ThoughtNetwork-IPTrends

The Top 5 Trends in Canadian Intellectual Property Law for 2015

By Dominique T. Hussey and Melissa M. Dimilta

Last year promised significant changes in Canadian IP law; some of which will be realized in 2015. As the first quarter draws to a close, this year’s trends in IP law are emerging. Canada’s international trade negotiations will have a major impact on trademark, copyright and patent law. The focus on the interaction between competition law and intellectual property settlement agreements is sharpening. Pharmaceutical litigation is entering a new, biological age. Drug prices, ever an issue in Canada, may face heightened scrutiny. We see the following as the top five emerging trends. (more…)

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Construction

No Stone Undisclosed: City of Vancouver and Developer Appeal New Public Disclosure Standards for Development Projects

By Larry R. Sandrin, Laura M. Gill and David Bowles

The City of Vancouver and Brenhill Developments Ltd. have appealed the January 27, 2014 decision of the BC Supreme Court in Community Association of New Yaletown v Vancouver (City), 2015 BCSC 117 (the Brenhill/New Yaletown decision). The appeal challenges a decision that imposed extensive new public disclosure requirements on the City and stopped Brenhill’s construction of a social housing project nearly nine months after it was approved by the City. (more…)

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Defending Enforcement Under CASL: Compliance with Informational Formalities

By J. Sébastien A. GittensRavi K. Parhar and Graeme S. Harrison

In 2014, the anti-spam provisions of Canada’s Anti-Spam Legislation (CASL) came into force, creating a wide array of compliance requirements for businesses. CASL prohibits a person from sending or causing or permitting to be sent to an electronic address a commercial electronic message unless (a) the message is exempt or (b) the message meets the formality requirements and the person receiving the message has consented to receiving it. While the CRTC has only publicly acknowledged one enforcement action under CASL as of February 26, 2015, this series of posts, “Defending Enforcement under CASL,” considers the foundations of a compliance defence to liability under CASL. (more…)

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Medical Marijuana

Four Takeaways from the CSA on the Public Disclosure of Medical Marijuana Companies

By Hugo M. Alves with Aaron E. Sonshine, Michael D. Lickver and Ronald W. Fichter

On February 23, 2015, the Canadian Securities Administrators (CSA) released Staff Notice 51-342 Staff Review of Issuers Entering Into Medical Marijuana Business Opportunities in which it was made clear that the CSA is not satisfied with the level of detail in the disclosure of public companies in the medical marijuana industry. Of the 62 companies reviewed, 40 percent raised “serious investor protection concerns” with their public disclosures. Here are four key takeaways from the CSA’s report in order to help companies understand the CSA’s concerns and make the right decisions about their public disclosure going forward. (more…)

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Private Jet

CRA Releases Important Transfer Pricing Guidance on Management Fees and Other Intra-Group Services

By Claire M.C. Kennedy

CRA recently released a new Transfer Pricing Memorandum (TPM-15) giving detailed guidance on CRA’s audit approach to management fees and other charges for intra-group services, including on allocation keys for indirect chargebacks and markups on costs. The document expands considerably upon brief guidance on this topic in CRA’s main Information Circular on Transfer Pricing, which dates back to 1999. The new TPM is therefore a useful roadmap for Canadian companies, large and small, that pay service fees to or receive fees from related non-resident entities. It is clear that CRA is expecting a more granular level of detail in documenting intra-group services, even routine ones, than is commonplace in many companies and may not be entirely practical. Taxpayers should carefully consider the level of documentation that currently exists in their organization and whether it needs to be upgraded. (more…)

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Canada and Ontario flags

If My Company Sponsors a DC Pension Plan, Will We Need to Participate in the ORPP?

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

We assumed the answer was no. Now it’s not so clear.

What is the ORPP?

The Ontario Retirement Pension Plan (ORPP) is an unprecedented, Ontario-only, mandatory provincial pension plan intended to provide pension coverage to working Ontarians without workplace pension plans. Starting in 2017, affected employees and employers in Ontario will be required to contribute an equal amount to the ORPP, capped at 1.9 percent each (3.8 percent combined), on an employee’s annual earnings up to $90,000. (more…)

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Defending Enforcement Under CASL: Establishing an Exemption is Applicable

By Martin P.J. Kratz, QC and Graeme S. Harrison

In 2014, the anti-spam provisions of Canada’s Anti-Spam Legislation (CASL) came into force, creating a wide array of compliance requirements for businesses. CASL prohibits a person from sending or causing or permitting to be sent to an electronic address a commercial electronic message unless (a) the message is exempt or (b) the message meets the formality requirements and the person receiving the message has consented to receiving it. While the CRTC has only publicly acknowledged one enforcement action under CASL as of February 23, 2015, this series of posts, “Defending Enforcement under CASL,” considers the foundations of a defence to liability under CASL, including the potential availability of exemptions.

CASL provides for a number of exemptions available to senders of commercial electronic messages (CEM) (see Defending Enforcement Under CASL: What is a Commercial Electronic Message?). For example, CASL does not apply to a CEM where the recipient is engaged in a commercial activity and the message consists solely of an inquiry or application related to that activity – in other words, many electronic communications intended to solicit leads in a business to business context may be exempt. Registered charities and political parties that send CEMs are also exempt in certain circumstances. Other important exemptions are the so called “B2B” and intra-organizational exemptions. CEMs to other employees, contractors or franchisee’s of another organization that your business has a business relationship with at the time the CEM was sent is exempt from CASL compliance, so long as the message concerns the affairs of the business or the recipient’s role, function or duties within or on behalf of the organization. Similarly, CEMs between individuals of the same organization that concern the business of the organization are also exempt. (more…)

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Libya

Canada Lays Corruption and Fraud Charges Against SNC-Lavalin

By Milos Barutciski, Matthew S. Kronby and Sabrina A. Bandali

On February 19, 2015, the RCMP laid corruption and fraud charges against the SNC-Lavalin Group Inc., its division SNC-Lavalin Construction Inc., and its subsidiary SNC-Lavalin International Inc. under section 3(1)(b) of the Corruption of Foreign Public Officials Act and paragraph 380(1)(a) of the Criminal Code.

After a string of charges laid against individuals relating to SNC-Lavalin projects in Libya, Bangladesh, and Montreal, these are the first Canadian charges to be laid against the company itself. SNC-Lavalin has stated that the new charges are “without merit” and that it “will vigorously defend itself and plead not guilty.” This suggests that unlike previous high-profile corruption cases against corporations (Niko Resources, Griffiths Energy) which resulted in guilty pleas and settlements, this matter may well proceed to trial and produce the first Canadian case law clarifying the liability of companies for engaging in corruption abroad. (The first Canadian judgment addressing the liability of individuals, R. v. Karigar, was issued in 2013.) (more…)

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Computer Keyboard

Defending Enforcement Under CASL: Establishing Consent

By Martin P.J. Kratz, QC and Ravi K. Parhar

In 2014, the anti-spam provisions of Canada’s Anti-Spam Legislation (CASL) came into force, creating a wide array of compliance requirements for businesses. On October 7, 2014, the CRTC announced the conclusion of its first investigation and enforcement action under CASL (see our blog post on the enforcement: CRTC Concludes First Enforcement Under Canada’s New Anti-Spam Legislation). While the CRTC exercised its discretion and declined to levy fines in that investigation, an investigation alone can generate significant costs and obligations for businesses. If your business is subject to investigation under CASL, there are several ways in which you may be able demonstrate compliance with the legislation and avoid the significant penalties associated with non-compliance. One such option is to prove that you have recipient consent.

CASL and its regulations obligate a person to obtain the consent of the recipient before sending a commercial electronic message (a CEM). The legislation recognizes both express and implied consent. (more…)

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Canadian Flag

Canada Imposes Additional Sanctions, Including Against Rosneft

By Milos Barutciski and Sabrina A. Bandali

On February 17, 2015, the Government of Canada announced a new round of sanctions against Russian and Ukrainian individuals and entities, including leading Russian oil firm NK Rosneft OAO.

In response to what Prime Minister Stephen Harper called the “escalated acts of aggression” in recent weeks by Russian-backed fighters in Eastern Ukraine, Canada amended the list of designated persons under the Special Economic Measures (Russia) Regulations and the Special Economic Measures (Ukraine) Regulations to impose travel bans against 37 Russian and Ukrainian individuals and economic sanctions against 17 Russian and Ukrainian entities. (more…)

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