Construction contractor

Saskatchewan Prime Contractor Regulations Coming into Force January 1, 2015

By Jennifer A. Miller, Q.C., Tari M. Hiebert and Erinn O’Brien

On January 1, 2015, The Occupational Health and Safety (Prime Contractor) Regulations will come into force in Saskatchewan (the Prime Contractor Regulations).[1]

If you are doing business in Saskatchewan, you should consider whether the Prime Contractor Regulations will apply to your operations. This is particularly the case if you own worksites in Saskatchewan, as you may need to amend your contracts and your OHS management plans. (more…)

Share on LinkedInTweet about this on TwitterShare on FacebookShare on Google+Email this to someone
BYOD phone and laptop

Updating IT and BYOD Policies to Reflect CASL Software Notification Requirements

By Martin Kratz, QC, and Ravi K. Parhar

On January 15, 2015, the software provisions in Canada’s Anti-Spam Legislation (CASL) will come into force, creating significant prohibitions and requiring consent to, among other things, install software, change device settings, collect personal information and update existing software.

In a corporate environment, bring-your-own-device (BYOD) policies and IT use policies will need to be re-visited given the nexus of CASL prohibitions and industry practices in managing enterprise technology and communication infrastructure. Broadly speaking, under CASL, the authorized user or owner of a device (for example, a laptop, smart phone, tablet, etc.) must consent to software installations that are not self-initiated. In certain circumstances, consent will be required even where an installation is self-initiated. Further, the law imposes specific notification and disclosure obligations. Failure to comply with CASL could result in fines of up to $10,000,000 for organizations, or $1,000,000 for individuals, with employers being held liable for actions of employees. (more…)

Share on LinkedInTweet about this on TwitterShare on FacebookShare on Google+Email this to someone
Employment Contract

Employment Income not Substantively Connected to a Reserve is Taxable

By Alison J. Gray

In Baldwin et al v the Queen, 2014 TCC 284, the Tax Court of Canada had an opportunity to consider section 87 of the Indian Act and when employment income is “situated on a reserve” for tax purposes.

Facts

Each of the five Appellants was employed by Native Leasing Services (NLS). NLS is owned and operated by a status Indian who resides on a reserve. NLS provides employment placement services to not-for-profit Aboriginal organizations, and offers support services, including payroll services, human resource support, employee leasing/outsourcing, bookkeeping and staffing. Only NLS’ administrative staff provided services on the reserve. None of the Appellants worked on a reserve, and only one of them had a residence on a reserve, which she lived in on weekends. Each provided services to various Aboriginal organizations through NLS in various cities in Ontario and Quebec. (more…)

Share on LinkedInTweet about this on TwitterShare on FacebookShare on Google+Email this to someone
Dog tail

BEPS Tail Shouldn’t Wag Global Investment Dog

By Claire M.C. Kennedy

I spoke recently on a panel in Tokyo on the future of international tax planning after BEPS (the OECD’s & G20’s Action Plan to counter Base Erosion & Profit Shifting). The panel also featured a senior official at the OECD and practitioners from the US, Japan, Germany, France, Ireland and the Netherlands.

It was refreshing to hear the OECD official acknowledge that the international corporate tax planning targeted by BEPS constitutes legal arrangements and transactions and not illegal tax evasion. Moreover, she also acknowledged that in the area of treaty-shopping, governments themselves have to take some responsibility for creating treaty shopping and arbitrage opportunities through negotiation of inconsistent treaties, for example with differing withholding tax rates on interest, dividends or royalties or capital gains exemptions that are broader in some treaties than in others. That said, the OECD is clearly determined to counter previously accepted corporate tax planning practices that reduce the effective rates of corporate tax for multinational enterprises. (more…)

Share on LinkedInTweet about this on TwitterShare on FacebookShare on Google+Email this to someone
Mediation meeting

Disputants Await Clarification of Mediation Privilege’s Boundaries

By Julia E. Schatz and Gannon G. Beaulne

Today, Canadians are mediating their disputes in record numbers. One partial explanation for this phenomenon is that mediation purports to keep discussions between parties confidential, traditionally backstopped by settlement privilege. But the extent to which parties can pierce this bubble of confidentiality and use information disclosed in the course of mediation in subsequent court proceedings is an evolving issue.

The Supreme Court of Canada recognized the importance of confidentiality to the mediation process in its recent decision in Bombardier Inc v Union Carbide Canada Inc. Quoting from an article by Owen V. Gray, Justice Wagner noted that confidentiality encourages parties to engage in free and frank discussions without the worry that current or potential adversaries, including public authorities, will use their communications against them later. Equally, parties might be worried about prejudicing commercial or personal relationships. (more…)

Share on LinkedInTweet about this on TwitterShare on FacebookShare on Google+Email this to someone
ThoughtNetwork_FeaturedImage_PatentIdea

Who is the Inventor?

By Martin P.J. Kratz, QC

Enthusiastic entrepreneurs consult with patent agents about the protection of their new product. Often a successful team for an entrepreneurial business includes someone with technical skills, someone with marketing skills, someone providing business direction as well, of course, with one or more persons providing financial backing. Often all want to be named as inventors on a patent application. A key question which comes up is to identify who are the inventors.

That question was answered by the Federal Court in Drexan Energy Systems Inc v Canada (Commissioner of Patents), 2014 FC 887, a case where four people worked together on the problem of pipes freezing without heat tracing products and produced a new type of heating cable they believed improved over existing products. (more…)

Share on LinkedInTweet about this on TwitterShare on FacebookShare on Google+Email this to someone
Person signing a contract

New Good-Faith Duty of Honesty in Contractual Performance Recognized by Supreme Court of Canada

By Scott H.D. Bower, Derek J. Bell, Peter D. Banks, Ranjan K. Agarwal, Russell J. Kruger and William A. Bortolin 

A new duty of honest performance has been imposed on all Canadian contracts by the Supreme Court of Canada. The notion of a general and independent doctrine of good faith performance of contracts has historically been resisted in Anglo-Canadian common law. This has changed with the Supreme Court of Canada’s decision in Bhasin v Hrynew, 2014 SCC 71, in which the Court both: (1) recognized good faith contractual performance as a “general organizing principle of the common law of contract”; and (2) recognized a new duty of “honest performance”, which requires the parties to be honest with each other in relation to the performance of their contractual obligations.

At issue in the case was a contract between Canadian American Financial Corp. (Can-Am), a provider of education savings plan investments, and Mr. Bhasin, one of Can-Am’s retail dealers. The contract renewed automatically, unless notice of non-renewal was given six months prior to the end of the term. Can-Am terminated the contract, with the required notice, but had deceived Bhasin about its intention to do so. Had Can-Am been honest with Bhasin about its intention to terminate the contract, Bhasin could have transitioned and preserved his business to a greater extent than he was able to without such notice. (more…)

Share on LinkedInTweet about this on TwitterShare on FacebookShare on Google+Email this to someone
Downloading graphic

CRTC Provides Guidance on CASL Software Provisions – But Some Uncertainty Remains

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

From November 10 to 12, 2014, the CRTC provided its interpretation of the software provisions in Canada’s anti-spam law (CASL) in several presentations to industry. The CRTC also posted a specific FAQ about their interpretation on their website (CASL Requirements for Installing Computer Programs) on Monday, November 10, 2014. As these particular provisions will come into force on January 15, 2015, the CRTC has endeavoured to provide timely guidance to those that may be affected by same. However, even with the interpretations adopted by the CRTC, many questions remain outstanding. (more…)

Share on LinkedInTweet about this on TwitterShare on FacebookShare on Google+Email this to someone
Coffee cup and keyboard

Inconsistency in Canada’s Anti-Spam Law – When is “Java Scripts” not “JavaScript”?

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

Canada’s anti-spam law (CASL) is complex and ambiguous, and can result in substantial liability (e.g., a maximum $1,000,000 fine for individuals and $10,000,000 for organizations). Accordingly, many organizations have struggled to find a path to compliance under the law.

The software related prohibitions come into force on January 15, 2015, and so close attention has recently been paid to those complex and difficult provisions. (more…)

Share on LinkedInTweet about this on TwitterShare on FacebookShare on Google+Email this to someone
Drilling worker

Proving An Operator’s Gross Negligence: Is Intention Required?

By Justin R. Lambert, Russell J. Kruger, Scott H.D. Bower and Mike P. Theroux

Establishing an operator’s gross negligence requires “a degree of intentionality”, the Alberta Court of Queen’s Bench recently held in Bernum Petroleum Ltd v Birch Lake Energy Inc, 2014 ABQB 652 [Bernum].

In Bernum, the operator and 60-percent working interest owner, Bernum Petroleum Ltd., served independent operations notices and authorizations for expenditures (AFEs) on Birch Lake Energy Inc., the 40-percent working interest owner. The notices proposed the drilling of a number of horizontal wells. Birch Lake approved the AFEs and agreed to participate in the wells. One of the wells, however, failed and was abandoned.

Bernum subsequently issued cash calls to Birch Lake, which Birch Lake refused to pay. Bernum brought an application for summary judgment, and Birch Lake resisted on the basis that Bernum was grossly negligent in its conduct of the drilling operations. Specifically, Birch Lake alleged that errors made in the operation of one well, and repeated on a second, constituted gross negligence. The allegation involved Bernum’s decision to employ the same mud system on the second well, after experiencing problems with it on the first. (more…)

Share on LinkedInTweet about this on TwitterShare on FacebookShare on Google+Email this to someone