• Sentencing Reasons Call for Higher Fines and Jail Time in Price-Fixing Cases
    October 30, 2012
    On May 3, 2012, Maxzone Auto Parts (Canada) Corp. pleaded guilty to one count of contravening the foreign directed conspiracy offence, under section 46 of the Competition Act. Maxzone Canada is an affiliate of a Taiwan-based manufacturer and is involved in the manufacture, distribution and sale of aftermarket automotive replacement lighting parts. Chief Justice Crampton of the Federal Court accepted the parties' jointly recommended sentence and imposed a fine of $1.5 million on Maxzone Canada for its role in a price-fixing scheme, albeit not without reservations. As promised, on September 24, 2012, the Chief Justice issued sentencing reasons highly critical of the evidentiary record and submissions that were made in support of the jointly recommended sentence. 
  • SCC Confirms Risks of Employee Privacy are Real and Manageable
    October 25, 2012
    In a widely anticipated decision on the issue of workplace privacy, the Supreme Court of Canada released reasons in R v Cole on October 19, 2012. The Supreme Court confirmed that, in circumstances where personal use is permitted or reasonably expected, employees can have a reasonable expectation of privacy in personal data stored on devices owned by their employer.1
  • TSX Listed Companies Face Changes to Board Election Process
    October 24, 2012
    The Toronto Stock Exchange has approved amendments to the TSX Company Manual relating to director elections. The TSX has indicated that it believes the corporate governance landscape in Canada is lagging vis-à-vis other jurisdictions and has adopted the amendments to support good governance and provide an effective voice to the Canadian investing public on the director election process.
  • SCC Rules on Mitigation and Specific Performance in a Real Estate Deal Gone Wrong
    October 18, 2012
    Plaintiffs seeking specific performance in a real estate transaction are saying that no amount of money can replace what they lost when the other side fails to close: they want the property they agreed to purchase. Mitigation, on the other hand, is an obligation to limit your damages, and in a real estate transaction, that means purchasing reasonable alternative properties (so as to capture any increase in value while the parties litigate). The Supreme Court of Canada had to reconcile these divergent doctrines in a decision released October 17.
  • The Importance of Product Specificity in the Listing Patents
    October 16, 2012
    The Patented Medicines (Notice of Compliance) Regulations (SOR/93-133) provides the framework for most of Canada's patent litigation. The Patent Act and the PM (NOC) Regulations seek to balance “effective patent enforcement” over new and innovative drugs with the “timely market entry” of lower priced generic versions once the patents have expired. The PM (NOC) Regulations provide innovators of pharmaceutical patents with an ability to list their patents on a Patent List. A generic drug maker who wishes to obtain consent from Health Canada to market a drug based on the same active ingredient (called a Notice of Compliance or NOC) must address the applicable patents on the Patent List. The generic drug maker may address such listed patents by accepting that its product will not receive an NOC until expiry of a listed patent, or may assert that its product would not infringe the claims of such listed patent or may challenge the validity of a listed patent. 
  • Supreme Court Grants Enhanced Access to Justice for Victims of Cyberbullies
    October 03, 2012
    On September 27, 2012, the Supreme Court of Canada released its decision in AB v Bragg Communications Inc., an important constitutional case at the intersection of defamation law and children's rights. This article was reprinted in Volume 10, Number 1, of the Canadian Privacy Law Review. 
  • Foreign-Controlled Canadian Corporations Beware
    October 01, 2012
    On August 14, 2012, the Department of Finance released draft legislation that includes a revised version of the foreign affiliate dumping proposals tabled with the March 29 Federal Budget. The stated objective of the proposals is to curtail the inappropriate erosion of the Canadian tax base but the rules are much broader than that. The revised proposals have potentially adverse income tax consequences where a corporation resident in Canada (CRIC) that is, or becomes, controlled by a non-resident corporation (a parent) makes an investment in a non-resident corporation (a subject corporation) that is, or becomes, a foreign affiliate of the CRIC. Many submissions have been made to the Department of Finance raising concerns with the proposals and a further draft of the legislation is expected. However, it remains to be seen whether these concerns will be fully addressed.
  • Lowering the Bar for Standing in Public Interest Cases
    September 27, 2012
    On September 21, 2012, the Supreme Court of Canada released its decision in Canada (AG) v Downtown Eastside Sex Workers United Against Violence Society, a case dealing with the law of public interest standing in constitutional cases. The court's decision appears to lower the bar for standing, which might make it easier for non-governmental organizations and other third parties to initiate constitutional claims. 
  • No Gold in Attempted Securities Class Action Against Coal Company
    September 26, 2012
    A recent Ontario decision confirms that lawyers must carefully scrutinize the evidentiary record (particularly expert reports) before arguing a motion for leave to commence an action for secondary market misrepresentation under Part XXIII.1 of the Securities Act (Ontario). On September 14, 2012, the Ontario Superior Court Justice released the reasons of Justice Strathy in Gould v. Western Coal Corporation, which denied leave to proceed with a proposed class action that alleged that the company and certain of its former directors had misrepresented the true financial status of the company. Further, Justice Strathy denied Gould's request to certify the action as a class proceeding. The action alleged that certain former directors and institutional investors conspired to artificially depress the company's share price in order to create false panic with investors, increase their own holdings at a discount and gain a windfall when the stock later surged in value.
  • Rules on Requirements for Amending Remote Agreements with Consumers
    September 10, 2012
     Under Ontario Consumer Protection law, in order to amend a remote agreement, the agreement must contain either a right on the consumer to terminate the agreement, or retain the existing agreement. An agreement that attaches conditions to the consumer's right to terminate if they do not agree with the amendment, even if such conditions are reasonable (such as consumer cannot be in default and has to pay costs), would be defective and may not be enforceable.
  • Recent Alberta Court of Appeal Decision on Service Ex Juris and the Hague Convention
    August 20, 2012
    On July 31, 2012, the Alberta Court of Appeal released Metcalfe Estate v Yamaha Motor Powered Products Co., Ltd., 2012 ABCA 240. The case has important implications for the service of documents from Alberta into international jurisdictions which are signatories to the Hague Convention on the Service Abroad of Judicial and Extra-judicial Documents in Civil or Commercial Matters, such as the US, UK, China, Germany, France and Norway. 
  • Pursuing the Balance in Copyright
    July 13, 2012
    One of the most important recent cases of the Supreme Court of Canada in the field of copyright law has been CCH Canadian Ltd. v. Law Society of Upper Canada, [2004] 1 S.C.R. 339, in which the Court breathed real meaning into the fair dealing exception, now called a user's right. 
  • Alberta Court of Appeal Balances Privacy Rights Against Freedom of Expression
    July 10, 2012
    On April 20, 2012, the Alberta Court of Appeal released its decision in United Food and Commercial Workers, Local 401 v Alberta (Attorney General) clarifying the treatment of the statutory privacy rights created by the Alberta Personal Information Protection Act vis-à-vis the right to free expression guaranteed by the Canadian Charter of Rights and Freedoms. In this decision, the Court held that a union's ability to, among other things, make and distribute recorded images of individuals crossing a picket line was protected as an expressive right under the Charter and trumped any such individuals' privacy rights under the Act. The Court, most notably, also held that the Act was unconstitutional, and that the protections afforded thereunder cannot be equated to being constitutional in nature. 
  • The Need to Know Versus the Right to Intrude: A Caution on Fraud Investigation
    July 05, 2012
    Inevitably, properly conducted fraud investigations involve reviewing and digesting the information of the alleged fraudster. Bank records, e-mail accounts, correspondence – all of it must be obtained and examined to prove the fraud, trace the misappropriated funds and obtain recovery. While such intrusions on otherwise private information are a feature of any civil litigation, the tight timelines, zeal and covert manner in which fraud investigations are conducted create particular tension between the apparent need of the defrauded, investigating victim to know what happened and the privacy interests of the innocent-until-proven-guilty suspect. Recent jurisprudence has brought this tension squarely into the open. 
  • Ontario Court of Appeal Certifies Bank Overtime Class Actions
    June 27, 2012
    On June 26, 2012, the Ontario Court of Appeal released its reasons in three leading employment class action cases: Fresco v. Canadian Imperial Bank of Commerce, Fulawka v. Bank of Nova Scotia and McCracken v. Canadian National Railway Co. The Court of Appeal ordered that the class actions by front-line staff against CIBC and BNS for unpaid overtime can proceed. The Court overturned the decision certifying a similar claim by CN employees. Chief Justice Warren Winkler authored all three unanimous decisions.
  • Canadian Government Announces Changes to the Investment Canada Act
    June 18, 2012
    In a series of announcements and statutory amendments over the last several years, the Canadian government has signalled its intent to limit reviews under the Investment Canada Act (ICA) to more significant transactions and to strengthen the ICA review and enforcement processes for those transactions that remain subject to review. 
  • Changes to the Regulation of Oil and Gas in Saskatchewan
    June 04, 2012
    In May of 2011, Saskatchewan passed changes to The Oil and Gas Conservation Act, the act governing the regulation of resource development operations in the province. Although the associated Bill received Royal Assent on May 18, 2011, it was not proclaimed into force until April 1, 2012, in conjunction with the release of The Oil and Gas Conservation Regulations, 2012 and The Petroleum Registry and Electronic Documents Regulations.
  • Regulations Clarifying Ontario Pension Reform Agenda Introduced
    May 16, 2012
    While the Pension Benefits Act (PBA) was amended in 2010 by Bills 236 and 120, regulations to clarify the Ontario government's pension reform agenda are only now being introduced. The first batch of draft regulations (amending the general regulation under the PBA) were posted on the Regulatory Registry on April 30 and May 3. We discuss these in detail below. The budget papers from the March 2012 Ontario budget also made a number of comments about Pooled Registered Pension Plans. 
  • Bennett Jones Spring 2012 Economic Outlook
    May 14, 2012
    As we explained in our fall 2011 economic outlook, there are three major factors influencing short-term global economic performance that businesses should be aware of when setting their plans. First, as a legacy of the financial crisis, deleveraging in the financial, household and government sectors will constrain economic growth to below-trend levels in many advanced economies. Second, strong growth will continue in emerging market economies (EMEs), although at rates somewhat below those in recent years, particularly in China, which has become relatively more reliant on domestic demand to drive growth. Third, how economic policies adjust to growth prospects and internal imbalances will play a crucial role. In all markets, there is a heightened degree of uncertainty with respect to economic policy as governments in advanced economies deal with the political consequences of deleveraging and governments in the EMEs, particularly China, struggle with the domestic politics of adapting to slower growth of external demand. 
  • Ontario Superior Court Refuses to Certify Proposed Misclassification Overtime Class Action
    May 07, 2012
    Justice George Strathy of the Ontario Superior Court has refused to certify a proposed class action commenced against the Canadian Imperial Bank of Commerce and CIBC World Markets on behalf of a class of employees alleging that their jobs were misclassified in a way that wrongfully defeated their entitlement to be paid overtime. 
  • Plan for Responsible Resource Development
    April 20, 2012
    On April 17, 2012, the Canadian government announced as part of its Economic Action Plan 2012 its plan for Responsible Resource Development, which is intended to streamline the regulatory review process for major economic projects by introducing new legislation to achieve greater efficiency and predictability, more effective environmental protection and more meaningful consultations with Aboriginal peoples. 
  • New Regulatory Regime for Credit Rating Organizations
    April 19, 2012
    The Canadian Securities Administrators (CSA) are adopting National Instrument 25-101 Designated Rating Organizations (NI 25-101), related policies and related consequential amendments, that will impose new requirements on credit rating agencies or organizations (CROs) that wish to have their credit ratings eligible for use in securities legislation. The new instrument, related policies and related consequential amendments will come into force on April 20, 2012. 
  • Careful on the Plea of Conspiracy
    April 16, 2012
    Most fraud recovery claims involve a claim of conspiracy. Fraud by its nature is opaque and in many cases the victim knows it has been defrauded, knows that a number of parties were involved, knows that the money or assets have been hidden or moved outside of the jurisdiction beyond reach and knows that the ill-gotten gains can be moved faster than the victim can chase them. In looking to attach liability to the individuals behind the fraud, the plea of conspiracy is usually advanced. However, in many cases the particulars of the conspiracy are vague and difficult to ascertain. The recent decision in HSBC Bank of Canada v. 1100336 Alberta Ltd. (Incredible Electronics Wholesale), 2011 ABQB 748 is instructive on how parties must be careful in the manner in which they allege and marshal evidence to prove the “agreement” or “common design” necessary to establish a conspiracy. 
  • CRTC Finalizes Electronic Commerce Protection Regulations
    April 04, 2012
    In anticipation of Canada's new anti-spam legislative regime (CASL) going into effect, draft regulations issued last fall by the Canadian Radio-television and Telecommunication Commission (CRTC) and Industry Canada faced many concerns raised by industry groups. As a result, these regulations were reconsidered. 
  • Sound Marks Now Registrable in Canada
    April 03, 2012
    The Canadian Intellectual Property Office has announced that, effective immediately, it will accept applications for sound marks. 
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