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Articles
A Toast to Champagne!
May 2010
With far too few exceptions, closings have regrettably become boring, routine, uneventful, colourless, anti-climactic, and mere perfunctory gatherings. Most lamentable of all is that closings have become dry. Strangers convene at a pre-arranged time, robotically sign various documents, drink apple juice, exchange superficial social niceties, impatiently shake hands, and anxiously part ways. Where did the days when closings meant more than an agreed drop-off and pickup point disappear to? Published in the May 2010 issue of Canadian Lawyer as part of Bryan Haynes' regular column.
Case Comment: Cassiar Watch v. Canada (Minister of Fisheries and Oceans)
May 03, 2010
In Cassiar Watch v. Canada (Minister of Fisheries and Oceans), the federal government's practice of issuing letters of advice (LOAs) was challenged by a non-profit society called Cassiar Watch. Cassiar Watch sought judicial review of an LOA issued to Shell Canada Energy by the Department of Fisheries and Oceans in 2007. Justice Campbell of the Federal Court Trial Division dismissed the application on the basis that the LOA was a non-binding opinion having no legal effect.
Freedom of Contract Revisited
May 01, 2010
A pithy review of several recent appellate decisions reflecting the
balancing of societal interests, and the judicial exploration for
fairness and the true intention of the parties, in the face of
apparently plain contractual language. Originally presented at the
2010 Legal Education Society of Alberta 43rd Annual Refresher
Course (Business Law).
Auditing the Audit Requirement
April 2010
Most jurisdictions in Canada require the unanimous consent of all shareholders, including non-voting shareholders, in order for a non-distributing corporation to dispense with an audit. The requirement is absolute and mandatory — there are no other exemptions or qualifications. The public policy rationale behind the rule is laudable; however,the implementation in practice can be austere. It is time to revisit the universal audit requirement as it applies to non-distributing corporations. Published in the April 2010 edition (No. 188) of Corporate Brief, published by CCH Canadian Limited.
Governance After the IPO: Part II
April 14, 2010
The board has its own business to run, a business that is distinct
from management's operational role. At a high level, the
board's business is the oversight of the company itself and
the supervision of management. Published in the April 2010 issue of
Lexpert magazine as part of Barry Reiter's regular
column.
Revisiting Family Status in Employment
April 14, 2010
Ranjan Agarwal and Amanda McLachlan look at a development in the threshold for determining whether an employer must accommodate the needs of families in the employment context. "Revisiting 'Family Status' in Employment" (2009) Charter and Human Rights Litigation 16:3 at 1314.
Taking Care of Business: The Case for Commercial Courts
April 2010
Commercial courts have been established in various business centres around the world and are common in developed countries. Factors leading to their establishment in other jurisdictions are very much present in Canada, namely, a judiciary lacking expertise in commercial matters, overwhelmed dockets, and complex commercial disputes requiring expeditious resolution. The results are overwhelmingly positive. Published in the April 2010 issue of Canadian Lawyer as part of Bryan Haynes' regular column.
The Piggy Bank Index: Matching Canadians' Saving Rates to Their Retirement Dreams
March 18, 2010
As Canada's baby boom generation approaches retirement age, public concern about the adequacy of retirement income is mounting. The sharp fall in stock markets and interest rates in 2008/09, coupled with the bankruptcy of a few major employers, has heightened Canadians' anxiety over the adequacy and certainty of their expected retirement incomes, from employer pensions, Registered Retirement Savings Plans (RRSPs) and other private savings.
Case Comment: Kawartha Lakes v. Ontario (Ministry of the Environment)
March 15, 2010
The November 2009 decision by the Environmental Review Tribunal in
Kawartha Lakes v. Ontario (Ministry of the Environment)
has been touted as the death of the fairness principle. However, a
careful review of the decision suggests that such a claim may be
overstated. Published in the
March 2010 (Vol. 19, No. 3) edition of Environews, the
newsletter of the Environmental Law Section of the Ontario Bar
Association.
Facing a Canadian Audit, Eh?
March 14, 2010
Prepared for the annual ICPA Conference (March 14-18, 2010), Darrel
Pearson's presentation, "Facing a Canadian Audit, Eh?," highlights
the Canadian audit process.
Auditing the Audit Requirement - March 2010
March 2010
Most jurisdictions in Canada require the unanimous consent of all shareholders, including nonvoting shareholders, in order for a nondistributing corporation to dispense with an audit. The requirement is absolute and mandatory — there are no other exemptions or qualifications. The public policy rationale behind the rule is laudable; however, the implementation in practice can be austere. It is time to revisit the universal audit requirement as it applies to nondistributing corporations. Published in the March 2010 issue of Canadian Lawyer as part of Bryan Haynes' regular column.
Canadian Fiscal and Economic Policies: Where to from Here?
March 04, 2010
This paper explores what might be the evolution of Canadian
economic policies over this new decade with a particular emphasis
on budgetary policies of the federal and Ontario governments.
Presented at Queen's University for the Inaugural Matthews Lecture
on March 4, 2010 (revised version March 30, 2010).
Governance After the IPO: Part I
March 04, 2010
Introducing governance at a newly public company is a complicated
undertaking. One false move and board members can find themselves
at odds with stakeholders. Published in the March 2010 issue of
Lexpert magazine as part of Barry Reiter's regular
column.
Norwich Order Provides Tool to Combat Online Fraud
March 2010
A Norwich order is a civil court order that compels evidentiary discovery from third parties who may be innocent but who have valuable information that will allow the party seeking the order to ascertain who the party ought to be suing, why that party is suing them, or as a way to trace funds. Published in Carswell's Legal Alert, Volume 28, Number 12.
Canada-US Relations: What Next?
February 16, 2010
In a presentation to the Queen's Public Executive Program, Michael Kergin discusses Canada-US relations.
Federal Auditor General's Report on Canada
February 15, 2010
The Auditor General's Fall 2009 Report, released November 3, 2009, included at Chapter 4 a detailed review of the operations of Canada Health Infoway. The report notes that Infoway is tasked to deploy $1.6 billion of federal funding to encourage and enhance the prospects of a modernization of health records in Canada by the development and adoption of large-scale electronic health record systems in the various provincial and territorial jurisdictions of Canada.
Legal update - Health Information Protection in Canada
February 15, 2010
Duncan Card and Michael Whitt highlights a few recent legal developments in the regulation of patient records privacy and protection in Canada which impact or focus on the health informatics field. Published in the First Quarter February 2010 (Vol. 24 No.1) edition of Healthcare Information Management & Communications Canada, the official journal of COACH, Canada's Health Informatics Association.
What Makes a Director Independent?
February 15, 2010
Regulators and shareholder advocates want boards of directors to be
"independent" from management. But the term carries many differing
definitions. Published in the February 2010 issue of
Lexpert magazine as part of Barry Reiter's regular
column.
Do Good Fences Make Good Neighbours
February 10, 2010
In a speech delivered to Michigan State University in East Lansing, MI, USA, Michael Kergin discusses how the United States and Canada might become better neighbours by more effectively managing the countries' common border.
The Alberta Anomaly
February 2010
It is a commonly held perception that Alberta is a business-friendly province. With little red tape, skinny regulations, modest taxes, a sizable pool of entrepreneurs, a can-do attitude, near absent unionization, political invariability, abundant resources, solid infrastructure, a reasonable cost of living, great skiing, private liquor stores, and a young, well educated workforce, it is difficult to argue against this perception. Published in the February 2010 issue of Canadian Lawyer as part of Bryan Haynes' regular column.
Ponzi Schemes (and Other Really Bad Investments) - and What to Do About Them
January 29, 2010
An entertaining and informative history of Ponzi schemes and of extraordinary relief available to victims. Originally presented at the 2010 Legal Education Society of Alberta/Canadian Bar Association Alberta Law Conference.
Best Practices for Internal Auditors Investigating Fraud
January 22, 2010
Canada is one of the top jurisdictions for instances of reported corporate fraud in the world. The two most common types of economic crimes in the last year were asset misappropriation and accounting fraud (such as accounting manipulations). It is expected that there will be intense scrutiny of internal auditors, management, audit committees and directors by investors, regulators and law enforcement to see how they confront and minimize fraud risk and loss. Published in the January/February 2010 issue of Audit Challenge, the electronic newsletter for the Institute of Internal Auditors, Toronto Chapter.
Bennett Jones