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Canada-China Investment Treaty To Come into Force October 1

By Matthew S. Kronby

Two years after signing a bilateral investment treaty (BIT) with China, Canada has now ratified it and announced that it will come into force on October 1. Canada has similar treaties, known domestically as foreign investment promotion and protection agreements (FIPPAs), with over two dozen other countries. China has more than 70 such treaties in force. Nevertheless, the Canada-China FIPPA aroused particular controversy on this side of the Pacific when it was signed, both because it became enmeshed in a concurrent debate over Chinese state-owned investment in Canada’s energy sector and because of fears –  wildly overblown – about a feature common to most modern BITs, the  investor-state dispute settlement mechanism. (more…)

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Ontario Legislature Clarifies Securities Limitation Period

By Jeffrey S. Leon and Jonathan G. Bell

Less than one month after the Supreme Court of Canada announced that it will hear appeals in a trilogy of Ontario securities class action cases that address how the three years limitation period under the Ontario Securities Act applicable to secondary market class actions should be applied, the Ontario Legislature has taken it upon itself to clarify the matter going forward. (more…)

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Are You Done Yet? Compensation for Impacts of Public Works in Alberta

By Cassia J. Prentice, Daron K. Naffin and Gregory A. Liakopoulos

During the recent resurfacing of Bow Trail there was a message posted on a pylon sign by an adjacent business owner that read “Bow Trail is not Rome. Please Complete” (see “Road Construction Delays Cause Headaches for Drivers, Businesses” on Global News). The business owners were obviously hopeful that the work would be concluded quickly so as to minimize the effect on their business.

Municipalities must have the ability to complete necessary public works. However, ongoing infrastructure improvements in municipalities across the province inevitably impact adjacent homes and business owners. These adjacent landowners sometimes go uncompensated where they are not fully informed of their rights to compensation if such public works result in a permanent reduction in property value. (more…)

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BROKEn Promises: 3 Signs your Tenant may be Going Bankrupt

By Alexis E. Teasdale and Gregory A. Liakopoulos

The bankruptcy of a tenant is disruptive and may be confusing to a landlord; however, arming yourself with knowledge of some warning signs of financial distress and an understanding of your basic rights will, along with your trusted legal advisor, help you be prepared in the unlucky event that your tenant goes bankrupt. (more…)

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Supreme Court Grants Leave to Appeal in Securities Class Actions

By Jeffrey S. Leon, Michael A. Eizenga, Ranjan K. Agarwal, Jonathan G. Bell, Preet K. Bell

The Supreme Court of Canada announced today that it will hear appeals in a trilogy of Ontario securities class action cases: Green v. CIBC, Silver v. IMAX and Celestica v. Millwright Regional Council of Ontario Pension Trust Fund.

All three of these cases address how the three year limitation period under the Ontario Securities Act applicable to secondary market class actions should be applied. In order to bring a secondary market class action under the Ontario Securities Act, a plaintiff must first obtain leave of the court and, pursuant to section 138.14, the action must be commenced within three years. In 2012, the Ontario Court of Appeal interpreted this limitation period to mean that plaintiffs must obtain leave from the court to commence the action within the three year period (Sharma v. Timminco). This decision was generally welcomed by defendants but attracted much concern among plaintiffs’ class action counsel. Earlier this year, in Green v. CIBC, a rare five judge panel of the Ontario Court of Appeal reversed its own decision in Timminco (with two companion decisions in Silver v. IMAX and Celestica v. Millwright). The Court of Appeal found that articulating an intention to seek leave to commence the secondary market claim under the Securities Act was sufficient to suspend the limitation period, even though leave had not yet been granted to commence such an action. (more…)

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Canada’s Economic Sanctions Against Ukraine and Russia Extended to Additional Individuals and Entities; Oil & Gas Technology Sanctions Expected Soon

By Milos Barutciski, Matthew Kronby, Laura Murray and Jessica Horwitz

On August 6, 2014, Canada amended the Special Economic Measures (Ukraine) Regulations and Special Economic Measures (Russia) Regulations to further expand the list of “designated persons”, both individuals and entities, with whom Canadians are prohibited from engaging in business and financial dealings.

The Prime Minister’s office also announced that the Canadian government is “committed to imposing the necessary regulations to enact export restrictions on technologies used in Russia’s oil exploration and extraction sector”. These restrictions are expected to follow soon, and likely will correspond closely with sanctions that were recently announced by the EU and the US, which focus on, in the words of the EU measures, “certain technologies suited to deep water oil exploration and production, arctic oil exploration and production or shale oil projects in Russia”. A list of the technologies targeted by the EU can be found in Annex II to EU Regulation 833/2014. (more…)

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Canada and the EU Complete Trade Treaty Negotiations

By Matthew Kronby and Milos Barutciski 

Canada and the European Union today announced that they have completed negotiation of their Comprehensive Economic and Trade Agreement (CETA). The announcement puts to rest extended speculation about whether a deal was still possible, speculation fuelled by the nearly ten months that has elapsed since the parties announced an “agreement-in-principle” last October.

The October political announcement suggested that only minor technical work remained. In fact, some significant elements of the CETA remained outstanding, including the all-important reservations that determine the extent of each side’s commitments on market access and national treatment for investment and services (especially at the sub-national and EU Member State levels) and the financial services text. Achieving buy-in from EU countries on certain market access issues, quota allocations for beef and pork among them, also proved more difficult than Canada had been led to believe by its Commission counterparts. Some of this may have reflected honest misjudgment, including of EU Member State sensitivities to the CETA creating possible “precedents” while the EU began negotiations on a trade deal (TTIP) with the United States. However, with today’s announcement, it can fairly be said that what remains really is technical work: the legal review, or “scrub”, to ensure the agreement is internally coherent and says what the negotiators intended it to say, and translation of the text into French and 21 other official EU languages. (more…)

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Update on Canada’s Economic Sanctions Against Ukraine and Russia

By Milos Barutciski, Matthew Kronby and Laura Murray

On July 24, 2014, Canada amended the Special Economic Measures (Ukraine) Regulations and Special Economic Measures (Russia) Regulations to expand the list of “designated persons” with whom Canadians are prohibited from engaging in business and financial dealings. The sanctions were also amended to prohibit new debt and equity financing transactions with designated entities in Russia. (more…)

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Six Considerations for Rent Arbitration Clauses in Commercial Leases

By Daniel T. Gallagher, QC, Gregory A. Liakopoulos and Alastair MacKinnon

When a commercial tenant exercises an option to renew a lease it is imperative that the landlord and tenant have effective mechanisms in place to determine the rent for the renewal term. Ideally both parties will agree on the new rental rate, but if a dispute arises there needs to be a framework to quickly resolve the disagreement. The following are six key considerations for landlords and tenants negotiating rent arbitration clauses in commercial leases. (more…)

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