Stay informed on the latest business and legal insights and events.
Updates
March 2013 Federal Budget Provisions Concerning Pipeline Abandonment Trusts
March 25, 2013
The March 21, 2013 Federal Budget changed the tax
law applicable to the pipeline abandonment trust (Trust)
structure that has been submitted to the National Energy Board
(NEB) as the proposed mechanism for setting aside funds for the
cost of abandoning interprovincial and international pipelines subject to NEB
jurisdiction. As a result, the qualifying environmental trust
(QET) rules in the Income Tax Act
(Act) will apply to the proposed Trusts with the result that
funds for pipeline abandonment held in the Trust will be subject to the double
tax inherent in the QET regime. This is not expected to pose material problems
for any particular pipeline company or shipper. However, over the course of the
lives of the Trusts, this change is likely to add hundreds of millions of tax
dollars to Government coffers. Published on the Bennett Jones Thought Network.
The CSA Proposes a New Framework for Shareholder Rights Plans and Amendments to the Early Warning Reporting Regime
March 22, 2013
Last week, the Canadian Securities Administrators (CSA) published a proposed new regulatory framework for shareholder rights plans under National Instrument 62-105 Security Holder Rights Plans, and significant changes to Canada's early warning reporting regime with proposed amendments to National Instrument 62-103 Early Warning System and Related Take-Over Bids and Insider Reporting Issues, Multilateral Instrument 62-104 Take-Over Bids and Issuer Bids and National Policy 62-203 Take-Over Bids and Issuer Bids.
Damages Awarded Against Underwriter for Failing to Complete a Bought Deal
March 21, 2013
The Ontario Superior Court of Justice recently awarded damages of just over $16 million against Thomas Weisel Partners Canada Inc. (now Stifel Nicolaus Canada Inc.) for failing to close on a bought deal private placement financing. The decision confirms that bought deal letters are binding agreements.
SCC will Decide Finder's Fee Arbitration Case
March 15, 2013
The Supreme Court of Canada has just decided to hear a commercial arbitration case arising from a finder's fee dispute in the mining industry. The legal issues in the appeals — plural — go to the heart of the relationship between private commercial arbitration and Canadian courts. Published on the Bennett Jones Thought Network.
CIPO Issues Examiner Guideline for Computer-Implemented Inventions (PN 2013-03)
March 14, 2013
After some prior iterations and commentary from the patent bar, the Canadian Intellectual Property Office (CIPO) published a practice note dealing with computer-implemented inventions on March 8, 2013. The practice note is meant to clarify the position of Examiners in light of the recent Amazon.com decision. In a nutshell, CIPO comments on patent-eligible subject-matter in computer-related inventions, going through clearly non-statutory matter (such as specifically excluded fine arts, methods of medical treatment, scientific principles and abstract theorems). Additionally, it comments that inventions which lack physicality (not something with physical existence or which manifests a discernible effect or change) or where the subject-matter is a mere idea, scheme, plan or set of rules are also excluded from the definition of invention. Published on the Bennett Jones Thought Network.
Alberta Court says Air Cargo Liability Limits can be Broken
March 13, 2013
Cargo airlines operating in Alberta may soon find themselves training their front-line staff to ask more questions when dealing with individual consumers. Last month, the Provincial Court of Alberta released a decision in which it held that the Montreal Convention does not dispense with the notice requirements applicable at common law, extending the reading the same court took seven years earlier in a case involving a baggage claim to cases involving air cargo. For airlines, this means that limits on carrier liability under the Montreal Convention can be broken if their staff fail to bring the Montreal Convention limits to a non-commercial shipper's attention. What is more, a simple verbal declaration of a shipment value that exceeds the Montreal Convention coverage may now be enough to circumvent the limits that were previously considered unbreakable. Published on the Bennett Jones Thought Network.
Frito-Lay: CITT Lays Down the Law
March 11, 2013
The Canadian International Trade Tribunal decision in Frito-Lay v. President of the CBSA, AP-2010-002 (December 21, 2012), reasons January 8, 2013, teaches Canadian importers and the CBSA a number of important lessons. Three are of particular importance: (1) burden of proof, (2) jurisdiction of the CITT in cases of the President's failure to respond without delay to requests for further re-determination, and (3) limitation periods applicable to claims of NAFTA tariff preference. Published on the Bennett Jones Thought Network.
Canada Combats Counterfeiting with Bill C-56 (Copyright Act and the Trade-marks Act)
March 08, 2013
On March 1, 2013, the Government of Canada introduced Bill C-56 in the House of Commons (The Combating Counterfeit Products Act). Bill C-56 introduces a series of amendments to the Copyright Act and the Trade-marks Act, intended to strengthen the enforcement of copyright and trade-marks rights by way of new border enforcement measures and both civil and criminal remedies. Published on the Bennett Jones Thought Network.
Taking Control of the Arbitration Process
February 28, 2013
Most of the time, we are told that solving a problem is simple. Buy this amazing product and you'll lose weight quickly and easily – and keep it off! Vote for me and your taxes will go down (and government services will improve). Published on the Bennett Jones Thought Network.
Whatcott: Canadian Hate Speech Laws Live to Fight Another Day
February 27, 2013
The Supreme Court of Canada released its much-anticipated decision in Saskatchewan Human Rights Commission v Whatcott today (they are all “much-anticipated” but this decision was on reserve for 16 months, a long time for the Supreme Court). The Court, in a unanimous 6-0 decision, held that the hate speech prohibition in the Saskatchewan Human Rights Code was largely constitutional. We acted for an intervener on the appeal. Published on the Bennett Jones Thought Network.
A Summary of Canadian Environmental Law for Non-Canadian Practitioners
February 25, 2013
Canada's vast geography, stretching from the Atlantic Ocean to the Pacific Ocean and from its long border with United States to the Arctic and encompassing multiple ecological regions including fresh and salt water coastlines, mountains, forests, prairies, arctic and sub-arctic tundra and island archipelagos and fertile river valleys as well as large and small population centres, has provided a stage upon which the growth of a modern economy, strongly based in resource extraction but participating in industrial and technological development on a relatively even footing with those of the United States, European countries, Japan, Australia and New Zealand and other prosperous economies, has taken place. Published in chapter 18 of International Environmental Law by the American Bar Association's Section of Environment, Energy and Resource.
The Duty to Accommodate Family Status (and Potentially Lifestyle Choices Too)
February 25, 2013
In an update last October (Accommodating Family Status – Needs vs. Preferences) we advised you that the Ontario Human Rights Tribunal established a new test for an employer's duty to accommodate on the basis of family status (i.e., must accommodate an employee's genuine needs but not mere preferences). All employers, but especially federally regulated employers should take note that the Federal Court recently outlined an even more liberal and broad interpretation of the duty to accommodate on the basis of family status. The Federal Court confirmed in the decision of Attorney General of Canada v. Fiona Anna Johnstone and Canadian Human Rights Commission, 2013 FC 113, that parental childcare obligations fall within the scope of family status. In doing so, the court confirmed the central question as “whether or not the employment rule in question interfered with an employee's ability to fulfill substantial parental obligations in a realistic way”. Significantly, the court rejected the line of cases (Health Sciences Assoc. of B.C. v. Campbell River and North Island Transition Society) that held there must be a “serious interference” with a substantial family duty (including parental or elder care) for the employee to prove discrimination on basis of family status. As such, this decision opens the door to requiring accommodation of employee lifestyle choices. As a result of the Johnstone decision, employers should understand that while there is still some conflicting law on the applicable standard for accommodating family status, the law is clear that requests for accommodation on the basis of family status must be treated seriously. Published on the Bennett Jones Thought Network.
Commercial Arbitration Can be Better than Court
February 22, 2013
“The definition of insanity is doing the same thing over and over and expecting different results.” That sentence has been attributed to Albert Einstein, Mark Twain and others. Whoever said it has a point that applies to commercial dispute resolution. Published on the Bennett Jones Thought Network.
International Tax & Transfer Pricing Strategies in the Crosshairs
February 21, 2013
The CD recently issued a report targeting corporate tax planning and transfer pricing strategies, which it asserts constitute a serious risk to tax revenues, tax sovereignty among nations and tax fairness. (CD (2013), Addressing Base Erosion and Profit Shifting, CD Publishing) Published on the Bennett Jones Thought Network.
Class Action Settlement Take-up Significant for Fee Approvals
February 19, 2013
On February 14, 2013, the Ontario Court of Appeal released its decision in Lavier v MyTravel Canada Holidays Inc, which deals with the approval of class counsel fees in a settled class proceeding. The decision provides some useful guidance regarding the structuring of class action settlements. Furthermore, the court's analysis indicates that where few class members participate in the settlement, the objective of incentivizing class counsel to achieve access to justice for wronged persons who would not otherwise obtain redress is diminished. Accordingly, a lesser fee award may be appropriate.
A Charter Right to Search Google?
February 13, 2013
The Internet has transformed society in so many ways. Even the ways we find information and the sources we rely upon have been fundamentally transformed. It appears our legal systems need to adapt to this new reality. Published on the Bennett Jones Thought Network.
New Concerns for Bondholders, Lenders and Other Creditors Following SCC's Indalex Decision
February 12, 2013
On February 1, 2013, the Supreme Court of Canada (SCC) released its much-awaited decision in the Indalex case. While the central issue in Indalex was the priority of wind-up deficiencies in defined benefit pension plans versus court-ordered debtor-in-possession (DIP) financing charges under the Companies' Creditors Arrangement Act (Canada) (CCAA), the SCC also considered whether claims for wind-up deficiencies are covered by deemed trusts under the Ontario Pension Benefits Act (PBA). This issue is of particular importance to lenders, bondholders and other creditors both in the ordinary course and in an insolvency or restructuring.
Multinationals Beware! Customs Evidentiary Burden of Proof
February 11, 2013
On January 4, 2013, the federal Canadian tribunal with appellate jurisdiction relating to customs valuation, among other subjects, schooled multinationals on their obligations to meet the evidentiary burden of proof relating to declared values for duty. Published on the Bennett Jones Thought Network.
Canada Moves to Strengthen Anti-Bribery Legislation
February 05, 2013
On February 5, 2013, the government of Canada announced important amendments to the Corruption of Foreign Public Officials Act (CFPOA). It is expected that the amendments, which are being introduced in the Senate, will be enacted by Parliament in a relatively short time with all-Party support.
Canadian Anti-Corruption Amendments
February 05, 2013
Following the announced amendments to Canada's Corruption of Foreign Public Officials Act (CFPOA), which we wrote about here, there are changes that will likely bring more scrutiny for Canadians and Canadian businesses abroad. Published on the Bennett Jones Thought Network.
Canadian Courts Consider Alcohol and Drug Testing
January 31, 2013
The Supreme Court of Canada (in Irving Pulp
& Paper, Ltd. v. Communications, Energy and Paperworkers Union of Canada,
Local 30) and the Alberta Court of Appeal (in Communications, Energy and Paperworkers Union, Local
707 v. Suncor Energy Inc.) have recently heard cases concerning random drug
and alcohol testing in the workplace1. Both cases involved a union grievance
against an employer seeking to implement a random drug and/or alcohol testing
policy for safety-sensitive employees. The cases highlight the uncertainty that
exists in the law in this area, and in each instance the final decision remains
pending: the Supreme Court has reserved judgment in Irving Pulp & Paper, while in Suncor Energy the Alberta Court of Appeal upheld
an interim injunction preventing Suncor from implementing its drug and alcohol
policy pending a hearing before an arbitration board to determine its
enforceability.
Marketing Intangibles in International Transfer Pricing
January 29, 2013
An Indian tax appellate tribunal has recently ruled on the issue of marketing intangibles in a transfer pricing case involving the Indian manufacturing and sales subsidiary of the Korea-based LG Electronics Inc. Published on the Bennett Jones Thought Network.
CFPOA Bribery Fine of $10.3 million Imposed on Canadian Company
January 28, 2013
Griffiths Energy International Inc. (GEI) pleaded guilty on January 22, 2013, to one charge of bribing a foreign official contrary to the Canadian Corruption of Foreign Public Officials Act (CFPOA). This is the third conviction under the CFPOA, and the first such conviction where a party has self-disclosed a contravention following an internal investigation.
UK Case Re-examines Legal Privilege
January 25, 2013
This week the U.K. Supreme Court decided that tax law advice provided by accountants is not covered by legal professional privilege. So the government and the court will have relevant evidence to use against the taxpayer. And tax law advice from a lawyer is privileged in the U.K., but the very same advice from an accountant is not. Published on the Bennett Jones Thought Network.
Bennett Jones