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Updates
The Creation of the Canadian Energy Regulator
March 01, 2018
This article supplements our multi-part series on changes to Canada’s regulatory regime governing project development and operation in Canada.
This post summarizes the proposal to establish the Canadian Energy Regulator (Regulator) as introduced by Bill C-69, An Act to enact the Impact Assessment Act and the Canadian Energy Regulator Act, to amend the Navigation Protection Act and to make consequential amendments to other Acts (Bill C-69). Bill C-69 proposes the repeal of the existing National Energy Board Act (NEB Act) and the enactment of the Canadian Energy Regulator Act (CERA).
The United States Supreme Court Narrows Whistleblower Protections Under Dodd-Frank
February 26, 2018
The Supreme Court of the United States has refused to broaden protections for employee-whistleblowers under the 2010 Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act). In Digital Realty Trust Inc v. Somers, a decision with potentially far-reaching consequences, the Court held that the anti-retaliatory provisions of the Dodd-Frank Act apply only where a whistleblower reports directly to the United States Securities and Exchange Commission (SEC).
Sea Change: The Canadian Navigable Waters Act
February 22, 2018
This article is Part III of a series that discusses the federal government’s proposed changes to Canada’s environmental regulatory regime governing project development and operation in Canada.
This post summarizes the changes to the Navigation Protection Act (NPA) as introduced by Bill C-69, An Act to enact the Impact Assessment Act and the Canadian Energy Regulator Act, to amend the Navigation Protection Act and to make consequential amendments to other Acts.
Reshaping Canada’s Project Assessment Regime—Bill 69’s Ambitious Blueprint
February 20, 2018
This article is Part II of a series that discusses the federal government’s proposed changes to Canada’s environmental regulatory regime governing project development and operation in Canada.
In this article, we review the changes to Canada's project assessment regime proposed under Bill 69, An Act to enact the Impact Assessment Act and the Canadian Energy Regulator Act, to amend the Navigation Protection Act and to make consequential amendments to other Acts.
Hold the Legalese! Ontario Has a New Standard Residential Lease
February 14, 2018
Starting April 30, 2018, landlords and tenants entering into private residential leases must use Ontario’s new standard form of lease. The standard form is intended to simplify the rental agreement process in Ontario. It is written in easy-to-understand language and sets out the basic terms of a lease—including the amount of rent and how it can be increased, the sorts of lawful conditions a landlord can impose upon a tenancy, and some of the grounds on which the lease can be terminated by either party. The standard form contemplates an attachment for additional terms that address specific issues, as long as the terms do not contravene the Residential Tenancies Act, 2006.
British Columbia Supreme Court Orders First Nation to Disclose Impact Benefit Agreements
February 09, 2018
The recent decision by the Supreme Court of British Columbia (BCSC) in Yahey v British Columbia (2018 BCSC 123, 25 January 2018) offers interesting insight into the circumstances in which benefit sharing agreements and accommodation payments might be disclosed. The issue of transparency around payments to indigenous groups by project developers is drawing increasing attention in litigation like the Yahey case and in regulatory initiatives like the federal Extractive Sector Transparency Measures Act.
Federal Review of Environmental and Regulatory Processes Underway
February 09, 2018
On February 6, 2018, the Federal Government introduced amendments to the Fisheries Act aimed at enhancing protection to fish and fish habitat. The proposed amendments form part of a system-wide review of Canada's environmental and regulatory processes, which will also include amendments to the Navigation Protection Act, and the introduction of the Impacts Assessment Act and the Canadian Energy Regulator Act. Combined, these legislative amendments will have important implications for industry and project developers.
This article is Part I of a series that will deal with the regulatory changes proposed under Canada's environmental and regulatory processes review.
2018 ISS and Glass Lewis Updates to Canadian Proxy Voting Guidelines
January 24, 2018
Institutional Shareholder Services and Glass, Lewis & Co have both released their updates to their respective Canadian proxy voting guidelines for the upcoming 2018 proxy season. The ISS updates apply to shareholder meetings of publicly traded Canadian companies occurring on or after February 1, 2018, while Glass Lewis updates apply to meetings that are held on or after January 1, 2018.
Dramatic Revision of the Alberta Occupational Health and Safety Act
December 06, 2017
Bill 30: An Act to Protect the Health and Well-being of Working Albertans (the New Act), received its first reading in the Legislative Assembly of Alberta on November 27, 2017. If enacted in its current form, the New Act will materially alter Alberta's Occupational Health and Safety Act (the Current Act) and expand the nature of the health and safety obligations owed by employers and businesses in Alberta. The New Act states that, subject to certain exempted provisions, it will come into force on June 1, 2018.
Bennett Jones Fall 2017 Economic Outlook
November 23, 2017
After a marked slowdown in 2016, the global economy is experiencing robust, synchronized growth in 2017, which exceeds earlier expectations and should continue in the short term. Notwithstanding this improved outlook, uncertainty about future economic policy and geopolitical developments remains very significant, if not even greater than before. Moreover, financial vulnerabilities, population aging, and weak productivity growth continue to weigh on prospects going into the medium term.
Corporate Social Responsibility and the Rana Plaza Class Action
October 06, 2017
On July 5, 2017, the Ontario Superior Court of Justice released a 129-page decision in the Rana Plaza class action (Das v George Weston Limited), a proposed class action brought in Ontario on behalf of Bangladeshis injured in the collapse of the Rana Plaza building in Dhaka in 2013 and their families. 2520 were injured and 1130 died in the collapse.
Canadian Securities Administrators Provide Guidance on the Review of Material Conflict of Interest Transactions
August 18, 2017
Transactions between related parties may create material conflicts of interest between an issuer and its directors, officers and related parties. In particular, material conflicts of interest may arise in the context of insider bids, issuer bids, business combinations and related party transactions. Multilateral Instrument 61-101 Protection of Minority Security Holders in Special Transactions (MI 61-101) was adopted in Alberta, Manitoba and New Brunswick on July 31, 2017, and prescribes procedural safeguards intended to mitigate the risks to minority security holders in material conflict of interest transactions. MI 61-101 has been in effect in Ontario and Québec since February 1, 2008, when it superseded Rule 61-501 in Ontario and Regulation Q-27 in Quebec.
Now You See It, Now You Don't: SCC Upholds Worldwide Injunction That Alters Google Search Results
July 12, 2017
The Supreme Court of Canada has upheld a novel injunction order against Google, requiring it to remove certain websites from worldwide search results. For litigants in Canadian courts, Google v. Equustek enlarges both the available pre-trial remedies, and the choice of who may be sued, to protect intellectual property rights—and perhaps other interests as well.
Bennett Jones Spring 2017 Economic Outlook
June 01, 2017
This Spring 2017 Outlook has three sections. In Section I we review the broad cyclical, structural and policy factors that are expected to shape growth to the end of the decade, particularly in the advanced economies, and present our base outlook with a focus, as usual, on the United States and Canada. In Section II we review the issues surrounding trade policy developments in the United States and elsewhere and the implications for Canadian governments and businesses. Finally, in Section III we examine the risks to the economic outlook posed by other uncertain developments and outline the related possible impact on Canadian monetary, fiscal and structural policies.
Proposed Oil Tanker Moratorium Act—Defining Canada's Pacific Gateway
May 23, 2017
On 12 May 2017, the Government of Canada introduced Bill C-48, the proposed Oil Tanker Moratorium Act, in Parliament. This initiative follows up on the launch of the national Oceans Protection Plan in November 2016, and fulfils the Prime Minister’s commitment to formalize a crude oil tanker moratorium on British Columbia’s north coast. The broader plan aims to "improve marine safety and responsible shipping; protect Canada’s marine environment; and create new partnerships with Indigenous and coastal communities".
Equity Kickers and the Criminal Rate of Interest
May 08, 2017
Entering into a loan transaction that also has an equity component, such as the issuance of shares or warrants, has previously given rise to some concern that the loan could ultimately run afoul of the 60 percent criminal rate of interest. While this has widely been thought to be contrary to the intended purpose of the criminal interest provision (preventing loan-sharking), there has still been a risk that equity could be captured and valued as interest due to the broad definition and judicial interpretation of "interest" in that provision. However, that risk has been diminished by a decision of the Ontario Superior Court that was recently upheld by the Ontario Court of Appeal.
Court of Appeal Permits Union Certification Application in Face of Insolvency Stay of Proceedings
May 03, 2017
The Ontario Court of Appeal recently released a decision allowing a certification application by a union to proceed in the face of a receivership of the employer. The decision garnered a strong dissent from Justice Lauwers, suggesting that the decision of the majority would “effect a sea change in insolvency law.”
Due Diligence Defence Deemed Available for Issuance of Securities in Breach of Securities Laws
April 20, 2017
The B.C. Securities Commission's (the Commission) decision in Re SunCentro (2017 BCSECCOM 58) provides rare guidance on the availability of a due diligence defence to parties that have illegally distributed securities. The Commission held that a due diligence defence was available to an issuer and certain of its directors, officers and promoters for the improper use of the "Family, Friends and Business Associates" prospectus exemption.
Highly Confidential Data—A Cybersecurity Risk for Cannabis Related Businesses
April 12, 2017
Cybersecurity is a significant business risk for any organization that collects personal data. The greater the amount of personal data collected by an organization, the greater the risk that it will be targeted by cybercriminals. It is now widely accepted that it is not a matter of if there will be an attack but rather when an attack will occur. Cyberattacks are occurring more frequently, and loss or exposure of sensitive information is on the rise. Licensed producers of cannabis and other cannabis related businesses (collectively, CRBs) face increased risks associated with data breaches given the highly confidential nature and large volume of data collected from their customers.
2017 Federal Budget: Update for Employers
April 06, 2017
On March 22, the 2017 federal budget, Building a Strong Middle Class Through Innovation, was released. Among its myriad proposals, several anticipated changes related to families and leaves will affect employers, including amendments to the Employment Insurance Act and the Canada Labour Code. While the changes to the Canada Labour Code will be limited to federally regulated employers, all employers may be affected by changes to the Employment Insurance Act.
Budget 2017: Changes to Canadian Exploration Expense and Flow-Through Shares
March 24, 2017
Canadian exploration expenses (CEE) are certain types of expenses incurred by oil and gas, mining and renewable energy corporations. CEE is 100 percent deductible in the year the expense are incurred. Certain types of CEE also qualify for renunciation to investors under the flow-through share rules contained in the Act. With the exception of expenses related to the acquisition of Canadian resource property (which generally would be Canadian oil and gas property expense), most other oil and gas related expenses (other than tangible costs) qualify as Canadian development expenses (CDE). CDE is deductible at 30 percent on a declining balance basis. CDE can also be renounced under the flow-through share rules, but because of the reduced rate of deduction, is significantly less desirable for investors.
Federal Court Cracks Down on Intentional Infringement with $1 Million Punitive Damages Awards
March 08, 2017
It's been a costly week for intentional infringers of intellectual property (IP) rights. In two separate decisions, the Federal Court of Canada has awarded $1 million in punitive damages. These are among the highest punitive damages awards ever made in Canadian IP cases, and send a signal to both counterfeiters and sophisticated businesses that deliberate infringement can have significant monetary consequences.
When Can Judicial Review of a Tribunal's Decision Include a Tribunal's Other Decisions?
February 28, 2017
When can a court review a tribunal's decisions, other than the decision under review, in determining whether the decision should be subject to a remedy on judicial review? This question arises from the recent Supreme Court of Canada decision on the standard of review of a tribunal's decision.
Cybersecurity: 2017 Report & 2016 Reflections
February 2017
In 2016, cybersecurity continued to grow as a primary business risk for companies worldwide. Data breaches continued to escalate both in number and magnitude and the landscape of legal and regulatory liability evolved and expanded. In this report, the Bennett Jones Cybersecurity team analyses the key events in 2016 with a view to those issues that should be front and centre for companies and their directors in 2017.
New Coordinated Rules Relating to the Clearing of Over-the-Counter Derivatives in Canada
January 23, 2017
On January 19, 2017, the securities regulators in each of the provinces and territories of Canada published a notice that they have finalized two new derivatives rules as part of their ongoing G20 commitment to regulate over-the-counter derivatives in Canada.
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