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Articles
Computer Security 2010
2010
Computer Security updated chapter of chapter of Electronic Commerce Law, (loose leaf service) (2010) Carswell Legal Publications, Toronto, Canada, written by Martin Kratz
Standing Up for Canadian Victims of White-collar Crime
December 23, 2010
All too often, victims of white-collar crime have seen their life savings wiped out only to watch the people responsible walk away. Sadly, making sure that fraudsters pay the price has not been a priority for the Canadian justice system, which has earned the unenviable reputation of being soft on investment fraud – and rightly so.
Energy (Oil & Gas)
December 20, 2010
Three main trends are apparent in the oil and gas industry in 2011. First, there remains an ambivalent attitude in some quarters towards foreign investment in the sector. The Federal Government wants to encourage companies to continue to access foreign capital while also balancing concerns about the potential impact that such investments may have on national security. Secondly, more favourable royalty rates for conventional oil and gas have come into effect in Alberta in response to the growing importance and competitiveness of Saskatchewan and British Columbia in the sector. Finally, there is increasing concern about the impact of oil and gas production on the environment. Reprinted with permission from The 2011 Lexpert®/American Lawyer Guide to the Leading 500 Lawyers in Canada.
Drilling for Cash
December 2010
The Drilling Royalty
Credit Regulation, Alta. Reg. 245/ 2009 (the "Regulation"), which
came into force on April 1, 2009, created a two-year stimulus program commencing
on April 2009 and ending on April 2011 (the "Program"). Pursuant to the
Program, for qualifying drilling on eligible wells, the Alberta government will
award drilling royalty credits ("DRCs") to royalty payers in respect of their
royalty obligations under the Natural Gas Royalty Regulation, 2009,
Alta. Reg. 221/ 2008 (the "Natural Gas Royalty Regulation"), the
Petroleum Royalty Regulation, 2009, Alta. Reg. 222/ 2008 (the
"Petroleum Royalty Regulation") and Oil Sands Royalty
Regulation, 2009, Alta. Reg. 223/ 2008 (the "Oil Sands Royalty
Regulation") for the fiscal years of 2009/2010 and 2010/2011 ("Royalty
Obligations"). The Regulation expires on June 30, 2017. Co-authored by Kyle
Rousay; published in the December 2010 issue of The
Negotiator magazine.
Recent Regulatory and Legislative Developments of Interest to Energy Lawyers (2010)
December 2010
This article identifies recent regulatory and legislative developments of interest to oil and gas lawyers. The authors survey a variety of subject areas, examining decisions of key regulatory agencies such as the National Energy Board, the Ontario Energy Board, the Alberta Energy Resources Conservation Board, the Alberta Surface Rights Board, and the Alberta Utilities Commission, as well as related court decisions. In addition, the authors review a variety of key policy and legislative changes from the federal and provincial levels. Published in the Petroleum Law Edition of Alberta Law Review, Volume 48, No 2.
When Commissions Overstep
December 01, 2010
Securities commissions are using a “public interest” rationale to undermine a company's ability to defend itself from a hostile take-over — and a recent court ruling actually supports them. Published in the November/December 2010 issue of Lexpert magazine.
Update: R. v. Syncrude Canada Ltd.
December 2010
Shortly after a major oil sands operator was ordered to pay $3 million for an incident that killed over a thousand birds, another incident of duck fatalities occurred. This time, however, the oil sands operator may be able to take advantage of the due diligence defence. Published in the December 2010 (Vol. 20, No. 2) edition of Environews, the newsletter of the Environmental Law Section of the Ontario Bar Association.
The Duty of Good Faith in Patent Prosecution: Where Will It Arise Next?
November 05, 2010
This paper reviews the court decisions which have found or rejected a duty of good faith in dealing with the Patent Office in Canada, as well as the relevant sections of the Patent Act and Patent Rules.
“Compliance with Laws” – Representation and Warranty in Large System Procurement Agreements
November 01, 2010
All large-scale IT system procurement or implementation or business-as-usual contract documents include terms and conditions which are representations or warranties made by one party to the benefit of the other. When a representation or warranty is breached by the party who made or makes it, legal consequences typically follow. Published in the Third Quarter (November 2010) issue of HCM&C. This article was the Most Popular Article in Canada in November 2010 on Mondaq.
Canada: Merger Review 2010
October 19, 2010
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.
Canada Must Rebuild its Diplomatic Resources
October 13, 2010
Canada's failed pursuit of a seat on the world's most
powerful body – the United Nations Security Council –
puts the spotlight on our performance beyond our borders, the
strength of which depends on the quality of our diplomacy and the
skills of our diplomats. Written by Allan Gotlieb and Colin
Robertson and published in the Opinion section of
The Globe and Mail.
Dual-Class Shares: Not the Enemy
October 07, 2010
Shareholder activists like to project democratic values onto
corporate share structures. But multiple-voting shares can be
useful — for common and controlling shareholders alike.
Published in the October 2010 issue of Lexpert magazine as
part of Barry Reiter's regular column.
Canada Must Show Leadership on Trade
October 06, 2010
Big challenges and opportunities face Canadian trade negotiators in
the months ahead, as a visit to the website of the Department of
Foreign Affairs and International Trade will show you. What's
missing is a signal from the political masters in Ottawa that they
have the willpower to make trade decisions that will benefit most
Canadians, but will certainly be unpopular in some parts of the
country. Published on the Economy Lab page of
The Globe and Mail online.
Case Comment: R. v. Syncrude Canada Ltd.
September 27, 2010
On June 25, 2010, Justice K.E. Tjosvold of the Provincial Court of Alberta released his much anticipated decision in R. v. Syncrude Canada Ltd. While environmental groups are claiming that this decision sends a strong message to operators in Alberta's controversial oil sands, the main thrust of the decision focuses on the elements of a successful (or in this case an unsuccessful) due diligence defence.
Lessons from Magna
September 16, 2010
Some say the $863 million offered in exchange for Frank Stronach's
multiple-voting shares was "outrageous." That, however, is a matter
best left to shareholders. Published in the September 2010 issue of
Lexpert magazine as part of Barry Reiter's regular column.
Directors' Liability, Taxes, and the Chancellor's Foot
September 2010
The Tax Court of Canada and the Federal Court of Appeal have predominantly held that the standard of care required of directors to meet the due diligence defence test in s. 227.1(3) of the Canadian Income Tax Act is subjective. Not only is the basis for these decisions questionable, but the resulting inconsistencies and uncertainties depart from a coherent system of rational law. Published in the September 2010 issue of Canadian Lawyer as part of Bryan Haynes' regular column.
Chronic Health Care Spending Disease: A Macro Diagnosis and Prognosis
September 08, 2010
Good treatment of any disease begins with a comprehensive accurate diagnosis of the underlying problem. Physicians know that symptoms can be misleading and that a prescription to relieve the symptoms without a full understanding of their underlying cause may result in a treatment that exacerbates rather than cures the disease.
Rahn Concepts in Saudi Arabia
September 01, 2010
A commentary on the current draft of the proposed mortgage laws of the Kingdom of Saudi Arabia. Published in Euromoney and written jointly with Dr Michael McMillen.
Advancing Access to Justice Through Cy Pres Distributions
August 06, 2010
Access to justice is the principal objective of Ontario's Class Proceedings Act. It is a goal that can and should be advanced by class action settlements that provide cy près distributions to legal aid organizations. Derived from the Norman French phrase cy près comme possible, the "as near as possible" doctrine first arose in the context of charitable trusts.
R v. Kapp and an Analysis of Recent Section Jurisprudence
August 06, 2010
After much debate about the dignity test for equality based on four contextual factors in Law v. Canada, the Supreme Court of Canada revised its test again in R. v. Kapp. The Kapp test gave independent effect to section 15(2) in affirmative action matters, but incorporated some of the elements of the Law analysis into this new one.
Not Just Another Foreign-Policy Review
August 03, 2010
In recent months, Canada has been standing taller on the
international stage. Taller than before, and taller than a number
of countries whose profile has been shrinking due to their economic
profligacy. Published in the Comment section of the
Globe and Mail.
No Claim Means No Claim!
August 02, 2010
It is a fundamental principle of contract law, one which public policy favours and subject only to certain well-established and narrowly defined exceptions, that parties are free to determine for themselves the terms of contracts voluntarily entered into. Regrettably, the Supreme Court of Canada recently departed from this principle in Tercon Contractors Ltd. v. British Columbia (Transportation and Highways), thereby injecting uncertainty into the enforceability of contractual arrangements. Published in the August 2010 issue of Canadian Lawyer as part of Bryan Haynes' regular column.
Bennett Jones