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Supreme Court of Canada Grants Civil Plaintiffs Access to Competition Bureau Wiretaps

By Emrys Davis and Ranjan K. Agarwal

Canadian civil plaintiffs can now access wiretaps collected by authorities in the context of criminal investigations. The issue of access arose in the aftermath of the Competition Bureau’s octane investigation. Between 2004 and 2008, the Bureau intercepted and recorded 220,000 private communications among individuals suspected of fixing the price of retail gasoline. Charges, guilty pleas, convictions – and eventually a civil class action – followed. To advance their case, the class action plaintiffs requested disclosure of the Bureau’s wiretaps. The Quebec Superior Court ordered disclosure. The Supreme Court of Canada dismissed an appeal of that order in Friday’s decision Imperial Oil v Jacques, 2014 SCC 66. (more…)

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Reminder: Three New Statutory Leaves of Absence are Set to Take Effect in Ontario on October 29, 2014

By Michelle D. MacGillivray and Talia K. Bregman

On October 29, 2014, the following three new job-protected leaves of absence will come into effect under Ontario’s Employment Standards Act, 2000 (ESA):

  1. family caregiver leave: up to eight weeks of unpaid, job-protected leave to provide care or support to a family member with a serious medical condition.
  2. critically ill child care leave: up to 37 weeks of unpaid, job-protected leave to provide care to a critically ill child.
  3. crime-related child death or disappearance leave: up to 52 weeks of unpaid, job-protected leave for parents of a missing child and up to 104 weeks of unpaid, job-protected leave for parents of a child who has died due to a crime.

(more…)

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B.C. Supreme Court Upholds Recurring Short-Term Water Use Approvals

By Mike Theroux, Wally Braul and Laura Gill

The B.C. Supreme Court has recently clarified the interpretation of section 8 of the B.C. Water Act. Section 8 relates to the power of the B.C. Oil and Gas Commission (OGC) to grant approvals to oil and gas companies for the short-term use of surface water bodies such as lakes, rivers, streams, and storage dugouts. Many oil and gas companies rely on section 8 approvals in various exploration and development activities. (more…)

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CRTC Concludes First Enforcement Under Canada’s New Anti-Spam Legislation

By Graeme S. Harrison and Arnold Fridhandler

On October 7, 2014, the Canadian Radio-television and Telecommunications Commission (CRTC) announced the conclusion of its first investigation and enforcement action under Canada’s Anti-Spam Legislation (CASL) since coming into force on July 1, 2014.

A computer reseller based in Saskatchewan was placed under investigation by the CRTC after large numbers of complaints were made through the Spam Reporting Centre. The CRTC revealed that a server owned by the computer reseller sent millions of e-mail spam messages through Saskatchewan-based internet service provider, Access Communications. (more…)

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Court of Appeal Denies Certification in Another Misclassification Overtime Class Action

By Carl Cunningham, Ranjan K. Agarwal, Amanda C. McLachlan and Joseph N. Blinick

In the latest installment in a series of recent employment class actions, the Court of Appeal for Ontario has dismissed an appeal by class action plaintiffs in Brown v Canadian Imperial Bank of Commerce. The decision (upholding the lower court’s finding that a proposed misclassification overtime class action was not suitable for class treatment) confirms that for misclassification class actions to be viable in Ontario, class members will be required to demonstrate they have virtually identical roles and responsibilities. (more…)

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Ontario Divisional Court Upholds Controversial Award of the Ontario Human Rights Tribunal

By Ranjan K. Agarwal, Talia K. Bregman and Joseph N. Blinick

In Hamilton-Wentworth District School Board v Fair, the Ontario Divisional Court upheld two noteworthy decisions of the Ontario Human Rights Tribunal. In the Tribunal’s first decision, it found that the Hamilton-Wentworth District School Board discriminated against its employee, Sharon Fair, by failing to accommodate her disability-related needs. In its second decision, the Tribunal ordered that Fair be reinstated more than nine years after her employment was terminated and it also awarded her damages of over $400,000 — one of the largest damages awards made by the Tribunal to date.

These decisions serve as a reminder to Ontario employers about the need to canvass all possible alternatives when faced with a request for accommodation, including reinstatement, and to accommodate employees to the point of undue hardship. (more…)

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BC Supreme Court Stresses “Polluter Pays” in Awarding Damages for Remediation of Contaminated Site

By Mike Theroux, David W. Bursey and Laura M. Gill

The BC Supreme Court recently clarified several principles under the Environmental Management Act relating to liability for remediation costs for contaminated sites. In JI Properties Inc v PPG Architectural Coatings Canada Inc, 2014 BCSC 1619, the Court ordered a former landowner, who was also the historical polluter, to compensate the current owner for $4.75 million in reclamation costs incurred to remove contaminants caused by the former owner’s industrial activities. The case is significant not only due to the size of the award, but also because it sends a strong signal that the Court will interpret the Act in a manner which gives full effect to the “polluter pays” principle. (more…)

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New LCIA Arbitration Rules Come into Effect Today

By Vasilis F.L. Pappas and George M. Vlavianos

The London Court of International Arbitration (LCIA), one of the world’s leading international arbitration institutions, recently adopted a new set of arbitration rules, which will come into force on October 1, 2014. The new rules revise and update the previous version of the LCIA Arbitration Rules which have been in effect since 1998, and are intended to better align the rules with modern arbitral practice, and to promote a speedy, efficient, and fair arbitral process.

Although the previous version of the LCIA Arbitration Rules was popular, the practice of international arbitration has evolved since it came into force. International commercial disputes have become substantially more complex, and a view developed that the LCIA Arbitration Rules needed to be modernized. This perception became all the more pronounced when other well-known sets of arbitration rules were revised in recent years, including the UNCITRAL Arbitration Rules in 2010 and the ICC Arbitration Rules in 2012, among others. (more…)

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Judicial Review Application Preserved in Transfer Pricing Penalty Case

By Claire M.C. Kennedy

A recent Federal Court of Appeal (FCA) case illustrates how contentious transfer pricing disputes can be – even one a taxpayer believed had been resolved! It also represents a rare situation in which the taxpayer’s application for judicial review, alleging abuse on the part of the Minister of National Revenue, was not struck out as the Minister had requested.

(more…)

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SCC Weighs-In on Consumer Protection Remedies in Quebec Class Actions

By Christopher S. McKenna

On September 19, 2014, the Supreme Court of Canada released a trilogy of decisions examining the standing of representative plaintiffs and the availability of consumer protection legislation in the class action context. Though these decisions are particular to Québec, and its consumer protection legislation, they provide insight into how consumer protection legislation is broadening the scope of available remedies in class actions.

In Bank of Montreal v Marcotte, 2014 SCC 55, Amex Bank of Canada v Adams, 2014 SCC 56, and Marcotte v Federation des caisses du Desjardins du Quebec, 2014 SCC 57, the representative plaintiffs brought class actions on behalf of consumers who incurred conversion charges from banks as a result of making foreign currency purchases on their credit credits. Among other things, the representative plaintiffs: (a) alleged that the conversion charges imposed by the banks violated section 12 of Québec’s Consumer Protection Act (QCPA) because the charges were not properly disclosed by the banks; and (b) sought repayment of the conversion charges under section 272 (the remedies section) of the QCPA. (more…)

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