Blogs

  • No Second Chance: Default Judgment Stands Against Infringers without a Reasonable Explanation for their Delay
    August 18, 2017

    Some defendants have the mistaken belief that court deadlines are inherently flexible, and that even a default judgment can be set aside with a simple “mea culpa”. Not so. Without a reasonable explanation—and proof supporting that explanation—failure to defend spells liability. The case of Benchmuel v. Gags N Giggles is a reminder of the permanent consequences of ignoring court deadlines and not retaining counsel at the outset.

  • OSFI Suspends Compliance Expectations Against Use Of "Bank Words" by Credit Unions, and Solicits Consultation
    August 14, 2017

    Provincially-regulated credit unions that use “bank words” to describe products or services (such as “online banking”) will be relieved to hear that the Office of the Superintendent of Financial Institutions (OSFI) has “suspended” the compliance expectations set out in the OSFI directive that we reported on in July. That directive set out OSFI’s interpretation of the Bank Act’s prohibition in section 983 against the use of bank words by non-banks, and required that non-banks, such as provincially regulated credit unions and fintech companies, cease using bank words to describe their business on websites or other electronic media by December 31, 2017, on print materials by June 30, 2018, and on physical signs by June 30, 2019.
  • AT&T's GO PHONE Trademark Registration Saved by Roaming Services Offered in Canada
    August 11, 2017

    A recent decision involving an AT&T trademark demonstrates how the global reach of technology businesses can sometimes result in a blurring of markets and make documentation of trademark use in Canada difficult to retrieve and segregate. To protect your key brands in Canada, it is therefore important to audit and maintain documents showing trademark use in Canada. If a trademark is properly used, its registration can be kept alive forever. But a trademark can be cancelled for non-use in a proceeding typically initiated by a competitor interested in a similar brand. The only way for a trademark to survive these proceedings is to have and to show sufficient evidence of past use in association with all registered goods and services. The AT&T decision is a good reminder of this critical point.
  • Growing Concerns with Proposed Amendments Affecting Private Businesses and their Shareholders
    August 10, 2017

    On July 18, 2017, Minister of Finance Bill Morneau announced sweeping changes to the way private businesses and their shareholders are taxed. The Government's proposals encompass three broad areas: (1) income sprinkling (i.e., using a private corporation to spread income among family members to create a tax savings); 2) earning passive investment income in a private corporation; and (3) converting a corporation's regular income into capital gains. The announcement was accompanied by draft legislation, explanatory notes, and a consultation paper. The proposals are subject to public input and comment for a 75-day period, ending October 2, 2017.

    Since the proposals were released, the tax community has raised several concerns with respect to the impact on Canadian business owners. Rather than provide an extensive review of the technical aspects of the proposals, this Post summarizes some of major concerns raised thus far.

  • Certification an Even Lower Bar Against Lawyers
    August 08, 2017

    The decision of the Ontario Court of Appeal in Hodge v Neinstein, released on June 15, 2017, was surprising with respect to its treatment of the balance between common and individual issues in a class proceeding. It is hard to know how significant the decision will prove to be, as the outcome was likely influenced by the subject matter at issue.

  • The Best Defence Is a Good Offence: How to Get Rid of Threatening Trademark Registrations
    August 04, 2017

    In Ontario cottage country, locals have been confronted with the registration of the trademark HALIBURTON, the name of the county in which they operate. The registration may threaten uses made by other businesses in the area. What can be done in a situation like this?

  • The Kawartha Lakes Saga Continues: Oil Spills and the Dangers of DIY
    August 03, 2017

    Gendron v Thompson Fuels et al provides a cautionary tale for homeowners hoping to "handle things on [their] own". In this case, the plaintiff-homeowner attempted to clean up a domestic fuel oil spill with Tupperware containers, and was found contributorily negligent in the process.
  • Lobbying in British Columbia—Change is Coming
    August 02, 2017

    With the New Democratic Party (NDP) forming British Columbia's next government, lobbying regulation in British Columbia is about to change. The 2017 Confidence and Supply Agreement between the B.C. Green Party Caucus and the B.C. NDP Caucus, which gave the NDP the votes to form government, refers to lobbying reform as a core policy initiative.
  • Court of Appeal Upholds Limit On "Pay First, Dispute Later" Principle
    July 28, 2017

    In a recent decision in Talisman Energy Inc v Questerre Energy Corporation, the Alberta Court of Appeal upheld the decision of the Court of Queen's Bench, to place limits on the "pay now, dispute later" structure, common in agreements governed by the Canadian Association of Petroleum Landmen operating procedure.
  • Going to California—Google Asks U.S. Court to Declare Supreme Court of Canada's Global Injunction Unenforceable
    July 28, 2017

    The Supreme Court of Canada recently confirmed the availability of a novel form of worldwide injunction whereby Google, a non-party to the litigation, was required to block worldwide access to websites operated by a defendant. The decision is welcomed by rights-holders in Canada as it provides an effective enforcement tool against infringing activities over the borderless Internet. This week, Google filed a claim in California requesting a declaration that the Canadian order is unenforceable, effectively appealing an order of Canada’s highest court.
  • SEC Warns Initial Coin Offerings and Token Sales May be Subject to U.S. Federal Securities Law
    July 28, 2017

    Companies considering an Initial Coin Offering, Token Offering or other blockchain-enabled means of capital raising should pay attention to recent guidance issued by the United States Securities and Exchange Commission (SEC).

  • How to Avoid the Sharks of Financial Fraud
    July 27, 2017

    Twenty-three-time Olympic gold medalist Michael Phelps just raced a great white shark to celebrate Shark Week 2017. He lost. And he didn't race against a live shark, but a computer-generated image of one. Phelps swam alone off the waters of South Africa. Many who tuned in to watch the race felt cheated. Phelps defended the format. The great white had no comment.

  • Self-Incrimination and Settlement Agreements
    July 27, 2017

    Misconduct in the securities industry can give rise to both criminal and regulatory liability. One problem that arises from this overlap is the potential for state-compelled self-incrimination. In the criminal context, an accused person is not a compellable witness. In the securities context, the situation is the opposite. An investigated person can be compelled to give incriminating evidence against themselves. Such testimony is generally protected from use in any subsequent criminal proceedings by the operation the Canadian Charter of Rights and Freedoms.
  • The National Energy Board's Role in Crown Consultation
    July 27, 2017

    On July 26, 2017, the Supreme Court released two seminal decisions that clarify the role of administrative tribunals, such as the National Energy Board, in fulfilling the Crown’s duty to consult with Indigenous groups. These cases reconcile overlapping aspects of administrative, aboriginal and constitutional law that intersect and often collide in regulatory hearings on natural resource projects.  
  • Cybersecurity: Spear Phishing Covered Under Insurance Policy Where Code Manipulated
    July 25, 2017

    Increasingly, insureds faced with cyber fraud losses are going to the courts to interpret their policies.  In The Brick Warehouse LP v. Chubb Insurance Company of Canada, 2017 ABQB 413, and in Taylor & Lieberman v. Federal Insurance Company, 2017 WL 929211 (March 9, 2017, 9th Cir.), fraudulent emails, as part of a social engineering attack, were sent to company employees who acted on them transferring money from the insured's account. In both cases courts held that coverage under the Fund Transfer Fraud policy was denied as the victim knew or consented to the instructions given to its bank rather than by way of third-party instructions impersonating the insured which would have been covered by the policy.
  • Healthcare Data: Are You Required to Report a Ransomware Attack?
    July 25, 2017

    If you are a healthcare data custodian that is subject to a ransomware attack, you may be required to report the incident to regulators and to those individuals whose information was subject to the attack.
  • Saskatchewan Court of Appeal Clarifies Priority Rules for Builders' Liens Arising in Connection with the Recovery of Minerals
    July 25, 2017

    The Saskatchewan Court of Appeal recently released a landmark decision National Bank of Canada v KNC Holdings Ltd, 2017 SKCA 57 (National Bank) which will significantly affect the priority ranking of certain Saskatchewan builders' lien claims in insolvency proceedings. In a unanimous decision, the Court overruled a long line of authorities which had held that builders' liens arising in connection with the recovery of minerals could defeat prior-registered security interests. The Court held that the order of priority for all types of builders' liens must be determined solely on the order of registration.

  • Issues to "Bee" Determined: Federal Court Dismisses Preliminary Motions
    July 24, 2017

    Whether or not the decisions by the Pest Management Regulatory Agency (PMRA) to successively register neonicotinoid products on a conditional basis constitute a "continuous course of conduct", and whether or not the PMRA offers adequate alternative remedies to the judicial review applications, are two debatable issues for the application judge to decide.
  • Proposed Amendments to Ontario's Construction Lien Act
    July 24, 2017

    On May 31, 2017, Bill 142—An Act to amend the Construction Lien Act—was carried through a first reading by the Ontario Legislative Assembly. If passed, the proposed amendments to the Construction Lien Act would modernize the now-dated legislation to better reflect the contemporary realities of the complex construction sector in Ontario. Bill 142 will proceed to a second reading and committee review in September 2017, when the legislature resumes.

  • Anonymous Poster of Defamation Unmasked
    July 21, 2017

    Anonymity on the Internet has encouraged some to feel they live in a culture that feels no responsibility for what might be posted and where there may be no consequences for what one posts. That is, however, not the case as seen in Carleton Condominium Corporation No. 282 v. Yahoo! Inc., 2017 ONSC 4385, Madam Justice Robin Ryan Bell applied well settled law to require the intermediary, Yahoo!, to reveal the identity of the poster of allegedly defamatory posts.
  • Cybersecurity: When Social Engineering Fraud is Not Covered Under Your Insurance Policy
    July 21, 2017

    We live in an age of escalating cybersecurity threats. Many intrusion threats are social engineering attacks, which seek to gain entry to an organization's computer systems via its personnel and not a hack to the computer systems. While not technical in nature these attacks can effect substantial harm on an organization and need to be taken as seriously as the technical attacks.
  • Pharma and Biologics Disputes in Canada—Big Changes for Big and Small Molecule Litigation
    July 20, 2017

    The patent litigation that propels generic and biosimilar products to market will soon change dramatically. July 15, 2017, marked the release of long-awaited proposed amendments to the Patented Medicines (Notice of Compliance) Regulations, which govern patent infringement and invalidity disputes involving patented medicines between “first” and “second” persons (i.e., brand v. generic and biologic v. biosimilar). The resolution of these disputes determines the timing of market approval of generic and biosimilar products. The proposed regulations are subject to a brief public consultation period until the end of July. The amendments could affect new cases starting as early as September 21, 2017, when the Comprehensive Economic Trade Agreement (CETA) that inspired the changes will likely take effect.

  • Government of Ontario Proposes Amendments to Payday Loans Act
    July 19, 2017

    Providers of payday loans in Ontario, take notice—the Government of Ontario is seeking input on the implementation of new regulations intended to strengthen consumer protection which will have wide-ranging impacts on the regulation of the day-to-day operations of payday lenders.

  • Internal Investigations and Privilege: The Alberta Court of Appeal Weighs In
    July 19, 2017

    The documents and records of an internal investigation into a workplace accident may be privileged notwithstanding a statutory obligation to carry out an investigation and prepare a report, the Alberta Court of Appeal recently confirmed in Alberta v Suncor Energy Inc, 2017 ABCA 221 [Suncor]. However, extending privilege to such records requires a document-by-document examination of the purpose for creating each.
  • New General Data Protection Regulations in European Union Has Cybersecurity Consequences
    July 19, 2017

    The European Union’s General Data Protection Regulation (GDPR) will come into force on May 25, 2018. This new regulation replaces the current data protection law (Directive 95/46/EC) substantially and will bring important changes to the nature of data protection and privacy as a whole in the region, intending to create a further modernized and harmonized data protection strategy. 

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