Canadian Securities Administrators Provide Guidance on the Review of Material Conflict of Interest Transactions
August 18, 2017
Transactions between related parties may create material conflicts of interest between an issuer and its directors, officers and related parties. In particular, material conflicts of interest may arise in the context of insider bids, issuer bids, business combinations and related party transactions. Multilateral Instrument 61-101 Protection of Minority Security Holders in Special Transactions (MI 61-101) was adopted in Alberta, Manitoba and New Brunswick on July 31, 2017, and prescribes procedural safeguards intended to mitigate the risks to minority security holders in material conflict of interest transactions. MI 61-101 has been in effect in Ontario and Québec since February 1, 2008, when it superseded Rule 61-501 in Ontario and Regulation Q-27 in Quebec.
Now You See It, Now You Don''t: SCC Upholds Worldwide Injunction That Alters Google Search Results
July 12, 2017
The Supreme Court of Canada has upheld a novel injunction order against Google, requiring it to remove certain websites from worldwide search results. For litigants in Canadian courts, Google v. Equustek enlarges both the available pre-trial remedies, and the choice of who may be sued, to protect intellectual property rights—and perhaps other interests as well.
Bennett Jones Spring 2017 Economic Outlook
June 01, 2017
This Spring 2017 Outlook has three sections. In Section I we review the broad cyclical, structural and policy factors that are expected to shape growth to the end of the decade, particularly in the advanced economies, and present our base outlook with a focus, as usual, on the United States and Canada. In Section II we review the issues surrounding trade policy developments in the United States and elsewhere and the implications for Canadian governments and businesses. Finally, in Section III we examine the risks to the economic outlook posed by other uncertain developments and outline the related possible impact on Canadian monetary, fiscal and structural policies.
New Federal Methane Reduction Regulations for the Upstream Oil and Gas Sector
May 31, 2017
The Government of Canada has released its proposal for the first federal regulations on greenhouse gas emissions applicable specifically to the upstream oil and gas sector, titled Regulations Respecting Reduction in the Release of Methane and Certain Volatile Organic Compounds (Upstream Oil and Gas Sector).
New Federal Volatile Organic Compounds Reduction Regulations for the Petroleum Sector
May 31, 2017
The government of Canada has released its proposal for the first federal regulations on volatile organic compound (VOC) emissions applicable specifically to the petroleum sector, titled Regulations to Reduce the Release of Volatile Organic Compounds (Petroleum Sector).
Technical Paper on the Federal Carbon Price Backstop Released for Comments
May 31, 2017
The government of Canada recently released a technical discussion paper seeking to inform Canadians about a proposed federal carbon pricing backstop and to obtain feedback on its design.
Proposed Oil Tanker Moratorium Act—Defining Canada's Pacific Gateway
May 23, 2017
On 12 May 2017, the Government of Canada introduced Bill C-48, the proposed Oil Tanker Moratorium Act, in Parliament. This initiative follows up on the launch of the national Oceans Protection Plan in November 2016, and fulfils the Prime Minister’s commitment to formalize a crude oil tanker moratorium on British Columbia’s north coast. The broader plan aims to "improve marine safety and responsible shipping; protect Canada’s marine environment; and create new partnerships with Indigenous and coastal communities".
Equity Kickers and the Criminal Rate of Interest
May 08, 2017
Entering into a loan transaction that also has an equity component, such as the issuance of shares or warrants, has previously given rise to some concern that the loan could ultimately run afoul of the 60 percent criminal rate of interest. While this has widely been thought to be contrary to the intended purpose of the criminal interest provision (preventing loan-sharking), there has still been a risk that equity could be captured and valued as interest due to the broad definition and judicial interpretation of "interest" in that provision. However, that risk has been diminished by a decision of the Ontario Superior Court that was recently upheld by the Ontario Court of Appeal.
Court of Appeal Permits Union Certification Application in Face of Insolvency Stay of Proceedings
May 03, 2017
The Ontario Court of Appeal recently released a decision allowing a certification application by a union to proceed in the face of a receivership of the employer. The decision garnered a strong dissent from Justice Lauwers, suggesting that the decision of the majority would “effect a sea change in insolvency law.”
Due Diligence Defence Deemed Available for Issuance of Securities in Breach of Securities Laws
April 20, 2017
The B.C. Securities Commission's (the Commission) decision in Re SunCentro (2017 BCSECCOM 58) provides rare guidance on the availability of a due diligence defence to parties that have illegally distributed securities. The Commission held that a due diligence defence was available to an issuer and certain of its directors, officers and promoters for the improper use of the "Family, Friends and Business Associates" prospectus exemption.
Highly Confidential Data—A Cybersecurity Risk for Cannabis Related Businesses
April 12, 2017
Cybersecurity is a significant business risk for any organization that collects personal data. The greater the amount of personal data collected by an organization, the greater the risk that it will be targeted by cybercriminals. It is now widely accepted that it is not a matter of if there will be an attack but rather when an attack will occur. Cyberattacks are occurring more frequently, and loss or exposure of sensitive information is on the rise. Licensed producers of cannabis and other cannabis related businesses (collectively, CRBs) face increased risks associated with data breaches given the highly confidential nature and large volume of data collected from their customers.
2017 Federal Budget: Update for Employers
April 06, 2017
On March 22, the 2017 federal budget, Building a Strong Middle Class Through Innovation, was released. Among its myriad proposals, several anticipated changes related to families and leaves will affect employers, including amendments to the Employment Insurance Act and the Canada Labour Code. While the changes to the Canada Labour Code will be limited to federally regulated employers, all employers may be affected by changes to the Employment Insurance Act.
Budget 2017: Changes to Canadian Exploration Expense and Flow-Through Shares
March 24, 2017
Canadian exploration expenses (CEE) are certain types of expenses incurred by oil and gas, mining and renewable energy corporations. CEE is 100 percent deductible in the year the expense are incurred. Certain types of CEE also qualify for renunciation to investors under the flow-through share rules contained in the Act. With the exception of expenses related to the acquisition of Canadian resource property (which generally would be Canadian oil and gas property expense), most other oil and gas related expenses (other than tangible costs) qualify as Canadian development expenses (CDE). CDE is deductible at 30 percent on a declining balance basis. CDE can also be renounced under the flow-through share rules, but because of the reduced rate of deduction, is significantly less desirable for investors.
Federal Court Cracks Down on Intentional Infringement with $1 Million Punitive Damages Awards
March 08, 2017
It's been a costly week for intentional infringers of intellectual property (IP) rights. In two separate decisions, the Federal Court of Canada has awarded $1 million in punitive damages. These are among the highest punitive damages awards ever made in Canadian IP cases, and send a signal to both counterfeiters and sophisticated businesses that deliberate infringement can have significant monetary consequences.
When Can Judicial Review of a Tribunal's Decision Include a Tribunal's Other Decisions?
February 28, 2017
When can a court review a tribunal's decisions, other than the decision under review, in determining whether the decision should be subject to a remedy on judicial review? This question arises from the recent Supreme Court of Canada decision on the standard of review of a tribunal's decision.
Cybersecurity: 2017 Report & 2016 Reflections
In 2016, cybersecurity continued to grow as a primary business risk for companies worldwide. Data breaches continued to escalate both in number and magnitude and the landscape of legal and regulatory liability evolved and expanded. In this report, the Bennett Jones Cybersecurity team analyses the key events in 2016 with a view to those issues that should be front and centre for companies and their directors in 2017.
New Coordinated Rules Relating to the Clearing of Over-the-Counter Derivatives in Canada
January 23, 2017
On January 19, 2017, the securities regulators in each of the provinces and territories of Canada published a notice that they have finalized two new derivatives rules as part of their ongoing G20 commitment to regulate over-the-counter derivatives in Canada.
Change in Shareholder Approval Requirements for Certain TSX-V-Listed Issuers Undertaking a Change of Business or Reverse Takeover
January 13, 2017
On December 15, 2016, the TSX Venture Exchange (TSX-V) published amendments to Policy 5.2 – Changes of Business and Reverse Takeovers of the TSX Venture Exchange Corporate Finance Manual (Policy 5.2). The amendments to Policy 5.2 include, among other things, specific guidance on where the TSX-V may waive the requirement for shareholder approval of a change of business (COB) or reverse takeover (RTO).
Cybersecurity: United States Federal Trade Commission Strikes Again; Foreshadowing of things to come in Canada?
December 20, 2016
A review of the FTC's increasing exercise of authority in the cybersecurity domain and a consideration of what this foreshadows for possible exercise of authority by the Competition Bureau in Canada.
What a Donald Trump Presidency Means for Western Canada
December 15, 2016
It was our pleasure to host the Post U.S. Election event on December 1, featuring John Baird and Allan Gotlieb, on what a Donald Trump presidency means for Western Canada.
Federal Government Announces Pan-Canadian Framework on Clean Growth and Climate Change
December 13, 2016
The federal government, along with most of the premiers, signed a new pan-Canadian framework (the "Federal GHG Framework") on Friday, December 9, 2016. The Federal GHG Framework is intended to address climate change on a national platform. The federal government's approach to meeting its 2030 target of a 30-percent reduction in greenhouse gas ("GHG") emissions below 2005 levels is to ensure the provinces and territories have sufficient flexibility to design their own programs while being supported federally through infrastructure spending, clean technology investments and targeted GHG reduction opportunities.
Marquee Energy Appeal Reaffirms Plans of Arrangement Law in Canada
December 08, 2016
In a decision released on November 15, 2016, the Alberta Court of Appeal allowed the appeal of Marquee Energy Ltd. (Marquee) from a prior decision of the Court of Queen's Bench of Alberta which had required, as a condition to any final approval of a plan of arrangement involving Marquee, Alberta Oilsands Inc. (AOS) and the shareholders of Marquee, that Marquee's plan of arrangement provide for a vote of the shareholders of AOS. Notably, in the context of the proposed transaction, the shares of AOS were not being arranged and therefore the decision of the lower Court represented a marked departure from prior jurisprudence pertaining to plans of arrangement in Canada.
Bennett Jones Fall 2016 Economic Outlook
November 29, 2016
This Fall Outlook has four sections. The first section describes the main aspects of the "new normal" of low growth that has prevailed for advanced economies in the last six years of economic recovery. The second section discusses key factors that have shaped the economic performance of advanced economies and are likely to condition growth in aggregate demand and potential output over the next several years. With this analysis in background, the third section briefly explains our short term outlook for the global economy and Canada to 2018, showing that for the advanced economy it remains well on the low-growth path of the "new normal". Finally, a fourth section draws implications of the "new normal" for the conduct of economic policies in advanced economies and the strategy businesses should follow.
2017 ISS and Glass Lewis Updates to Canadian Proxy Voting Guidelines
November 24, 2016
Institutional Shareholder Services (ISS) and Glass, Lewis & Co (Glass Lewis) have both released their updates to their respective Canadian proxy voting guidelines for the upcoming 2017 proxy season. The ISS updates apply to shareholder meetings of publicly traded Canadian companies occurring on or after February 1, 2017, while Glass Lewis updates apply to meetings that are held in 2017.
What a Donald Trump Presidency Means for Canada
November 14, 2016
On November 8, 2016 Donald Trump was elected to be the 45th President of the United States of America. Sander Grieve, head of Bennett Jones’ Mining Practice, sat down with members of our Government Affairs & Public Policy team and asked them where they see challenges and opportunities for Canada based on their decades of experience in business and political relations with the United States.