• IMAX and Securities Class Actions Involving the Secondary Market: The Big Picture is Still Not Clear
    March 01, 2011
    Silver v. IMAX is the first decision to consider the new statutory cause of action provisions under Part XXIII.1 of the Securities Act (Ontario) for misrepresentations made in secondary market disclosures. To bring such a claim, prospective plaintiffs must first obtain leave of the Court. This leave requirement serves a gatekeeper function, in order to weed out unmeritorious litigation.
  • No Claim Means No Claim!
    February 16, 2011
    It is a fundamental principle of contract law, one which public policy favours and subject only to certain well established and narrowly defined exceptions, that parties are free to determine for themselves the terms of contracts voluntarily entered into. Regrettably, the Supreme Court of Canada recently departed from this principle in Tercon Contractors Ltd. v. British Columbia, thereby injecting uncertainty into the enforceability of contractual arrangements. Originally published in the August 2010 issue of Canadian Lawyer.
  • When the First Sale is Not a First Sale
    February 07, 2011
    The Supreme Court of the United States recently decided a copyright case involving Swiss watchmaker Omega and retail giant Costco. In a 4-4 split, with no reasons, the Supreme Court affirmed the Omega, S.A. v. Costco Wholesale Corporation decision of the Ninth Circuit Court (541 F. 3d 982 (9th Cir. 2008)).
  • Special Committees – OSC says Process is Important
    February 04, 2011
    Directors who serve on special committees, and the companies that establish them, will want to read the final reasons of the Ontario Securities Commission in the Magna case (released yesterday). The OSC decision dealt with a transaction that was proposed to Magna shareholders to eliminate the company's dual class share structure.
  • The Canada Consumer Product Safety Act: Strengthening Canada's Product Safety Regulatory Regime
    February 02, 2011
    The Canada Consumer Product Safety Act (CCPSA), which received Royal Assent on December 15, 2010, will significantly change Canada's approach to consumer product regulation and recalls. The CCPSA was introduced to respond to concerns that Canada's product safety regime was inadequate to protect the health of Canadian consumers, as well as to align Canadian laws with the level of protection provided in other jurisdictions in response to pressure from trading partners.
  • Green Energy: First Appeal of Renewable Energy Approval
    January 27, 2011
    On November 10, 2010, Suncor Energy Services Inc.'s Kent Breeze 20 MW eight-turbine wind farm in Chatham-Kent, Ontario, received the first Renewable Energy Approval (REA) pursuant to Ontario's Green Energy Act. The REA has been appealed to the Ontario Environmental Review Tribunal (ERT), and the hearing is scheduled to begin February 1, 2011.
  • No Transfer Means No Transfer
    January 27, 2011
    In Frye v. Frye Estate, the Ontario Court of Appeal held that a bequest of shares was valid, notwithstanding that such a bequest was clearly contrary to the explicit terms of a unanimous shareholder agreement and letters patent. The decision (wrongly) emasculates broadly drafted share-transfer restrictions, reducing them to near meaningless effect. Originally published in the January 2010 issue of Canadian Lawyer.
  • Class Actions in 2010 and Anticipated Trends for 2011
    December 21, 2010
    In 2010, Canadian courts demonstrated an increasingly expansive and plaintiff-friendly approach to class actions. Given this trend, 2011 can be expected to have more developments in class actions before the courts. Although 2010 showed some bright spots for defendants, generally certification is becoming harder for defendants to avoid.
  • Reducing Risks of Directors and Officers in Securities Class Action Litigation: A Refresher
    December 16, 2010
    Recent developments in Canadian law have given rise to novel issues for officers and directors in the context of potential secondary market liability and other statutory sources of liability in a class actions context. This paper provides a refresher on the best practices to be employed to reduce officers' and directors' risk of liability in class action litigation. A previous version of this paper was presented at the Canadian Institute Securities Litigation and Enforcement Conference on October 19 and 20, 2010, at Toronto.
  • Bennett Jones Fall 2010 Economic Outlook
    Fall 2010
    The global economic recovery remained highly uneven in 2010. Growth in the emerging market economies (EMEs) of Asia and Latin America has exceeded our Spring outlook while the pace of activity in advanced economies, especially in the second half of 2010, has fallen short of what we expected in the spring.
  • Directors' Liability, Taxes and the Chancellor's Foot
    December 02, 2010
    The Tax Court of Canada and the Federal Court of Appeal have predominantly held that the standard of care required of directors to meet the due diligence defence test in Section 227.1(3) of the Income Tax Act (Canada) is subjective. Not only is the basis for these decisions questionable, but the resulting inconsistencies and uncertainties depart from a coherent system of rational law. Originally published in the September 2010 issue of Canadian Lawyer Magazine.
  • Amendments to Standards of Disclosure for Oil & Gas Activities
    November 30, 2010
    The Canadian Securities Administrators (CSA) have recently amended National Instrument 51-101 – Standards of Disclosure for Oil and Gas Activities (NI 51-101). The amendments clarify various provisions of NI 51-101, codify existing CSA staff guidance and practice and add certain requirements designed to enhance the reliability of disclosures concerning reserves and resources other than reserves.
  • Alberta Introduces Significant Legislative Amendments Concerning Carbon Capture and Storage
    November 15, 2010
    The Alberta government has placed heavy emphasis on projects to geologically sequester carbon dioxide in its strategy to control greenhouse gas emissions in the province. Consistent with this strategy, on November 1, 2010, the government introduced Bill 24, the Carbon Capture and Storage Statutes Amendment Act, 2010, into the legislature. If enacted, Bill 24 will address two areas of legal uncertainty affecting potential Carbon Capture and Storage projects.
  • Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council
    October 28, 2010
    The Supreme Court of Canada released its unanimous decision in Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43 providing guidance in three areas related to the issue of consultation with First Nation, and the role of regulatory tribunals in assessing the adequacy of such consultation.
  • Ontario Court Awards $455.7 Million Following a Common Issues Trial
    October 21, 2010
    On October 1, 2010, the Ontario Superior Court of Justice rendered a decision in the matter of Jeffrey and Rudd v. London Life Insurance et al. In this class action, the plaintiffs alleged that the acquisition of London Insurance Group by the Great-West Life Assurance Company involved a number of breaches of the Canadian Insurance Companies Act.
  • Pension Reform: Ontario's Bill 236 and Canada's Bill C-9 Are Now Law — Are You Ready?
    October 19, 2010
    After many years of political inaction, a number of jurisdictions have taken up the pension reform banner. Very recent changes affect employers sponsoring pension plans in Ontario and those operating within the federal jurisdiction.
  • Focus on Legal Aspects of Sustainability
    September 30, 2010
    As business moves to incorporate sustainability into a central position in its planning and operations, our early focus at Bennett Jones on the legal aspects of that concept offers significant advantages to our clients. Our leading positions in dealing with environmental management, climate change, health and safety, aboriginal issues and corporate governance and our deep understanding of employment, community involvement and related social issues enabled us to see the need to integrate those disciplines and use our legal analysis of them in assisting our clients to appropriately deploy sustainability concepts throughout their organizations.
  • Fresco v. CIBC: Divisional Court Adds to the Turbulence in Overtime Class Action
    September 15, 2010
    On September 10, 2010, the Divisional Court released its decision in Fresco v. Canadian Imperial Bank of Commerce. In a 2-1 split decision, the Divisional Court upheld the motion judge's decision not to certify the class action.  Fresco is the first in what is likely to be a trilogy of overtime class actions that will be decided by Ontario's appeal courts in the coming year. In Fulawka v. Bank of Nova Scotia and McCracken v. Canadian National Railway Company, class actions for unpaid overtime wages were certified. Both decisions are under appeal.
  • Competition Class Actions: A Year of Substantial Change
    September 09, 2010
    One year ago, plaintiffs' prospects of certifying complex, competition-related class actions in Canada seemed bleak. Indeed, some commentators asked whether competition class actions were dead in Canada. However, in the last 12 months a series of judicial decisions has clearly signalled that a plaintiff-friendly approach has been adopted at the certification stage, thereby making this type of case once again a growth area in Canadian class action litigation.
  • Enforcing Statutory Duties in Overtime Class Actions
    August 20, 2010
    In a series of recent high-profile cases, Ontario courts have been grappling with the issue of whether employees can use actions commenced under the Class Proceedings Act to enforce overtime claims under the Canada Labour Code. This week's decision in McCracken v. Canadian National Railway Company holds that statutory employment obligations are implied terms in an employee's employment contract, and therefore may be the subject of claims asserted in a class action.
  • The Potential Impact of the Proposed Canadian Securities Act
    August 20, 2010
    On May 26, 2010, the Government of Canada released the proposed Canadian Securities Act (CSA). To date, the discussion of the CSA primarily has focused on whether the legislation will be found to be constitutionally valid. Should the legislation be upheld, the important issue for market participants could be the potential impact of legislative change on the regulatory scheme.
  • The Reach of U.S. Securities Laws Continues to Narrow
    August 12, 2010
    In Morrison v. National Australia Bank Ltd., decided in June, the U.S. Supreme Court ended F-Cubed litigation. Sweeping aside decades of case law, the Supreme Court held that Section 10(b) of the Securities Exchange Act and SEC Rule 10b-5 did not allow foreign investors to sue foreign issuers in the U.S. to recover alleged damages suffered from purchases on foreign securities exchanges. Continuing this trend, the U.S. District Court for the Southern District of New York has confirmed that the Supreme Court's decision also bars F-Squared litigation: even American investors are unable to sue foreign issuers in the U.S. to recover alleged damages suffered from purchases on foreign securities exchanges.
  • Hostile Bids - You Can't Just Say No in BC
    July 30, 2010
    Directors contemplating their arsenal of takeover defences in Canada will want to read the attached full reasons of the BC Securities Commission, released yesterday, for cease trading the Lions Gate rights plan in April. That decision was upheld by the BC Court of Appeal a week later as not being “unreasonable”. The attached reasons expand on the summary reasons released in May by the majority of the panel. The written reasons of the third member of the panel have been promised but not yet released.
  • Ward v. Vancouver: Putting a Price on Charter Breaches
    July 29, 2010
    On July 23, 2010, the Supreme Court of Canada released its long-anticipated decision in Vancouver (City) v. Ward, 2010 SCC 27. In a unanimous decision, the Supreme Court confirmed that damages may be available to claimants who have suffered violations of their Charter rights. Recognizing that the authority on this issue is sparse, the Court comprehensively analyzed section 24(1) of the Charter and concluded that it allows for damages to be awarded for a Charter breach where it is appropriate and just to do so.
  • U.S. Supreme Court Rejects F-Cubed Litigation
    July 27, 2010
    A recent ruling by the Supreme Court of the United States has greatly reduced the risk of Canadian securities issuers being embroiled in class action lawsuits in the U.S. Now, in order for a class action to be commenced in the U.S. against a foreign securities issuer, a share transaction must have taken place within the U.S.
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