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Canada Imposes New Trade Restrictions on Russia’s Oil Exploration and Extraction Sector

by Jessica B. Horwitz and Matthew Kronby

On Friday, December 19, 2014, the Government of Canada announced amendments to the Special Economic Measures (Russia) Regulations to impose product-specific restrictions on the supply of certain goods to Russia’s oil sector, specifically with respect to deepwater, Arctic, and shale exploration and production. The prohibitions apply to any person or entity in Canada or by any Canadian person or entity outside of Canada. The amendments mark the first product-specific restrictions under Canada’s Russia sanctions regime and are similar to prohibitions being imposed by the United States and the European Union. (more…)

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Property Development

GST/HST Joint-Venture Elections and Nominee Corporations

By John (Jay) A. Winters and Douglas Chen

Joint-ventures (JVs) with nominee corporations or bare trustees that have been elected to account for the GST/HST of the JV should be aware of the period of CRA administrative tolerance expiring on January 1, 2015. This situation is often seen in the context of JVs for the development of real property.

Generally, a person involved in commercial activity will be required to register for GST/HST (i.e., become a registrant), and accordingly will collect GST/HST on its sales and claim input tax credits (ITCs) for GST/HST paid on its expenditures. However, for GST/HST purposes, a JV is not a “person” and cannot itself become a registrant. This means each co-venturer is responsible for becoming a registrant and accounting for its own portion of the GST/HST collected by the JV and for claiming its own portion of ITCs incurred by the JV. This can lead to administrative nightmares for JVs. (more…)

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GST/HST Closely Related Entities Election – New Filing Requirements

By John (Jay) A. Winters, Jesse I. Goldman and Douglas Chen

If you are planning on adding a closely related GST group election in the new year (CRA Form GST25), you will now need to file it with the CRA. Further, any pre-2015 elections will also have to be filed before the end of 2015. Given the new filing requirements, this may be a good time to review existing elections to make sure that they are still valid. (more…)

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United States Patent and Trademark Office Interim Guidance on Subject Matter Eligibility

By Robert Irani

The United States Patent and Trademark Office has published its 2014 Interim Eligibility Guidance of Subject Matter Eligibility for use by USPTO personnel in determining subject matter eligibility under 35 U.S.C. 101 of the United States Patent Act, which we wrote about here. The Guidance does not have the force and effect of law but rather, sets out the USPTO’s interpretation of the subject matter eligibility requirements in light of recent decisions by the United States Supreme Court and the United States Court of Appeals for the Federal Circuit.

The most significant parts of the Guidance includes a decision-making flowchart which asks:

  • Is the claim “directed to” one of the four statutory categories – a process, machine, manufacture and composition of matter?
  • Is the claim “directed to” a judicial exception – a law of nature, a natural phenomenon, and an abstract idea?
  • Does the claim recite additional elements that amount to “significantly more” than the judicial exception?


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Policy Documents

Alberta Pensions – What’s Next?

By Mariette P.H. Matos and Susan G. Seller

The recent overhaul of Alberta’s Employment Pension Plans Act (EPPA) and Employment Pension Plans Regulation (EPPR) effective September 1, 2014, has resulted in amendments being required to Alberta-registered pension plans, and to pension plans registered in jurisdictions other than Alberta with plan members employed in Alberta, to be filed by December 31, 2014. The Office of the Alberta Superintendent of Pensions (the Superintendent) recently announced that an extension of the filing deadline for plan amendments will be granted to March 31, 2015, upon written request.

Included among the changes to the EPPA and EPPR that took effect on September 1, 2014, are:

  • Immediate vesting of members’ benefits;
  • Pre-retirement death benefit of 100 percent of the commuted value of a member’s benefit for all service;
  • Changes to unlocking provisions, including the removal of the surviving spouse unlocking option under the 50-percent unlocking rule and under the shortened life expectancy unlocking provision;
  • Inclusion in the plan text document of any defined terms in the EPPA that apply to the plan; and
  • Forced portability for defined contribution (DC) plans, at the plan administrator’s option.

Other changes include changes to disclosure statements as of December 31, 2014:

  • New information to be included in plan summaries, as well as in annual, termination, retirement and death benefit statements; and
  • New required communications, including an annual statement to retired members and a statement notifying members of changes to contributions or benefits.


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Directors Need to Meet High Standard to Avoid Liability

By Alison J. Gray

The Tax Court of Canada again confirmed that directors of corporations will have a high burden to meet to establish a due diligence defence and avoid liability for unremitted source deductions.

In Maddin v The Queen, 2014 TCC 277, the taxpayer was a director of a corporation that failed to remit nearly $300,000 of employee source deductions. The only issue before the Court was whether the taxpayer exercised “due diligence” under subsection 227.1(3) of the Income Tax Act (Canada). (more…)

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Court Considers Unreasonably Withholding Consent under CAPL Operating Procedure in Precedent-Setting Decision

By Laura M. Gill and Grant N. Stapon, QC

In IFP Technologies (Canada) v Encana Midstream and Marketing, 2014 ABQB 470, the Court clarified for the first time the circumstances in which a party that waives its right of first refusal under Article 24 of the 1990 CAPL Operating Procedure may withhold its consent to a disposition of the operator’s interest.

The background facts leading to the case were that IFP purchased an unusual working interest in a heavy-oil field from Encana’s corporate predecessor. The field was being developed with conventional production, but may have been a candidate for enhanced production by Steam Assisted Gravity Drainage (SAGD) or other enhanced recovery methods. The agreements between the parties limited IFP’s working interest to thermal and enhanced production, with no benefit accruing to IFP for primary production. The agreements did not require Encana to undertake enhanced recovery operations. (more…)

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Oil Spill

Supreme Court to Clarify the Liability of Canadian Corporations for Acts of their Foreign Affiliates

By Alison J. Gray, Justin R. Lambert and David J. Wahl

The Supreme Court of Canada today heard argument in a case that will clarify whether a judgment obtained in a foreign country against a foreign corporate entity can be enforced in Canada against a Canadian affiliate of that foreign entity, even when the Canadian affiliate was not party to the foreign proceedings.

In July 2013 we wrote about Choc v Hudbay Minerals Inc., 2013 ONSC 1414, a decision that seemed to signal an increased willingness by Ontario courts to assume jurisdiction in the case of alleged wrongdoing by a foreign subsidiary of a Canadian corporation in a foreign country. (more…)

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International Anti-Corruption Day

By Jessica B. Horwitz

Today is International Anti-Corruption Day. This occasion is a good opportunity to think about whether your organization has sufficient systems, policies and controls in place to ensure ethical and responsible business practices both at home and abroad.

For companies active in international business and for organizations with international operations of any kind, the demand side of corruption – that is, interactions with government officials who seek bribes – presents the most acute problem. An organization’s first and best response to corruption is to establish internal compliance programs and mechanisms to ensure that employees, partners, and third-party contractors and agents are aware of and equipped to appropriately respond to bribe solicitations. (more…)

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Competition Act Tort Claims Still Viable: Fairhurst v Anglo American PLC

By William A. Bortolin and Emry Davis

Can indirect purchasers claim damages in tort for breaches of the Competition Act? This was one of the issues before the British Columbia Supreme Court in Fairhurst v Anglo American PLC, 2014 BCSC 2270. Madam Justice Brown considered the law on this issue to be contradictory, and held that the claims based in tort were not “bound to fail”. The claims were ultimately certified.

This outcome is somewhat surprising, given the British Columbia Court of Appeal’s decision in Wakelam v Wyeth Consumer Healthcare/Wyeth Soins de Sante Inc, 2014 BCCA 36, from earlier this year. The Court of Appeal held that the Competition Act comprehensively codifies the remedies available for a breach of the Act, and therefore that it is not possible to claim equitable remedies (such as restitution) based solely upon a breach of the Act. The Court also suggested that breaches of the Competition Act would be incapable of supporting claims based in tort (as distinct from claims based on one of statutory causes of action available under the Act). In Watson v Bank of American Corporation, 2014 BCSC 532, the B.C. Supreme Court followed Wakelam, and held that it was plain and obvious that tort claims based solely on breaches of the Competition Act would fail (at para. 190). (more…)

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