Vancouver Buildings

BC Takes Action to Protect Real Estate Sellers

Amendments to the BC Real Estate Services Regulation Target Unethical and Predatory Conduct by Licensees; Further Recommendations Forthcoming

“Government will not tolerate unethical or predatory conduct in the real estate market” – Premier Christy Clark

By Larry R. Sandrin and James Struthers

On May 10, 2016, BC Finance Minister Michael de Jong announced amendments to the Real Estate Services Regulation regarding the imposition of additional obligations on licensees (persons described in s 2 of the Real Estate Services Act) as part of a broader initiative by the Province to improve public confidence in the real estate services sector (the amendments are available on the BC Laws website). Licensees acting for buyers must include in any offer to purchase a clause that indicates the purchase contract will not be assigned without the written permission of the seller, and that any profits from an assignment of the contract must be returned to the seller. If any offer does not include these terms, licensees acting for a buyer are obligated to notify the seller of their absence. Licensees acting for a seller must inform the seller whether the contract may be assigned, any conditions on assignment and the seller’s right to profits from an assignment. These amendments are in force as of May 16, 2016.

There are no designated penalties for a breach of these new regulations at this time, but changes to monetary penalties under the Act and Regulations may be coming. Additional changes to rules and regulations governing licensee conduct, the administration of these rules and regulations and public access and engagement are expected to be released in early June. (more…)

Share on LinkedInTweet about this on TwitterShare on FacebookShare on Google+Email this to someone
Oil and Gas

Internal Investigations and Privilege: A Redux

By Scott H.D. Bower and Russell J. Kruger

An internal investigation into a workplace accident was privileged, and thus protected from disclosure, the Alberta Court of Queen’s Bench recently held in Alberta v Suncor Energy Inc, 2016 ABQB 264 [Suncor]. The Court found that notwithstanding an Alberta Occupational Health and Safety Act [OHSA] requirement to carry out an investigation and prepare a report, certain information and records created or collected during the investigation were protected by litigation and legal advice privilege. (more…)

Share on LinkedInTweet about this on TwitterShare on FacebookShare on Google+Email this to someone
Toronto Stock Exchange

Amendments to Dividend / Distribution Reinvestment Plans Regime

By Andrew N. Disipio and Ethan Schiff

On April 28, 2016, The Toronto Stock Exchange (the “TSX”) published proposed amendments (the “Amendments”) to introduce requirements regarding Dividend / Distribution Reinvestment Plans (the “DRIPs”) to Part VI of the TSX Company Manual (the “Manual”). The TSX published the Amendments for public comment for a 30 day period. Comments should be in writing and delivered by May 28, 2016. (more…)

Share on LinkedInTweet about this on TwitterShare on FacebookShare on Google+Email this to someone
Supreme Court of Canada

Trial Court’s Interpretation of a Contract Much Harder to Overturn, the Supreme Court of Canada Confirms

By Scott H.D. Bower and Russell J. Kruger

To overturn a trial court’s interpretation of a contract on appeal, it is not enough that the trial court was wrong, it must be really wrong, the Supreme Court of Canada recently affirmed in Heritage Capital Corp v Equitable Trust Co, 2016 SCC 19 [Heritage]. The Court confirmed that the standard of appellate review applicable to a lower court’s interpretation of a contract is palpable and overriding error, not merely correctness, absent an extricable error of law.

In an important 2014 ruling arising from an arbitrator’s decision, the Supreme Court of Canada held in Creston Moly Corp v Sattva Capital Corp, 2014 SCC 53 [Sattva] that the historical approach to contractual interpretation, where “the legal rights and obligations of the parties under a written contract was considered a question of law,” should be abandoned. Instead, contractual interpretation was recognized as involving “issues of mixed fact and law as it is an exercise in which the principles of contractual interpretation are applied to the words of the written contract, considered in light of the factual matrix.” Questions of mixed fact and law attract the palpable and overriding error standard of review rather than correctness. This means that an appeal court will only second-guess a decision from a fact-finder where the decision is unreasonable, or commits a palpable and overriding error, not merely because the appeal court would decide the case differently itself. Sattva also provided for the possibility of identifying “an extricable question of law”, attracting the correctness standard, such as “application of an incorrect principle, the failure to consider a required element of a legal test, or the failure to consider a relevant factor.” (more…)

Share on LinkedInTweet about this on TwitterShare on FacebookShare on Google+Email this to someone
Supreme Court of Canada

Supreme Court Sustains Protections for World Bank Information Sharing

By Matthew Kronby and Sabrina A. Bandali

On April 29, 2016, the Supreme Court of Canada ruled unanimously in World Bank Group v. Wallace that documents from World Bank Group investigations remain immune from document production requests that are part of domestic court proceedings, even if information related to those documents has been shared with and relied upon by domestic law enforcement agencies. While the issues in the World Bank case arose in the specific context of a challenge to a wiretap authorization, the SCC’s decision clarifies the inviolability of the archives of international organizations as well as immunity of their personnel from legal process, two important protections that shield cooperation and information-sharing activities with Canadian law enforcement in corruption investigations. (more…)

Share on LinkedInTweet about this on TwitterShare on FacebookShare on Google+Email this to someone
Agri-food

Proposed Tariff Elimination for Certain Agri-Food Ingredients

By Darrel Pearson and Kristen Holman

In Budget 2016: Growing the Middle Class, the Government of Canada announced its intention to eliminate customs duties on imports of certain food manufacturing ingredients, excluding supply-managed (TRQ) products. This decision is part of the government’s action plan to support investment and job creation in Canada’s agri-food manufacturing industry by making agri-food manufacturers more cost competitive, in both domestic and foreign markets. This represents an important opportunity for importers of food manufacturing ingredients to ensure they benefit from tariff elimination.

Given the sheer size and importance of Canada’s agri-food sector, this proposal will have a significant impact on numerous stakeholders. A 2015 report published by Agriculture and Agri-Food Canada noted that Canada’s food and beverage processing industry is the largest of all domestic manufacturing industries, accounting for the largest share (16.0 percent) of the total manufacturing sector’s GDP in 2013, as well as the largest share (16.7 percent) of jobs in the manufacturing sector (see Agriculture and Agri-Food Canada, An Overview of the Canadian Agriculture and Agri-Food System 2015). (more…)

Share on LinkedInTweet about this on TwitterShare on FacebookShare on Google+Email this to someone
Employment Agreements

Fixed-term Employment Agreements: Draft Them Carefully

By Sara Parchello and Talia Bregman

Employers often use fixed-term employment agreements to limit their future severance costs owed to employees. Although that may be an effective approach in theory, the Ontario Court of Appeal’s recent decision in Howard v. Benson Group Inc, 2016 ONCA 256, reminds employers that an improperly drafted fixed-term employment agreement can be a costly approach in practice. (more…)

Share on LinkedInTweet about this on TwitterShare on FacebookShare on Google+Email this to someone
Driving Seat

Federal Court of Appeal Clarifies Test for “De Facto Control”

By Matthew Peters

In McGillivray Restaurant Ltd. v. R., the Federal Court of Appeal (FCA) recently provided welcome news to the Canadian tax community concerning the appropriate legal test for determining whether a person has “de facto control” (control in fact) over a corporation for tax purposes. The FCA’s clarification in McGillivray should have the practical effect of providing a higher level of certainty and comfort to taxpayers seeking advice on this important and pervasive issue in a variety of circumstances. (more…)

Share on LinkedInTweet about this on TwitterShare on FacebookShare on Google+Email this to someone
Oil Facility

Grant of Summary Judgment to Gas Facility Operator Based On “Pay First, Dispute Later” Clause Upheld

By Mike Theroux, Laura M. Gill and Aaron F. Rankin

There was no error in granting partial summary judgment on more than $5 million dollars in gas facility invoices, the Alberta Court of Appeal held in SemCAMS ULC v Blaze Energy Ltd, 2016 ABCA 113, despite the gas producer’s objections that a trial was needed to determine the amounts owing. While the producer is free to pursue an audit of the disputed amounts and a counterclaim for any adjustments, it faces a current liability for the amounts invoiced. (more…)

Share on LinkedInTweet about this on TwitterShare on FacebookShare on Google+Email this to someone
Supreme Court of Canada

“All Aboriginal Peoples”: SCC Rules Non-Status Indians and Métis are “Indians” under the Constitution

By David Bursey, Shawn Munro, Mike Theroux and Laura Gill

Yesterday, the Supreme Court of Canada issued a unanimous decision in Daniels v Canada (Indian Affairs and Northern Development), 2016 SCC 12 declaring that non-status Indians and Métis are “Indians” under s 91(24) of the Constitution Act, 1867. The case has significant implications for non-status Indians and Métis people, reinforcing their rights to access federal programs and to negotiate for hunting, harvesting and land rights. While the case establishes clear federal jurisdiction, it also affirms that provincial jurisdiction may also apply if it does not impair the core federal power. (more…)

Share on LinkedInTweet about this on TwitterShare on FacebookShare on Google+Email this to someone