Stay informed on the latest business and legal insights and events.
Updates
Bringing CASL into Focus
January 24, 2013
Industry Canada and the Canadian Radio-television and Telecommunications Commission (CRTC) have received numerous stakeholder submissions and inquiries in relation to Canada's Anti-Spam Legislation (CASL) and its two subordinate regulations, known as the Electronic Commerce Protection Regulations (ECPR). While the CRTC's ECPR have been in final form since March 28, 2012, Industry Canada has been receiving feedback through public comment and bilateral and multilateral stakeholder meetings since its original draft ECPR were published on July 9, 2011. Both Industry Canada and the CRTC have recently attempted to improve understanding of the new legislation: Industry Canada has incorporated stakeholder feedback into a new draft ECPR while the CRTC has released further information on the new legislation.
Indemnification Claims Under the CCAA
January 24, 2013
Indemnification clauses are often considered a critical component of risk mitigation strategies in legal relationships. However, as is well understood, the value of an indemnification clause, in the event it becomes applicable, is dependent on the underlying financial viability of the entity granting the indemnity.
Tax Advice Given by Accountants Not Protected by Privilege
January 24, 2013
Legal advice privilege applies only to lawyers and does not extend to tax advice provided by accountants, the United Kingdom Supreme Court (formerly the House of Lords) confirmed in its first judgment of 2013: R (on the application of Prudential plc and another) v Special Commissioner of Income Tax, [2013] UKSC 1.
A Busy Year in Court: Canadian Competition Law in 2012
January 22, 2013
2012 was a busy year for Canadian competition litigation, as numerous cases were heard or decided. The Supreme Court of Canada heard three class proceedings cases involving the Competition Act and the Competition Tribunal had two lengthy hearings.
Electronic Commerce: A Practitioner's Guide
2013
Martin Kratz, Q.C. and Sebastien Gittens contributed the "Anti-Spam Legislation" chapter, Electronic Commerce Law, loose leaf service by Carswell Legal Publications.
Avoiding Self-Incrimination in Canada
December 17, 2012
It is increasingly common for counsel to find themselves dealing with a civil action in which one party may be facing criminal or regulatory sanctions arising from the same events underlying the civil action. For example, a defendant may be charged in criminal or regulatory proceedings for insider trading or tipping and may also be defending a civil action for, among other things, breach of fiduciary duty. Similarly, a company may commence a civil action against a former employee to recover stolen funds while that individual faces criminal fraud charges. These issues may also arise in personal injury, antitrust and environmental litigation. The Supreme Court of Canada's recent decision in R v Nedelcu raises some complex and difficult issues for counsel on the use of civil evidence in subsequent criminal proceedings.
Canadian Government Adjusts Rules for Foreign Investment
December 11, 2012
On December 7, 2012, the Canadian Minister of Industry announced decisions under the Investment Canada Act (ICA) to allow acquisitions by two foreign state-owned enterprises (Ss): of Nexen Inc. by China National Offshore Oil Corporation (CNOOC) and of Progress Energy Resources Corp. by Malaysia's Petroliam Nasional Berhad (PETRONAS). Immediately following this announcement, the Prime Minister of Canada announced changes to how the government will review acquisitions by foreign Ss.
Alberta's New Pension Legislation: Bill 10, the Employment Pension Plans Act
December 05, 2012
Bill 10, the proposed new Employment Pension Plans Act (EPPA), was introduced in the Alberta legislature on October 25, 2012, and passed third reading on November 20, 2012. Although the new Act has been passed, it will not become effective until proclamation, which will follow the release of a new Employment Pension Plans Regulation. The new EPPA follows from the report of the Joint Expert Panel on Pension Standards, and represents the Alberta government's intention to provide greater flexibility and affordability for private sector pension plans. Bill 10 is also the culmination of Alberta and British Columbia's efforts to harmonize pension laws between the two provinces, following British Columbia's introduction of Bill 38, the Pension Benefits Standards Act, earlier this year.
Supreme Court of Canada Establishes Important Principles in Transfer Pricing
December 03, 2012
The Supreme Court of Canada recently released its judgment in The Queen v Glaxo Smith Kline Inc., (Glaxo), which is the Court's first pronouncement on Canada's transfer pricing rules. Transfer pricing involves the allocation of profits in cross-border transactions among related parties and it is a contentious issue that can result in double taxation for taxpayers as governments in different jurisdictions seek to tax the same income. Transfer pricing is a high priority enforcement area for the Canada Revenue Agency and revenue authorities in other countries. Although the Glaxo case involved the interpretation of an earlier iteration of Canada's transfer pricing rules, the Supreme Court's reasons establish some key principles that should have application to Canada's current transfer pricing regime and the case is therefore an important one for Canadian multi-nationals. Overall, the decision is a positive one for Canadian businesses; however, the Supreme Court has sent a clear signal that allocation of transfer prices among related parties participating in multiple transactions, such as the licence of a trademark and the supply of goods and/or services, will be carefully scrutinized. Multiple transaction arrangements are common amongst multi-national enterprises large and small and, in light of the Glaxo case, businesses should revisit their transfer pricing documentation and legal agreements to mitigate the risk of reassessment and penalties by tax and customs authorities.
Alberta Court Skewers Gibberish Legal Arguments
November 29, 2012
In a decision that will no doubt have significant ramifications for businesses, governments, and the litigation bar across Canada, Associate Chief Justice Rooke of the Alberta Court of Queen's Bench has addressed a vexatious group of litigants who have plagued the Canadian legal system for over a decade. The Court has named this troubling group the Organized Pseudolegal Commercial Argument litigants, or OPCA litigants for short. To some, OPCA litigants may be better known by various labels such as Detaxers, Freemen-on-the-Land, Sovereign Citizens, and many others. They are known for refusing to recognize bills, debts, tax assessments, or any legal obligations for that matter. Although their arguments have been universally dismissed when presented in Court, OPCA litigants have never been effectively recognized as a defined or collective group warranting a coordinated response. Justice Rooke's decision does exactly that. It provides a universal “go-to” authority to assist in the effective dismissal of OPCA claims at an early stage in the proceedings and will be instructive reading for judges, lawyers, and business persons across the country.
FAQ on the Proposed Canadian Regulations for Prepaid Payment Products
November 28, 2012
Retailers and Financial Institutions in Canada need to be aware of the proposed Prepaid Payment Product Regulations which will apply to both physical and electronic payment cards that are, or can be, loaded with funds and used by a customer to make withdrawals or purchase goods or services (Prepaid Payment Products). The proposed Regulations will augment other Canadian consumer protection laws and regulations, such as the regulations in relation to credit agreements, including lines of credit and credit cards, which came into force in 2010.
Bennett Jones Fall 2012 Economic Outlook
November 27, 2012
Since our spring 2012 economic outlook, the crisis in the Eurozone has worsened and growth in the emerging economies has fallen more than expected, with negative spillovers on the United States and Canada. Uncertainty about future policies and their effects remains pervasive and the risks to growth in the short term are still predominantly on the downside. Under the assumption that political compromises are achieved and major policy failures are avoided, advanced economies will experience subdued growth and emerging market economies (EMEs) a relatively robust expansion over the next two years, while commodity prices should remain at roughly current levels but experience greater volatility. The legacy effects of the financial crisis and recession continue to weigh on the global recovery through private-sector deleveraging and fiscal consolidation. However, a diminution of deleveraging, as private debt falls to more prudent levels relative to income and government deficits are contained, sets the stage for better growth in advanced economies around mid-decade.
Industrial Designs Enforcement Seen Through Double Glasses
November 27, 2012
Industrial design protection is an often overlooked form of protection that is a poor cousin of Copyright. For historical reasons, Canadian law prejudices against certain authors who create designs which can be applied to useful articles. By virtue of Section 64(2) of the Copyright Act, RSC 1985, c C-42, if more than 50 copies of the articles are made by or at the direction of the owner of the copyright in the design then substantial copyright and moral rights protection is lost. Protection may be available under the Industrial Design Act, RSC 1985, c I-9 (IDA), a registry system.
OSC Publishes Guide for Emerging Market Issuers
November 26, 2012
Canada is an attractive public market for emerging market issuers—issuers whose mind and management are largely outside of Canada and whose principal active operations are outside of Canada. The receptiveness of the Canadian capital markets to funding resource and other businesses with limited, if any, connection to Canada, has resulted in an increasing number of emerging market issuers choosing Canada as a jurisdiction in which to go public. However, the recent and notable failure of certain emerging market issuers has resulted in increasing regulatory focus on this market segment.
Large Enterprise Software Projects: ERP Success ASAP
November 26, 2012
Based on our ERP transactional and dispute resolution experience, we offer the following three must-dos to promote ERP project success and to avoid being substantially (if not drastically) off spec on functionality, excessively over budget and a victim of material delays, all of which can devastate your enterprise's business and reputation.
No More House Arrest for Competition Act Offenders as Amendments Enter into Force
November 22, 2012
On November 20, 2012, amendments to the sentencing provisions of the Criminal Code, introduced by Bill C-10, the Safe Streets and Communities Act, entered into force. The Safe Streets Act received Royal Assent on March 13, 2012. It amends several statutes, including the Criminal Code, and removes the availability of conditional sentences for those convicted of conspiracy or bid-rigging offences under sections 45 and 47 of the Competition Act. Conditional sentences, which are sentences served in the community (i.e., house arrest), are available for offences that do not carry a minimum sentence and where the court imposes a sentence of less than two years.
Anti-Corruption Law: Implications of the U.S. FCPA Resource Guide for Canadian Business
November 16, 2012
On November 14, 2012, the U.S. Department of Justice and U.S. Securities and Exchange Commission released their long-awaited Resource Guide to the U.S. Foreign Corrupt Practices Act. The 120-page Guide provides valuable direction on anti-corruption compliance for companies and individuals carrying on business internationally.
Canada Modernizes Copyright Legislation
November 12, 2012
Copyright reform in Canada has, after a decade of effort, finally moved towards implementation. On November 7, 2012, pursuant to an Order in Council, many provisions of the Copyright Modernization Act, SC 2012, c 20, came into force. Several other important provisions under the law, including the new Notice-and-Notice rules and provisions aimed at bringing Canada under the umbrella of two World Intellectual Property Organization (WIPO) treaties, will come into force at a later date.
Saskatchewan Changes its Occupational Health and Safety Act: Effective November 7, 2012
November 12, 2012
On November 7, 2012, changes to Saskatchewan's Occupational Health and Safety Act came into force.1 These changes will impact the performance of work in Saskatchewan, and should be considered when reviewing existing contracts for work in Saskatchewan, as well as during the formation of future agreements.
PETRONAS Decision Signals Feds' Caution on S Investment Reviews
November 08, 2012
On October 19, 2012, minutes prior to the expiry of the review period mandated by the Investment Canada Act (ICA), the Minister of Industry, Christian Paradis, announced that he was rejecting the proposed acquisition of Calgary-based Progress Energy Resources Corp. by PETRONAS, Malaysia's national oil and gas company. The question on many investors' minds is whether the PETRONAS decision simply reflects the Conservative government's desire to coordinate its reviews of two major foreign investments by Ss, or, whether it can be taken as something more, namely, as an indication that the ICA review process is becoming more difficult, particularly for Ss and potentially for investments in the oil and gas sector. It is important in this regard to bear in mind that Canada has only formally blocked two foreign takeover bids since the ICA came into force in 1985.
Financial Statements Can Inadvertently Extend Limitation Periods
November 06, 2012
There is a deadline for suing someone. In Alberta, the deadline is generally the earlier of two years from when you knew or ought to have known of the claim, or 10 years from the date of the claim (in Ontario: two and 15 years). This general rule is subject to a number of exceptions. One such exception is for claims for a debt, rent or other specific amount of money (an accrued liquidated pecuniary sum). For such a claim, the deadline can be extended if the person liable acknowledges the claim before the expiry of the normal deadline. Recently, the BC Court of Appeal held that by referring to a debt in its financial statements, a company can be found to have acknowledged the claim for the debt and thereby to have extended the deadline for others to sue it for the debt. The decision could have implications for Alberta and Ontario corporations, since the Alberta and Ontario limitations acts contain similar wording to the BC act.
Alberta Privacy Law Decision to be Reviewed by the Supreme Court of Canada
November 01, 2012
On October 25, 2012, the Supreme Court of Canada granted leave to appeal a decision of the Alberta Court of Appeal that narrowed the application of privacy laws in Alberta. In United Food and Commercial Workers, Local 401 v Alberta (Attorney General), 2012 ABCA 130, the Court of Appeal questioned the constitutionality of Alberta's Personal Information Protection Act (PIPA) and protections against the collection, use, and disclosure of personal information in the context of labour strike activities.
Alberta Establishing a Single Energy Regulator
October 31, 2012
On October 24, 2012, the Alberta government introduced Bill 2, the Responsible Energy Development Act (REDA). REDA proposes to create a single regulator to manage the development of energy resources, including oil, gas, oil sands and coal, as well as energy resource activities requiring approval or subject to regulation. REDA does not apply to hydro energy. The Regulator will assume all functions of the Energy Resource Conservation Board (ERCB), as well as of Environment and Sustainable Resource Development for energy resources. The scope of REDA includes not only those energy resource enactments traditionally administered by the ERCB like the Oil and Gas Conservation Act, the Oil Sands Conservation Act, and the Pipeline Act, but also other specified enactments – including the Environmental Protection and Enhancement Act, the Public Lands Act, the Water Act, and Part 8 of the Mines and Minerals Act – all in respect of energy resources and energy resource activities only.
Accommodating Family Status – Needs vs. Preferences
October 30, 2012
A recent decision of the Ontario Human Rights Tribunal, Devaney v. ZRV Holdings Limited 2012 HRTO 1590, suggests if the employee's caregiving responsibilities are required, as opposed to a mere preference, the employer will have a duty to accommodate.
Bennett Jones