Trans Mountain Expansion Project: Burnaby’s Latest Bid for Jurisdiction Unsuccessful

By Laura Gill, Mike Theroux and Aaron Rankin

The City of Burnaby’s latest effort to assert jurisdiction over work performed in Burnaby in connection with the Trans Mountain Expansion Project was recently dismissed for procedural and constitutional reasons in Burnaby (City) v Trans Mountain Pipeline ULC, 2015 BCSC 2140. This post provides an update on the litigation, which we have previously summarized – all of it arising from the City’s enforcement of its bylaws in a manner that impeded work that the National Energy Board (NEB) had mandated Trans Mountain Pipeline ULC to do. (more…)

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Vapourizer Ban Goes Up in (Medical Marijuana) Smoke?

By Hugo M. Alves, Michael D. Lickver, and Vladimir Klacar

On November 13, 2015, the Ontario Government released its proposed regulations (the E-Cig Regs) under the Electronic Cigarette Act (the E-Cig Act and, together with the E-Cig Regs, the E-Cig Legislation) governing the promotion, sale and use of electronic cigarettes in Ontario. The current proposed form of the E-Cig Legislation contains broad restriction on the sale and use of electronic cigarettes, but provides certain exemptions from those restrictions for medical marijuana patients.

If brought into force in its current form, the E-Cig Legislation will be Ontario’s first piece of legislation that contains an express exemption for the benefit of medical marijuana patients. The announcement of the E-Cig Regs was understandably met with wide-spread applause from the medical marijuana community and a degree of concern/confusion from other community stakeholders who are unsure how the E-Cig Regs will impact them. In response to such concern and confusion, the Ontario Government has announced that it will revisit the exemption for medical marijuana patients created by the E-Cig Regs prior to the E-Cig Legislation coming into force. This announcement has left medical marijuana patients and advocates wondering what is driving the Ontario Government’s hesitation and what the future holds for the medical marijuana exemptions under the E-Cig Regs. (more…)

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Ontario Court Follows Juliar and Allows Rectification of a Series of Transactions

By Alison J. Gray

Given the Supreme Court’s recent granting of leave to appeal in the Jean Coutu case, which I blogged about earlier (Supreme Court of Canada to Hear Tax Rectification Case), the Ontario Court of Justice’s decision to follow Juliar v Canada (1999), 46 O.R. (3d) 104 (Ont. S.C.J.); aff’d (2000), 50 O.R. (3d) 728 (CA), and grant rectification in Canada Life v Attorney General of Canada, 2015 ONSC 281, is an interesting one. This case, along with the recent decision in Fairmont Hotels Inc. v A.G. Canada, 2014 ONSC 7302 (SCJ); aff’d 2015 ONCA 441, show that Juliar is still good law in Ontario, despite the tendency of other Canadian courts to now read Juliar more restrictively. (more…)

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Unsubscribe Problems Nets Telecommunications Provider Under Anti-spam Law

By Martin P.J. Kratz

November 20, 2015 the CRTC announced that Rogers Media Inc had paid $200,000 as part of an undertaking to resolve alleged violations of Canada’s anti-spam legislation (CASL).

It was alleged that between the coming into force of CASL, in July 2014, and through July 2015, Rogers sent commercial emails containing an unsubscribe mechanism that could not be readily performed by the recipient or did not function properly. As well it was alleged that the address to which unsubscribe mechanisms were sent was not maintained for the minimum required 60 days following the sending of the message. Lastly, it was also alleged that Rogers did not honour requests of some subscribers to unsubscribe from future commercial messages with 10 business days. (more…)

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Supreme Court of Canada to Hear Tax Rectification Case

By Alison J. Gray

On November 19, 2015, the Supreme Court of Canada granted leave to appeal in Canada (A.G.) v. Groupe Jean Coutu (PJC) inc., 2015 QCCA 838, which addresses the question of when rectification will be granted in the tax context.

Le Groupe Jean Coutu (PJC) inc. acquired an American pharmacy chain in 2004. It faced a problem with the accounting presentation of this acquisition due to fluctuations in the exchange rate. In February 2005, in an attempt to find a tax-neutral solution to the problem, it carried out a series of transactions, the net effect of which was to transform the net U.S. investment into a net debt. The anticipated and agreed to tax consequences of the transactions were set out in the documentation formalizing the transactions. (more…)

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Canadian International Trade Tribunal Declares CBSA Abusive and Directs CBSA to Follow its Decisions

By Darrel H. Pearson and George W.H. Reid

On September 18, 2015, the Canadian International Trade Tribunal (CITT) released three decisions concurrently[1] (collectively referred to as the Bri-Chem trilogy) that instruct the Canada Border Services Agency (CBSA) to apply past CITT decisions interpreting the Customs Act to resolve disputes on the tariff classification, origin and value for duty of imported goods.

The CITT granted the appeals by the importers in the Bri-Chem trilogy on the basis of its previous decision in Frito-Lay and ordered the CBSA to refund duties it improperly assessed on the appellant importers. Of greater significance is the CITT’s finding that the CBSA engaged in an abuse of process by deliberately disregarding the CITT’s 2013 decision in Frito-Lay. A full discussion of the Bri-Chem trilogy and its ramifications for importers is available on the Bennett Jones website (The Gap, the Trap and the Binding Spring).

Here is what the importing community needs to know about the Bri-Chem trilogy: (more…)

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Are CCAA Proceedings a Panacea for Assignment or Novation Without Consent?

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

A purported assignment of a contract without consent and an alleged novation were ineffective, the BC Court of Appeal recently held in Barafield Realty Ltd. v. Just Energy (B.C.) Limited Partnership, 2015 BCCA 421 [Barafield] in the context of considering Companies’ Creditors Arrangement Act (CCAA) proceedings.

In Barafield, CEG Energy Options Inc. (CEG) entered into contracts to provide natural gas to apartment buildings owned by the respondents (Barafield). The contracts were for a fixed five-year term at a fixed rate. During this period, CEG entered into bankruptcy and CCAA proceedings. The contracts were sold to the appellants (Just Energy) and approved by an Alberta CCAA court (the Vesting Order). Barafield had no notice of these proceedings. (more…)

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Wishing You Happy Holidays, if Canada’s Anti-Spam Law Permits

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

The holiday season is an important season to focus on good will and the profound messages that the holidays celebrate. Many organizations use the holiday season to communicate with clients and associates to share that sentiment. For example, an organization may wish to invite individuals to a holiday-themed party, or simply send a seasonal greeting. What many organizations may not have considered is whether these benign-seeming messages will attract seven-figure liability.

Canada’s Anti-Spam Law, more commonly known as CASL, generally provides that a sender must obtain the consent of a recipient before sending a commercial electronic message, or CEM, to that recipient. Exemptions might also apply.

The threshold question for an organization to consider here is whether an invitation to a holiday-themed party, or even a simple greeting, constitutes a CEM for the purposes of CASL. Like so many aspects of CASL, answering this question is not straight forward. (more…)

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No Damages for First Nations Blockade

Supreme Court of Canada Denies Leave to Appeal in Moulton Contracting Ltd.

By Alison J. Gray

The Supreme Court of Canada recently denied leave to appeal in Moulton Contracting Ltd. v British Columbia, confirming the BC Court of Appeal’s decision (2015 BCCA 89) overturning an award of $1.75 million in damages against the Province of BC for failing to inform Moulton Contracting Ltd. of the complaints of certain members of the Fort Nelson First Nation (FNFN) regarding two Timber Sales Licenses granted by BC to Moulton.

Moulton sued the Province for losses suffered as a result of a blockade on Moulton’s logging access road. The BC Supreme Court found the Province liable for failing to inform Moulton of the threat against its logging operations by an individual member of the FNFN based upon breach of an alleged implied term in the Licenses and negligent misrepresentation. (more…)

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Increased Financial Award and Other Revisions to the OSC’s Proposed Whistleblower Program

By Alan P. Gardner and Jason M. Berall

On October 28, 2015, the Ontario Securities Commission (OSC) published the Proposed OSC Policy 15-601 – Whistleblower Program for comment. The proposed whistleblower program follows the OSC Staff Consultation Paper 15-401 – Proposed Framework for an OSC Whistleblower Program, which was published for comment on February 3, 2015. The new proposed program incorporates some of the comments received by the OSC in response to the Staff Consultation Paper. The most noteworthy change is the increase in the maximum potential award from $1.5 million to $5 million.

The proposed whistleblower program is designed to encourage individuals to voluntarily submit information on securities- or derivatives-related misconduct to the OSC. In exchange for providing information that was of meaningful assistance to OSC Staff in obtaining an order that results in total monetary sanctions and/or voluntary payments of $1 million or more, the whistleblower may be entitled to a financial award of up to $5 million.

Through the proposed whistleblower program, the OSC hopes to obtain information regarding misconduct that would otherwise be difficult to detect. As a result, the program is intended to increase the OSC’s effectiveness in the enforcement of Ontario securities law and to deter potential wrongdoers from engaging in serious misconduct in the marketplace.

The following are some of the key aspects of the proposed whistleblower program as well as how they differ from the previously released Staff Consultation Paper. (more…)

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