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Articles
Policing Yourself
May 16, 2011
Directors' obligations arise from a variety of sources. At base is the duty set out in corporate legislation such as the Canada Business Corporations Act (CBCA), which requires directors to act honestly and in good faith, with a view to the best interests of the corporation, exercising the due diligence that a reasonably prudent person would in the circumstances,and without conflict. Published in the May 2011 issue of Lexpert magazine as part of Barry Reiter's regular column.
Patient Safety in eHealth Systems
May 05, 2011
Michael Whitt's article on "Patient Safety in eHealth Systems" was published 5 May 2011 in Canadian Healthcare Technology magazine's e-Messenger blog. The article outlines aspects of Medical Device regulation of software, and the work of ISO Technical Committee 215 (TC215) Working Group on Regulation of Patient Safety in Healthcare IT Systems.
Top 10 Differences Between US and Canadian IP Litigation
May 04, 2011
American companies are frequently involved in intellectual property (IP) disputes in Canada. While litigation procedures in Canadian courts are substantially similar to those in the United States, there are noteworthy differences.
Letters Rogatory in Intellectual Property Cases
May 01, 2011
Intellectual property litigation is an increasingly international business. Compelling a foreign witness to provide discovery or trial evidence can be a key part of the proceedings.
Overcome the Challenges of Selling IT in Canada
May 01, 2011
Duncan Card, "Overcome the Challenges of Selling IT in Canada". Published in India Business Law Journal, Canada-India trade & investment section.
Testamentary Capacity and the Taking of Instructions
May 01, 2011
This paper examines the law relating to testamentary capacity including a review of recent decisions, followed by a discussion of what the cases tell us about a lawyer's duties and obligations when taking instructions or attending to the signing of a will where testamentary capacity might be an issue. Presented to the Legal Education Society of Alberta 44th Annual Banff Refresher in Lake Louise, Alberta.
Getting to Yes on the Certification Question
April 27, 2011
Consent certification orders to facilitate a class settlement have a well-established presence in class action litigation. The rationale for a consent certification in this context is straightforward. Both sides receive a benefit. The plaintiffs obviously receive the settlement consideration while the defendant will be able to put the entire matter behind it in circumstances in which it remains able to exercise a degree of control. For example, the defendant will likely be able to negotiate the class definition, the content and method of dissemination of the notice, as well as the identity of any claims administrator and, potentially, protocols for the administration of claims. However, although the real battleground in class proceedings is often the motion for certification, some of the above benefits may be available in the context of contested litigation as well. As in all litigation, settlements occur when both sides see value for themselves in the deal they are making. The following lists some of the factors that may lead even defence counsel to consider consenting to certification.
Making NAFTA Work Better
April 19, 2011
Presented by John Weekes at the Fourth Annual Donald B Regan Distinguished Lecture Series at the University of St Thomas in Minneapolis.
The Politics of Hate Speech: A Case Comment on Warman v. Lemire
April 18, 2011
In September 2009, the Canadian Human Rights Tribunal waded into a highly public and acrimonious debate about the role of human rights tribunals and commissions, especially in policing hate speech. In Warman v. Lemire, the Tribunal held that section 13(1) of the Canadian Human Rights Act (CHRA), which prohibits the communication of hate messages, infringed the constitutional guarantee of freedom of expression, section 2(b) of the Charter of Rights and Freedoms. The decision added to a firestorm of media, political and academic debate about whether anti-discrimination statutes should prohibit hate speech. The Warman decision is complicated by a twenty year-old Supreme Court ruling, in a 4-3 decision, that a predecessor provision in the CHRA is constitutional. This article originally appeared in volume 19 of Constitutional Forum constitutionnel published by the Centre for Constitutional Studies.
The Equality Rights Test
April 15, 2011
Counsel in equality rights cases have spent a lot of time in recent years in front of the mirror — specifically, trying to figure out the appropriate “mirror comparator group” to meet the s. 15 equality rights test. This article originally appeared in the April 15, 2011, issue of The Lawyers Weekly published by LexisNexis Canada Inc.
Hard Choices Are Coming on Health Care
April 11, 2011
As societies become richer, they tend to accommodate the rising demands and expectations of their citizens for more and better-quality health-care services. The value that citizens place on preserving and extending a good-quality life becomes more important as their consumption of other goods and services expands with their income. Published in the Ottawa Citizen.
Swiss Cheese D&O Insurance
April 11, 2011
Directors' and officers' insurance contracts are often riddled with clauses that, while seemingly reasonable and well-intentioned, can lead to bizarre court decisions. Published in the April 2011 issue of Lexpert magazine as part of Barry Reiter's regular column.
B.C. Landfill Merger Challenge: It Ain't (Always) Over When It's Over
April 06, 2011
It has always been clear under Canada's Competition Act that any merger can be challenged by the Competition Bureau after its closing. In practice, however, that rarely ever occurs. So it surprised many observers when, on January 24th, 2011, the Bureau filed a notice of application with the Competition Tribunal seeking an order to dissolve a completed and non-notifiable merger between two hazardous waste landfill owners on the basis that it substantially prevented competition in the relevant market. This case, along with a recently announced intention to amend the Merger Enforcement Guidelines, may signal a more aggressive and expansive approach to merger reviews by the Bureau. Originally published by the CCH Competition Law Clearinghouse.
The Camera and the Colony: A Comment on Alberta v. Hutterian Brethren of Wilson Colony
2011
On October 15, 2009, the Supreme Court of Canada refused to
re-hear arguments to appeal its decision in Alberta v. Hutterian Brethren of
Wilson Colony. This marked the end of a six-year legal battle to have the
universal photo requirement in Alberta's driver-licensing system struck down.
The Hutterian litigants were unsuccessful in persuading Canada's highest court
that the impugned regulation was not justified in a free and democratic society.
Published in Saskatchewan Law Review, volume 74.
2011: The Promising ‘Year of India in Canada'
April 2011
The year 2011 has been dubbed the “year of India in Canada” by the Indian and Canadian governments. While the main focus may be on the International Indian Film Academy Awards and Pravasi Bharatiya Divas to be hosted in Toronto in June, numerous recent events have set the stage for 2011 to be a banner year for economic and business relations between the two countries. Originally published in the April 2011 edition of India Business Law Journal.
Summary Judgment Motion Denied in Patent Case
April 01, 2011
Whether the summary trial procedure will provide a timely and cost effective way of determining substantive issues in patent cases remains to be seen. Published in Carswell's Legal Alert, Volume 30, Number 1.
Harper Talks Trade, But Is This Just An Outreach Exercise?
March 31, 2011
The news that Conservative leader Stephen Harper is touting the importance of concluding trade agreements with the European Union and India is, by and large, good news. It's good because ever since the epic free-trade election of 1988, it has been unusual for politicians to speak out in favour of liberalizing trade during an election campaign. The "trade" issue in recent elections has consisted mainly of all the parties falling over each other to promise not to do anything that would have the slightest impact on our protectionist policies in the dairy and poultry sectors.
However, it leaves open a key question. Published in The Globe and Mail online.
Messy Policies for a Messy World
March 29, 2011
Over the last half century, economic policy making has always had to cope with economic situations that are somewhat messy and uncertain. This challenge has become more daunting over time as issues and shocks to address have proliferated along with the increasing integration and liberalization of the world economy. What I will try to do today is to sketch some of the manifestations of the increased integration of the world economy, identify the key issues and shocks that policy makers have to deal with at present, and outline what policies are underway and should be expected to bring "strong, sustained, balanced growth", to use the same words as the G-20 communiqués. All along I will try to indicate the interdependencies between problems and policies that make the present economic situation particularly complicated for economists and policy makers to deal with. Presented at the Ottawa Economics Association's Annual Policy Conference in Ottawa, ON.
Antitrust Class Actions: A Tale of Two Countries
Spring 2011
Antitrust class actions confront companies in a wide range of industries with high stakes litigation, and the continued globalization of commerce has increasingly given rise to simultaneous exposure and potential liability in multiple jurisdictions. The United States and Canada exemplify this modern reality: both authorize private parties to assert antitrust class action claims and successive free trade agreements have led to extensive cross-border commerce between the two countries. So it is not surprising that parties to antitrust class action cases increasingly are involved in proceedings in both jurisdictions at the same time. Published in the Spring 2011 edition of Antitrust (Vol. 25, No.2) by the American Bar Association.
Just A Minute?
March 08, 2011
Much good can come from hiring a corporate secretary to effectively draw up minutes for meetings of the board of directors. Dangers lurk in doing the job poorly. Published in the March 2011 issue of Lexpert magazine.
Foreign Direct Investment Restrictions in Canada
March 2011
This paper examines restrictions on foreign
investment in Canada and recent efforts by the Federal Government of Canada to
unglue such impediments. The paper was presented to the American Bar
Association, Section of International Law, Spring Meeting 2011 in Washington,
D.C.
The Road to the Promised Land Runs Past Conway: Administrative Tribunals and Charter Remedies
March 01, 2011
In the 30 years since the Canadian Charter of Rights and Freedoms was proclaimed, one of the most litigated issues has been the role of administrative tribunals in deciding Charter claims. Early Supreme Court jurisprudence suggested that the only provincial superior courts had the jurisdiction to decide Charter claims and remedy a Charter breach. Over time, and in concert with the expansion of the administrative state in Canada, the Supreme Court recognized that the administrative tribunals could in fact decide Charter questions. However, the issue of whether they could remedy a Charter breach became bogged down by the test from Mills v. R.. tribunals and courts had to analyze the tribunal's jurisdiction on a case-by-case basis by examining the remedy being sought, as opposed to analyzing jurisdiction on an institutional basis, which would examine the tribunal's statutory mandate and function. This article originally appeared in Volume 48, No. 3 of the Alberta Law Review.
Bed Bugs Raise Legal Issues That Could Bite the Unwary
March 2011
One of the most unexpected and notable issues of 2010 was the rapid re-emergence of bed bugs as a public health problem. Bed bugs are small oval-shaped insects approximately the size of an apple seed that cannot jump or fly. Most notoriously, they are known for biting human skin and leaving large, itchy skin welts. Published in the March 2011 (Vol. 20, No. 3) edition of Environews, the newsletter of the Environmental Law Section of the Ontario Bar Association.
A Shaved Head and Microwave Food Policy — Human Rights Violations?
February 28, 2011
It's amazing the issues that pop up in front of human rights tribunals across Canada. Recently, the Manitoba Human Rights Commission was asked whether it is discriminatory to fire an employee for shaving her head. On an equally interesting level, the Ontario Human Rights Tribunal was asked whether it is discriminatory to discipline an employee for microwaving food that created an odour unpleasant to other employees. Do either of these scenarios constitute a human rights violation? Not surprisingly, the answer is “it depends.” Published on the HR Hero blog.
Bennett Jones