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Updates
Clean Energy Canada Investment Guide 2012
March 31, 2012
Understanding Canada's Provincial Renewable Energy Incentive Structures. This article aims to outline the plethora of incentive structures that are designed to promote development of renewable energy power projects in Canada. It includes an overview of current subsidies, a summary of the main criticisms of individual policies, and an analysis of the implications of potential impending subsidy alterations.
Ontario's Feed-In Tariff (FIT) Review Recommendations
March 23, 2012
On March 22, 2012, the government of Ontario released its scheduled two-year review report regarding its renewable energy feed-in tariff (FIT) program. The FIT program, along with other renewable energy programs, has placed Ontario at the forefront of a burgeoning global renewable energy industry. To date, the FIT program has resulted in approximately 2,000 power purchase agreements being entered into by the Ontario Power Authority (OPA) representing over 4,600 MWs of new renewable generation in Ontario.
Hold the Phone: Ontario Court Imposes Significant Penalties Against Phone Directory Fraudsters
March 06, 2012
Three years ago, the Conservative government increased – by a factor of 100 – the administrative monetary penalties (AMPs) payable for deceptive marketing practices in Canada. This was a significant increase from the prior regime and caused practitioners and their clients to take notice. But until March 2, 2012, those new powers had yet to be tested in a contested proceeding.
Ensuring Governance Oversight of Shared Services and Management Services Agreements Among Affiliated Companies: Disclosure Obligations
March 05, 2012
Part I of this two-part update alerted directors, corporate officers, and corporate counsel to the need to ensure that management (shared) service agreements between affiliated companies are negotiated on a defensible basis, are priced fairly and contain adequate compliance oversight, supervision and remedial provisions. Part II now examines the legal and regulatory requirements for publicly-traded companies to disclose shared services agreements that are material to their business.
Supreme Court of Canada Declines to Clarify the Scope of the Duty to Consult and Accommodate First Nations
February 28, 2012
In the May 2011 Bennett Jones Update, "Continued Challenges with Respect to the Scope of the Duty to Consult and Accommodate First Nations," we discussed the British Columbia Court of Appeal's decision in West Moberly First Nations v. British Columbia (Chief Inspector of Mines), 2011 BCCA 247, noting that the decision created potential uncertainty around the role cumulative effects play in the duty to consult.
RRSP Anti-Avoidance Rules: Important Payment and Tax Election Deadlines
February 21, 2012
Important changes to the taxation of registered retirement savings plans and registered retirement income funds (collectively referred to as an “RRSP”, although the changes apply equally to both types of plans) were enacted late last year that significantly reduce the types of investments that can be held in an RRSP without being subject to onerous taxes. These changes will require investors to be much more diligent in considering any new investments in their RRSP. Moreover, since the changes apply to any investments held in an RRSP on or after March 22, 2012, the changes mean that investors must review their existing RRSP investments and determine whether they are caught by the new rules. If the new rules apply, investors will have to determine whether they are eligible for special transitional relief, in which case if they want to continue to hold the investments in their RRSP they will need to make annual payments out of their RRSP and file a tax election by the end of June. If the transitional relief does not apply, investors will need to consider ways of removing the investments from their RRSP and whether they should apply for a waiver to reduce or cancel all or part of the tax owing under the new rules.
Leave or be Dismissed: Ontario Court of Appeal Restores Order to Securities Class Actions
February 17, 2012
On February 16, 2012, the Ontario Court of Appeal released its decision in Sharma v. Timminco, affirming the statutory requirement to seek leave to commence a secondary market securities class action within three years from the date of the alleged misrepresentation, failing which, the claim will be dismissed.
New Speed and Efficiency Provisions in the ICC's 2012 Arbitration Rules
February 07, 2012
The slow speed and high cost of litigation in some nations' courts are often cited as reasons to select arbitration to resolve international disputes. One perceived advantage of arbitration is that the right individuals appointed to an arbitral tribunal can control and streamline the process from start to finish, thereby improving on the experience in some courts.
Regulatory Settlements and Class Proceedings: The Ontario Court of Appeal Closes the Door, but is a Window Still Open?
January 31, 2012
On January 27, the Court of Appeal released its decision in Fischer v. IG Investment Management, upholding the decision of the Divisional Court to certify the class action. The main issue in this case is whether the class action should be certified in light of a settlement with the Ontario Securities Commission (OSC) which already provided the plaintiffs with a payment of $205.6 million. The motions judge refused to certify the class action on the basis that a class proceeding was not the preferred procedure given that access to justice had already been secured. However, this decision was reversed by the Divisional Court, and the Court of Appeal agreed with the conclusion of the Divisional Court but for different reasons.
Ontario Employers Take Note: New Privacy Tort Created
January 24, 2012
“A person's computer is a highly personal storage instrument. Many cases have concluded that an extremely high level of privacy is expected regarding the contents”. One week after the Ontario Court of Justice made that observation in Pottruff v. Don Berry Holdings Inc. (which involved a workplace setting), the Ontario Court of Appeal ruled in Jones v. Tsige that in Ontario the tort of invasion of personal privacy now exists. The Court has identified the basis for this new cause of action to be an “intrusion upon seclusion”.
Ensuring Governance Oversight of Shared Services and Management Services Agreements Among Affiliated Companies
January 19, 2012
Part I of this two-part update alerts directors, corporate officers, and corporate counsel to the need to ensure that management (shared) service agreements between affiliated companies are negotiated on a defensible basis, are priced fairly and contain adequate compliance oversight, supervision and remedial provisions. Part II will examine the legal and regulatory requirements for publicly-traded companies to disclose shared services agreements that are material to their business.
Round III to the Provinces: Supreme Court Rejects Canadian Securities Act as Unconstitutional
January 05, 2012
On December 22, 2011, the Supreme Court of Canada released its much anticipated decision on the constitutionality of the proposed Canadian Securities Act (CSA). To the surprise of many, the Supreme Court unanimously found the CSA to be unconstitutional and outside the authority of Parliament, much like the Alberta Court of Appeal and Quebec Court of Appeal did earlier last year. But the Supreme Court did not rule that the concept of a national securities regulator is necessarily unconstitutional. As such, the federal government is forced back to the drawing board.
Canada's Anti-Spam Legislation: Casting a Wide Net
December 20, 2011
The new Canadian anti-spam legislation (unofficially, the Anti-Spam Act) is one of the most comprehensive and onerous anti-spam statutes to date, imposing significant requirements not seen in other jurisdictions. Businesses using e-mail in Canada should carefully consider the impact of this legislation on their operations.
The Court of Appeal Clarifies Ontario's Summary Judgment Rule
December 12, 2011
The Court of Appeal for Ontario has provided much-needed clarification on the scope and purpose of Ontario's new summary judgment rules (Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764). The issue was important enough that the Court joined together five very different appeals from summary judgment motions, and the appeals were heard by a rare five-judge civil panel. In the Court's view, summary judgment motions should be limited to cases where (i) the parties agree to use summary judgment; (ii) the claim or defence is without merit or; (iii) where the motion judge can “fully appreciate” all of the evidence needed to dispose of the case without a trial.
Supreme Court of Canada Will Hear Indirect Purchaser Appeals
December 01, 2011
Today, the Supreme Court of Canada granted leave to appeal from
the British Columbia Court of Appeal's decisions in Pro-Sys Consultants Ltd.
v. Microsoft Corporation, 2011 BCCA 186 and Sun-Rype Products Ltd. v.
Archer Daniels Midland Company, 2011 BCCA 187. The BC Court of Appeal had
held that indirect purchasers in price-fixing class actions do not have a cause
of action recognized in Canadian antitrust law. The Supreme Court's decision to
hear the appeals signals its intention to rule on this important issue arising
in price-fixing class actions and dividing provincial appellate courts. A
decision on the merits of the appeal is likely to be the most significant to
date involving antitrust class actions in
Canada.
Bennett Jones Fall 2011 Economic Outlook
November 28, 2011
The year 2011 has been rich in shocks that reverberated through the global economy. They have heightened uncertainty and dampened both the already timid recovery in advanced economies and the robust expansion in emerging markets that we had expected for 2011 and 2012. Still, the same pattern of a two-speed world continues, with deleveraging constraining growth in mature economies, and investment and consumption supporting solid growth in the EMEs.
Just Say No May be Coming to Rights Plans in Canada
November 25, 2011
"Just say no" may soon be a reality for shareholders rights plans (also known as poison pills) in Canada. We understand that OSC Staff is contemplating proposing changes to the OSCs policies and decisions now governing the Canadian approach to rights plans. The approach under consideration is to allow shareholders to vote, either at the time a shareholder rights plan is adopted without any bid on the horizon, or at the time of a hostile bid, to authorize the Board to "just say no" to a bid rather than conducting a process leading to the eventual sale of the company to the hostile bidder or a white knight.
New Class Actions Law Introduces Risk for Companies Doing Business in Mexico
November 23, 2011
Mexico has recently passed class actions legislation putting certain Mexican businesses on edge. Although the legislation has certain unique provisions, it borrows from other Latin American class actions statutes and those of Mexico's neighbours to the north. To date, class actions have been virtually non-existent in Mexico, therefore this legislation will undoubtedly continue to garner attention as potential plaintiffs and their counsel prepare for its imminent arrival and the Mexican courts deal with this novel area of law.
Summary of the Canada Not-for-profit Corporations Act
November 16, 2011
The Canada Not-for-profit Corporations Act, S.C. 2009, c. 23 (NPCA) came into force on October 17, 2011. The NPCA supersedes Part II of the Canada Corporations Act (CCA), the former federal legislation for those seeking to incorporate a not-for-profit corporation (NFP). The CCA has long been recognized as outdated, having been last substantially revised in 1919. The NPCA is intended to provide a comprehensive framework, covering all aspects of corporations without share capital incorporated at the federal level. The NPCA mirrors the Canada Business Corporations Act (CBCA) in several respects, providing a familiar framework for practitioners to work with.
Is There A Constitutional Right to “Occupy” with Tents?
November 14, 2011
As municipal officials across the world begin to flex their muscle and take steps to dismantle tents, yurts, and similar structures established in connection with the local variant of the Occupy Wall Street movement, it seems inevitable that a major question is going to be raised at some point in the Canadian courts.
Smith v. Inco – Has the Door Closed on Environmental Class Actions in Ontario?
November 03, 2011
On October 7, 2011, the Court of Appeal for Ontario released its decision in the Smith v. Inco class action overturning the trial judge's $36-million award and providing an overview of the torts of nuisance and strict liability.
New Guidance on the Test for Leave to Bring a Secondary Market Misrepresentation Action
November 02, 2011
On October 21, 2011, the Supreme Court of British Columbia released the reasons of Justice Harris in Round v. MacDonald, Dettwiler and Associates Ltd., 2011 BCSC 1416. Round is the first decision from British Columbia to apply the leave test under Part 16.1 of the province's Securities Act (BCSA), which creates a civil liability regime for secondary market disclosure.
Bennett Jones