• Public Works and Government Services Canada Integrity Clauses
    January 06, 2014
    This information circular provides an overview of the integrity provisions recently implemented by Public Works and Government Services Canada (“Public Works”), as they apply to real estate transactions across Canada (“Integrity Provisions”). The information circular is divided into the following three sections:Part I: Integrity Provisions - Overview; Part II: Compliance with Integrity Provisions; andPart III: Liability for Non-Compliance.
  • Settlement Privilege, Limitation Periods and the Meaning of Without Prejudice
    December 12, 2013
    In Bellatrix Exploration Ltd. v Penn West Petroleum Ltd., 2013 ABCA 10, the Alberta Court of Appeal explains the key principles of settlement privilege and confirms the important protection this provides. The Court addresses significant issues including the scope of the protection, whether putting the "without prejudice" label on correspondence will on its own turn a document into a privileged one, and if there is any exception to settlement privilege in order to respond to a limitation period defence.
  • Regulatory Proceedings and Class Actions: The Supreme Court of Canada Speaks on Preferable Procedure
    December 12, 2013
    On December 12, 2013, the Supreme Court of Canada (SCC) released its fourth major class action decision in two months: AIC Limited et al v Dennis Fischer et al (Fischer). This case concerns whether a class action is the preferable procedure for resolving claims where regulatory proceedings relating to the same conduct have already resulted in a substantial monetary settlement. The SCC held that a class action is the preferable procedure where a comparative analysis indicates that class proceedings can address procedural or substantive access to justice concerns and that these concerns remain even after considering alternative avenues of redress.
  • Securities Regulation: The Supreme Court of Canada Speaks Again
    December 09, 2013
    The Supreme Court of Canada recently issued its decision in McLean v British Columbia (Securities Commission). The case is the first by the Court to address inter-provincial cooperation in relation to securities regulation since its 2011 decision in the Securities Reference. It is also the first to be rendered by the Court since the announcement in September 2013 by the finance ministers of Canada, Ontario and British Columbia to create a new national cooperative securities regulator.
  • Proposed Prospectus Exemption for Distributions to Existing Security Holders of TSXV Issuers
    November 26, 2013
    On November 21, 2013, Canadian securities regulators in all jurisdictions but Ontario and Newfoundland and Labrador published for comment a proposed prospectus exemption for issuers listed on the TSX Venture Exchange (TSXV issuers) that would, subject to certain conditions, allow them to obtain additional financing by distributing securities to their existing security holders.
  • Bennett Jones Fall 2013 Economic Outlook
    November 04, 2013
    This Economic Outlook has three sections. The first covers recent dynamics and short-term outlook for the world economy. The second presents a discussion of the context and conduct of US monetary policy in recent years and in the short term. The final section reviews recent international trade statistics and trade negotiations.
  • Finally, Membership Will Have its Privileges: Canadian Investors Abroad to Benefit as Canada Joins ICSID
    November 01, 2013
    Canada has announced, on November 1, 2013, that it has ratified the ICSID Convention and will at long last become a member of the principal international rule-making and administrative body for disputes between investors and their host states. This is welcome news for Canadian companies and individuals concerned about the protection of their investments abroad.
  • Canada's Supreme Court Opens the Door to Indirect Purchaser Class Actions
    October 31, 2013
    On October 31, 2013, the Supreme Court of Canada released three decisions which many commentators had predicted would be the most critical antitrust class action decisions in recent memory. The Supreme Court did not disappoint. In summary, the decisions permit indirect purchasers to claim for antitrust damage. But the Court held that indirect purchasers must be able to "self-identify" as members of the proposed class. If they cannot, because for example, none know whether they in fact purchased products containing the allegedly overpriced component, then the court cannot certify the indirect purchaser class.
  • Share Purchase Transactions, Solicitor-Client Privilege and Multiple Representations: A Cautionary Tale for Corporate Counsel
    October 31, 2013
    An interesting set of questions arises from share purchase transactions regarding the existence of, and parties to, the solicitor-client privilege over the correspondence between the parent, subsidiary and corporate counsel. Solicitor-client communications arise when the parent and corporate counsel obtain information from the target in the context of making the necessary disclosures and representations in the transaction to the purchaser.
  • ISS Announces Key 2014 Draft Policy Updates
    October 31, 2013
    On October 21, 2013, Institutional Shareholder Services (ISS), an influential proxy advisory firm, released three proposed updates to its Canadian proxy voting guidelines. The proposed updates relate to director overboarding, pay for performance quantitative screen and problematic audit-related issues. ISS is seeking feedback from market participants to finalize these updated guidelines, which will be published in November 2013 and will apply to shareholder meetings of publicly traded Canadian companies occurring on or after February 1, 2014.
  • Canada-EU Trade Agreement: Breaking the Log-Jam
    October 18, 2013
    Canadian Prime Minister Stephen Harper and European Commission President José Manuel Barroso today announced a breakthrough in the long-running negotiations to conclude a Comprehensive Economic and Trade Agreement (CETA) between Canada and the European Union. After well over four years of intense and often controversial negotiations that also engaged the 28 EU member states and Canada's provincial and territorial governments, the parties appear to have reached agreement in principle on all key areas. This is the largest, most complex and far-reaching trade agreement ever negotiated by Canada, exceeding even the NAFTA.
  • Supreme Court Affirms the Enforceability of Restrictive Covenants in Commercial Agreements
    September 26, 2013
    It is trite law that restrictive covenants (non-competition and non-solicitation clauses) are a restraint on trade and, generally, difficult to enforce in employment contracts. The employer has the onus of proving that the covenant is reasonable as between the parties in terms of its scope, geography and temporal limit and reasonable in the public interest.
  • Federal, Ontario and BC Governments Announce New Securities Regulator
    September 24, 2013
    On September 19, 2013, the finance ministers of Canada, Ontario and British Columbia announced an agreement in principle to create a new securities regulator through a "cooperative capital markets regulatory system".
  • Do You Issue Loans for Less than $5000?
    September 04, 2013
    Businesses that issue loans to customers for $5,000 or less should be aware that the Ontario Ministry of Consumer Services (MCS) is proposing an amendment to the regulations under the Payday Loans Act, 2008 which, read literally as drafted, would result in those businesses being designated payday lenders. That, in turn, carries registration requirements and imposes significant restrictions on activities that surround such loans. MCS is asking for submissions to be made on the proposed draft by September 30, 2013.
  • Ontario Court Certifies Class Action Relating to Allegedly Faulty Hip Implants
    September 04, 2013
    In a decision released on August 27, 2013, Justice Belobaba of the Ontario Superior Court of Justice certified a class action against DePuy Orthopaedics Inc. on behalf of persons who were surgically implanted with any one of two DePuy hip systems. The core allegation against the defendants is negligence in the design and manufacturing of the hip replacement systems and in the defendants' failure to warn. Justice Belobaba's decision in Crisante v DePuy Orthopaedics Inc, 2013 ONSC 5186 seems to indicate a retreat from certain recent cases which applied a more cautious approach to the certification of medical device class actions.
  • Superior Court of Justice Makes Unilateral Amendment to Plan of Distribution in Class Action Settlement
    September 04, 2013
    On August 27, 2013, Justice Perell of the Ontario Superior Court of Justice released a decision in Zaniewicz v Zungui Haixi Corporation approving a class action settlement, but which varied the proposed plan of distribution based on a class member's objections. Justice Perell had sufficient leeway to make the modifications because the settlement was not conditional upon approval of the particular plan of distribution proposed by class counsel. Furthermore, the defendants were largely indifferent to the issue as the settlement was for a fixed amount that would not revert to them in any circumstances. While these facts limit the potential significance of the decision for other types of settlements, the case is still notable because Justice Perell held that it would not be “fair and reasonable” to release the claims of some class members who had suffered damages without including those persons in the distribution of benefits.
  • Department of Finance Releases Consultation Paper on Anti-Treaty Shopping Measures
    September 03, 2013
    In the March 2013 Federal Budget, the Department of Finance indicated that it intended to initiate a consultation process on certain "treaty shopping" practices.  On August 12, 2013, the government released a consultation paper entitled Treaty Shopping - The Problem and Possible Solutions in which it invites stakeholders to comment on possible approaches to curtail treaty shopping. The government released the consultation paper amidst a broad international review of the potential abuses of tax treaties. On July 19, 2013, the Organization for Economic Cooperation and Development (CD) published its highly anticipated Action Plan on Base Erosion and Profit Shifting, which was subsequently endorsed by the G20 Finance Ministers and Central Bank Governors in Moscow on July 20, 2013.
  • Alberta's Policy on Consultation with First Nations on Land and Natural Resource Management, 2013
    September 03, 2013
    On August 16, 2013, the Government of Alberta ("Alberta") released its Policy on Consultation with First Nations on Natural Resource Management, 2013 (the "Policy"). The Policy is the product of extensive consultation with First Nations, industry, municipalities, and other stakeholders. It is intended to strengthen the First Nation consultation process for all parties involved and to ensure that Alberta effectively meets its legal duty to consult.
  • Unsolicited Expressions of Interest may be Material Information
    August 30, 2013
    The Alberta Securities Commission (ASC) has entered into a settlement agreement with Anthony Lambert, the former CEO of Daylight Energy Ltd., following allegations by the ASC that Mr. Lambert violated provisions of the Securities Act (Alberta) relating to insider trading and tipping.
  • Justice Belobaba Certifies Ontario's First “Misclassification” Overtime Class Action
    August 22, 2013
    In a decision that marks the first of its kind, on August 20, 2013, Justice Belobaba of the Ontario Superior Court of Justice certified a class action alleging that BMO Nesbitt Burns Inc. (“BMO”) failed to pay overtime to a group of 1,500 current and former Investment Advisors. The decision in Rosen v BMO Nesbitt Burns Inc. follows on the heels of a tumultuous period in which the Supreme Court of Canada denied leave to appeal certification in two “off-the-clock” overtime cases and the Superior Court of Justice, Divisional Court and the Court of Appeal of Ontario declined to certify two “misclassification” cases, including a case premised on a group of similarly situated employees in Brown v Canadian Imperial Bank of Commerce.
  • The Test for Leave under Part XXIII.1: Ambiguity Remains
    August 19, 2013
    Ontario's statutory regime for secondary market liability came into effect in 2006 as a result of amendments to the Securities Act (Ontario) (OSA), which created a statutory cause of action for deficient market disclosure. Part XXIII.1 of the OSA creates a statutory cause of action against reporting issuers, their officers and directors, and related parties for misrepresentations made in secondary market disclosures. However, before such a claim can be brought, the plaintiffs must obtain leave of the court. The statutory test for leave is that: (1) the action must be brought in good faith, and (2) the plaintiffs must have a reasonable possibility of success at trial. In essence, the legislature granted the courts a gatekeeper function to control litigation and to ensure that only claims with some merit proceed.
  • Modernizing Liability for Offshore Oil & Gas Explorations and Operations
    August 15, 2013
    This past June, the government of Canada announced plans to implement legislative changes to the four principle Acts which govern oil and gas activities in the Atlantic offshore and Arctic: the Canadian Petroleum Resources Act (CPRA), the Canada Oil and Gas Operations Act (COGOA), the Canada-Newfoundland Atlantic Accord Implementation Act, and the Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act (otherwise known as the Accord Acts).
  • Ontario Court of Appeal Upholds Denial of Certification for Problem Gamblers
    August 15, 2013
    In a ruling released on July 31, 2013, problem gamblers in Ontario were denied certification of a $3.5-billion class action law suit commenced against the Ontario Lottery and Gaming Corporation. The Court of Appeal's decision in Dennis v Ontario Lottery and Gaming Corporation marks the third in a string of decisions declining to certify the proposed action on the basis of its failure to overcome the hurdles of section 5(1)(b)-(e) of the Class Proceedings Act.
  • Third Party Funding Gains Traction in Ontario Class Actions
    August 08, 2013
    Ontario class counsel are increasingly entering into third party funding arrangements to hedge against the risks of adverse costs awards. Though the concept of third party funding remains a "work in progress", the current state of the practice was recently reviewed and summarized by Justice Perell in Bayens v. Kinross Gold Corporation, 2013 ONSC 4974.
  • OSC Proposes Disclosure Requirements Regarding Women on Boards and in Senior Management
    August 06, 2013
    On July 30, 2013, the Ontario Securities Commission (OSC), released its proposal to require TSX-listed companies to provide disclosure with respect to women on boards and in senior management as set out in the OSC Staff Consultation Paper 58-401 – Disclosure Requirements Regarding Women on Boards and in Senior Management.
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