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Updates
A Trend for Retailers to Avoid – Copyright Infringement Lawsuits Over Clothing
October 05, 2015
Katy Perry received a lot of attention for the dress she wore to the Met Ball this year, and not all of it was welcome. A Brooklyn artist thought that the dress was an imitation of graffiti that he painted in Detroit, and filed a copyright infringement action to enforce his rights. For any retailer, being named as a defendant in a copyright lawsuit is an unwelcome and costly distraction. There are a number of steps that can be taken to minimize both the risk of litigation and financial exposure.
Simplified Rights Offering Rules Announced By Canadian Securities Administrators
September 30, 2015
The Canadian Securities Administrators (CSA) have announced that a revised rights offering regime for reporting issuers will come into force on December 8, 2015 (the New Rules). The New Rules will benefit reporting issuers seeking to raise capital from existing securityholders.
TSX Expands Exemptions Available to Interlisted Issuers
September 30, 2015
On September 10, 2015, the Toronto Stock Exchange (TSX) published a Notice of Amendments to the TSX's Company Manual. The Amendments modify, expand and formalize certain exemptions available to issuers listed on the TSX which are also listed in another market.
Avoiding the Fire Sale: Protecting Your Security Interest Against Multiple Creditor Claims
September 15, 2015
The failure to perfect a security interest could result in losing property rights altogether in receivership proceedings despite being the owner of the property. A very recent example of this is the case of Wells Fargo Foothill Canada ULC v Big Eagle Hydro-Vac Inc., 2015 ABQB 546.
Significant Amendments Made to Bermuda's Partnership Legislation
September 08, 2015
Bermuda is widely perceived as a blue chip offshore financial centre (not just in insurance and mutual funds) and continues to introduce new or amend existing legislation to attract more investors to use the jurisdiction.
Cooperative Capital Markets System Publishes Revised Draft Legislation and Draft Regulations
September 01, 2015
On August 25, 2015, the participating jurisdictions of the proposed Cooperative Capital Markets System (the Cooperative System) published for comment a revised consultation draft of the uniform provincial/territorial Capital Markets Act (CMA) and draft initial regulations. The comment period is open until December 23, 2015. Additional draft initial regulations will be published for comment in the coming months, including a harmonized set of prospectus exemptions and a fee regulation.
TSX Provides Guidance to Emerging Market Issuers
August 18, 2015
In recent years, emerging market issuers have faced greater scrutiny by Canadian regulators as a result of questions and concerns about issuers with significant business operations in emerging markets (emerging market issuers). In 2011, the Ontario Securities Commission (OSC) commenced a targeted review of certain emerging market issuers listed on Canadian exchanges and published OSC Staff Notice 51-719 Emerging Markets Issuer Review outlining the results of its review and recommendations on March 20, 2012. The OSC subsequently published OSC Staff Notice 51-720 Issuers Guide for Companies Operating in Emerging Markets on November 9, 2012, to assist emerging market issuers and their directors and officers with their governance and disclosure practises.
Breathing Room: The Alberta Court of Appeal Addresses the New Limitation Period for Third-Party Claims
August 13, 2015
The limitation period for a defendant seeking contribution from a third party has changed. In last month's Alberta Court of Appeal decision of Whitecourt Power Limited Partnership v Elliott Turbomachinery Canada Inc., 2015 ABCA 252 (Whitecourt Power), the Court interpreted a recent amendment to the Limitations Act in respect of third party claims.
E-signatures – Do They Change Ontario Real Estate Deals?
July 09, 2015
Over the last 20 years, since the introduction of the electronic land registry system, real estate in Ontario has slowly been making its way into the electronic age. On July 1st, 2015 another step was taken. All real estate documentation may now exist and be signed electronically as the result of an amendment to Ontario's Electronic Commerce Act, 2000. The fundamentals of real estate transactions will not change, but parties will now be able to sign documents electronically. This may be as simple as copying or scanning an "original ink" signature or it may involve electronic signature technology that provides various security features to ensure that the signature was attached to a document by the proper party. There are many providers of electronic signature systems, and many different systems available on the market. Parties to a real estate transaction may need to adjust their document management processes to ensure their electronic documents and signatures will be considered authentic and reliable by others. Even with the amendment to the Act, parties are not required to deliver or accept electronic signatures unless they agree to do so, especially with public bodies. Paper documents with ink signatures continue to be equally acceptable. As with physical documents, care must be taken to ensure proper execution of electronic documents, that all parties are signing a copy of the "same document," and that no changes are made to the document after execution.
Canadian Government Overhauls the Integrity Regime for Suppliers
July 06, 2015
On July 3, the Government of Canada announced a new Integrity Regime to replace the previous rules for debarment (disqualification) from public procurement. The new Regime, which is effective immediately, responds to more than a year of steady criticism of the previous Integrity Framework first established in 2010 by Public Works and Government Services Canada (PWGSC), the principal procuring arm of the Canadian federal government. That criticism, from business, legal and anti-corruption organizations, argued that the Integrity Framework had become so inflexible, punitive and far-reaching that it would be counterproductive to its objectives, namely to deter criminal misconduct and protect the integrity of the public procurement process. Commentators argued that the actual effect of the old Integrity Framework was to make it difficult for the government to find "clean" suppliers and to discourage companies from acknowledging and remediating wrongdoing.
Alberta's NDP Government's Flagship Bill Bans Corporate and Union Donations to Political Parties in Alberta
July 02, 2015
On June 23, 2015, the Alberta legislature unanimously passed the first bill of Alberta's new NDP government. Bill 1, An Act to Renew Democracy in Alberta passed in third reading with the unanimous support of all parties, including the Wildrose Alliance and the Progressive Conservatives. Bill 1 will ban donations to political parties from corporations, trade unions and employee organizations, as well as persons not normally resident in Alberta retroactively to June 15, 2015.
Substantial Amendments to the Condominium Act will impact Condominium Developers and Corporations
June 09, 2015
The Province of Ontario recently introduced Bill 106, Protecting Condominium Owners Act, 2015, to amend the Condominium Act, 1998, largely in response to the immense growth and change in the condominium sector in Ontario in recent years. If passed in its present form, Bill 106 would introduce substantial amendments to the Condominium Act (together with corresponding amendments to ancillary legislation, such as the Land Titles Act, the Ontario New Home Warranties Plan Act, the Planning Act, and the Building Code Act, 1992).
Alberta's NDP Government and Potential Labour and Employment Policy Changes
June 08, 2015
On May 5, 2015, Rachel Notley and her New Democratic Party (NDP) were elected to a majority provincial government in Alberta. This is the first change of the governing political party since the 1971 election. Changes to policy and legislation are widely expected as a result of this significant political shift.
Bennett Jones Spring 2015 Economic Outlook
June 03, 2015
This spring Outlook is structured in three sections. The first section sets out our view of the economic outlook commencing with a very short summary of recent world economy dynamics, followed by a review of the outlook for global growth and Canadian growth for 2015 to 2017. The second section contains an analysis of the factors which undoubtedly will lead to a slower growth of Canadian incomes over the medium term, 2015 to 2024. The third section analyses likely global trade developments and their implications for Canada. Section four contains a summary and conclusions.
Growth in Real Household Income in Canada: 1984-2024
June 03, 2015
Canadians have just entered a decade during which their real disposable income will tend to grow at a much slower pace than in the past. Since 2007, Canadian households have pretty well maintained the same average pace of growth in their real disposable income (per capita) as in the preceding quarter of a century, in spite of a recession and a sluggish recovery. This is set to change in the next decade as adverse demographics will depress real income growth per capita. There is little likelihood that faster productivity growth, increased labour force participation or gains in the terms of trade provide more than a very partial offset to adverse demographics. This means that on average the purchasing power (and saving power) of Canadian households is set to progress much more slowly than in the past. In such a context of slow growth in average household income, issues with respect to income distribution among households are likely to become more acute.
Getting a Seat at the Table: Proxy Access is Coming to Canada
June 02, 2015
The topic of proxy access, or the ability of shareholders to nominate directors to the board, has again come to the fore of the Canadian corporate governance debate. The Canadian Coalition for Good Governance (CCGG), an organization whose members include pension funds, mutual funds and other money managers, recently proposed amendments to the Canada Business Corporations Act (CBCA) to strengthen the ability of shareholders to nominate directors of federally incorporated Canadian companies. This proposal comes on the heels of increased U.S. proxy access activity arising from the New York City Comptroller's Boardroom Accountability Project, a campaign to give shareholders more say in how U.S. corporate boards are elected.
Canada's Resource Revenue Transparency Rules Now in Force
June 01, 2015
Canada's new Extractive Sector Transparency Measures Act was proclaimed in force today, in keeping with the federal Government's committed timeline. The Act imposes mandatory reporting requirements for each entity engaged in the "commercial development of oil, gas or minerals" (exploration, extraction, or having permits to do so) in Canada or elsewhere or that controls an entity that is so engaged. In keeping with global "publish what you pay" efforts to fight against corruption in the extractive sector, the Act is a significant step in Canada's commitment to establish mandatory reporting standards for the extractive sector "with a view to enhancing transparency on the payments they make to governments".
A Little Less Murky: The Court of Appeal Clarifies the Line Between Oppression and Derivative Actions
May 29, 2015
On May 26, 2015, the Court of Appeal for Ontario released its decision in Rea et al v Wildeboer, clarifying the distinct role of derivative actions under the Ontario Business Corporations Act. The role is so distinct that the Court upheld a decision to strike a statement of claim as being plain and obvious to fail because it was a derivative action dressed up as an oppression action.
More Provinces Crowd into Crowdfunding, but Not Yet Ontario or Alberta
May 25, 2015
On May 14, 2015, the securities regulators of British Columbia, Saskatchewan, Manitoba, Québec, New Brunswick and Nova Scotia (the Crowdfunding Jurisdictions) announced that they have implemented, or expect to implement, exemptions that will allow Canadian start-ups and early-stage companies to raise capital through crowdfunding. The Ontario Securities Commission (OSC) expects to announce its own crowdfunding rules in the Fall of 2015.
The OSC Introduces Amendments to the Voluntary Delisting Rules in the TSX Company Manual
May 22, 2015
An issuer seeking to voluntarily delist its securities from the Toronto Stock Exchange (TSX) is now faced with new rules aimed at providing protection to its security holders, which may require security holder approval to proceed with the delisting. On April 30, 2015, the Ontario Securities Commission announced that amendments by the TSX to section 720 of the TSX Company Manual had been approved and became effective that day. These amendments were originally published for comment in a request for comments on January 22, 2015.
Important Restrictions Placed on use of CBCA for Debt Restructurings
May 21, 2015
In a recent unreported decision denying approval of a plan of arrangement under the Canada Business Corporations Act (CBCA)
proposed by Connacher Oil and Gas Limited, Justice C.M. Jones of the
Alberta Court of Queen's Bench considered the solvency test that
corporations must meet in order to obtain a final order approving a plan
of arrangement under the CBCA. Prior to Justice Jones'
decision, courts had not considered the issue of whether, in order to
grant a final order approving a CBCA arrangement, the court first needed
to be satisfied that the entity emerging from the CBCA proceedings
would not be insolvent. Reprinted in Volume 30, Number 2 of National Creditor Debtor Review by LexisNexis Canada Inc.
Expedited Examination Options for Patent Applications Filed in the United States
April 30, 2015
In the United States, patents are granted and issued through the United States Patent and Trademark Office (USPTO). Each patent application received by the USPTO is examined by a United States patent examiner in the order it is received. How soon the examiner reviews the application can vary greatly depending upon the complexity and technological area of an invention. The typical pendency of a patent application can be between two and five years.
In certain situations, a patent applicant may require or want a more expeditious disposition by the USPTO. Presently, the USPTO offers multiple initiatives aimed at expediting examination of patent applications filed in the United States.
Bennett Jones