar decisions in other jurisdictions. With the benefit of these premises, we review both the British Columbia Supreme Court's and Court of Appeal's decisions. Specifically, we discuss two issues: first, what the reasoning of the court in Shapray means for other jurisdictions, with particular emphasis on the Ontario Securities Act; and second, the constitutionality of comparable provisions in the proposed Canadian Securities Act. Published in Canadian Business Law Journal, Volume 51 at 259.
Managing the Risk Related to the Rogue Employee Through Insurance
June 2011
Canada has one of the highest rates of corporate type fraud in the industrialized world, representing a real and substantial risk to business. In the Global Economic Crime Survey 2009, PricewaterhouseCoopers found that economic crime in Canada was at its highest level in six years. Further, a recent KPMG survey found that 69% of frauds were inside jobs. If not properly managed, this is a problem that can take a significant toll and even lead to the failure of a business. Yet, companies are not defenseless against potential threat; by understanding the options available, the risk of a rogue employee can be mitigated. Published in the June 2011 edition of Pulse by the Ontario Risk and Insurance Management Society.
M&A in Canadian Oil and Gas - Tips and Trends
June 23, 2011
The Canadian oil and gas sector is competitive and highly fragmented, with small, intermediate and large players active primarily in the Western Canadian Sedimentary Basin. The sector has traditionally had, and continues to have, significant M&A activity, with domestic and foreign intermediate and larger players acquiring smaller players. Smaller companies often acquire non-core assets from larger players to rationalize their asset portfolios. Published in the June/July 2011 issue of Executive Counsel magazine.
Tailor Trade Deals to Fit a New Kind of Manufacturer
June 17, 2011
Now that the Conservative government of Stephen Harper has promised to move forward with its “strong and ambitious Free Trade Agreement agenda,” it is time to reflect on how this agenda will interact with the changing nature of manufacturing in Canada. Published in the The Globe and Mail online.
Independence: A Subtle Approach
June 13, 2011
The movement to regulate corporate governance continues to pick up pace. After an initial focus on audit committees, the more recent target has been compensation committees, responsible for managing the executive compensation process. Published in the June 2011 issue of Lexpert magazine as part of Barry Reiter's regular column.
India, Alberta & Saskatchewan: Natural Partners
June 01, 2011
Last year's $40 billion bid for Canada's largest potash company by Australian miner BHP Billiton, while ultimately unsuccessful, helped focus the spotlight on the abundant natural resources of Canada and the unique mix of resources available in Saskatchewan and Alberta in particular. With its phenomenal continuing growth, India's appetite for resources of every variety has also grown exponentially, and the resources available in Alberta and Saskatchewan stand out as perhaps the most compatible with India's needs. Published in the Indo-Canada Chamber of Commerce's Annual Magazine 2011.
Liability of Professionals in a Post-Financial Crisis Milieu: A 'Made in Canada' Tempered Response
June 01, 2011
In the past few years, the global economy has witnessed a financial and credit crisis resulting in a so-called global recession. In Canada, while the impact of the "crisis" was less severe than in other countries, it was significant enough to warrant the government's attention and purported intervention, in an attempt to (among other things) decrease the risks to Canada's capital markets and to protect investors. In the last year, the federal government has introduced new proposed securities legislation and made amendments to the Canadian Criminal Code. With respect to common law claims, while Canada has not seen a significant direct correlation between the financial crisis and an increase in civil claims, securities class actions appear to be on the rise and courts are arguably demonstrating a more "plaintiff-friendly" approach to the use of such actions as a supplement to regulation to achieve behaviour modification. Published in Corporate Securities and Financial Law Report, Vol. 16, No. 3.
Liability Without Borders - the Challenge of Being a Director and Officer in a Global Economy: Part II
Second Quarter Publication
Class Actions represent significant challenges for corporations, their officers and directors. These challenges are heightened by increasing globalization and economic integration. In Part II of this article on the consequences for corporate directors and officers of globalization and increased economic integration, trends in transnational securities class actions, including strategic concerns such as certification of global and national classes, document production issues and the impact of regulatory proceedings, are examined. Published in Corporate Liability Journal, Vol. 16, No. 2.
Transfer Pricing: Key to Higher Profit in Canada
June 01, 2011
Optimizing the opportunities for Indian companies in Canada should include planning to minimize income tax, customs duties, and value-added taxes. Originally published in the June 2011 edition of India Business Law Journal.
Class actions in Canada are on the rise
May 2011
Cheryl Woodin is the co-author of "Class actions in Canada are on the rise," published in Canadian Insurance Top Broker.
Getting Past the Doha Round Crisis: Moving Forward In the WTO
May 28, 2011
The Doha Round is stuck. This essay argues that finishing Doha would be best, but if this is impossible, we should admit it and move on. Investing more resources and credibility in a failure would only damage the WTO and multilateral cooperation. Leaders should turn their energies towards building an agenda for the WTO's future work that responds to 21st century interests. Getting this right is critical; the WTO cannot afford another failure if Doha dies. An early harvest is an excellent idea, but only if it can be done quickly. The full text of the article can be found at VoxEU.org.
Movin' On Up: Effective Motion Advocacy
May 23, 2011
In the era of the “vanishing trial,” motions provide an excellent opportunity to gain skills in written and oral advocacy, legal argument, and the presentation of evidence. In most actions, there will be at least one interlocutory motion, and the result of a motion can have a substantial impact on the outcome of an action. Some motions, such as motions for injunctions or security for costs, can have an obvious strategic benefit. But even discovery motions can also change the direction of the litigation. Published in the fourth instalment of Canadian Lawyer's Arguably the Best series on improving litigation skills.
Bennett Jones