Notice and Notice Copyright Regime

Notice and Notice Regime Does Not Change Law for Obtaining Norwich Orders

By Martin P. J. Kratz

Unlike many countries which provide an effective “notice and take down” remedy for copyright owners whose works are wrongly posted on internet sites, Canada has implemented a “notice and notice” regime. In Voltage Pictures, LLC v. John Doe 2016 FC 881, the Federal Court interpreted some aspects of that regime in a reverse class action suit brought by several parties against a John Doe defendant. (more…)

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Ashley Madison Data Breach

Naughty Secrets – Findings in the Ashley Madison Breach

By Martin P. J. Kratz

A quote attributed to FBI Director Robert Mueller is, “There are only two types of companies: those that have been hacked and those that will be”. The assessment of the Ashley Madison cyber-attack has lessons for all organizations who may face this risk. (more…)

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TV cords

No More Tears (Enough is Enough)… Ending the Debate About Unlawful Means in Conspiracy Torts

By Ranjan K. Agarwal

It was 1983. The Police’s Every Breath You Take was top of the charts. Return of the Jedi was tearing up the box office. And the Supreme Court of Canada released that seminal case seared into every competition litigator’s brain, Canada Cement LaFarge Ltd. v B.C. Lightweight Aggregate. Canada Cement laid out the definitive test for a tort of conspiracy, including that the defendants’ conduct has to be “unlawful” (sort of like the protagonist in Every Breath You Take). In that case, the plaintiff’s civil claim was based on guilty pleas by the defendants to charges of conspiracy under the Combines Investigation Act (the predecessor to the Competition Act). (more…)

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Drone flying

Do You Have a Permit for that Drone?

By Gregory A. Liakopoulos and Micaela Zila

In our last post we talked about some of the key things to consider before flying a drone over a real estate or construction site. Even with these general considerations in mind, however, the fear of fines under the complex Canadian regulatory framework for aircraft safety may still leave business owners and enthusiasts unsure about how to incorporate drone technology into their operations safely and legally. (more…)

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Trump University Class Action

Second Trump University Class Action Proceeding to Trial

By William A. Bortolin and Michael A. Eizenga

Class action trials, a rarity in Canada, are now set to proceed in two separate U.S. District Court cases involving U.S. Presidential candidate Donald Trump and “Trump University”. In a decision released this week, Judge Gonzalo P. Curiel denied Trump’s motion seeking summary dismissal of Cohen v. Trump, a certified class action on behalf a nationwide U.S. class claiming damages against Donald Trump (personally) for alleged breaches of the Racketeer Influenced and Corrupt Organizations Act (“RICO”). (more…)

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Financial Modeling

Tax Court Allows Deduction for Advisory Fees in M&A Transaction

By Claire M.C. Kennedy

The Tax Court of Canada has recognized in a recent case that “oversight expenses” – notably investment banking and other professional advisory fees for services rendered to boards of directors in their discharge of oversight responsibilities – should be fully deductible, even in the context of a planned M&A transaction. The Canada Revenue Agency has traditionally taken a hard line on expenses incurred by an acquirer or a target and has denied deductibility on the basis that these expenses are of a capital nature. Under CRA’s position, such expenses have had limited to no practical tax benefit. By rejecting CRA’s position, the Rio Tinto Alcan Inc. v The Queen (2016 TCC 172) decision has delivered a significant victory for companies, especially given the magnitude of fees associated with M&A transactions. Oversight expenses accepted as deductible by the Tax Court in Rio Tinto Alcan included investment banking fees for financial modelling and for financial and valuation opinions culminating in a fairness opinion. Moreover, given the broad rationale adopted by the Court, this case potentially establishes the basis for deductibility of oversight expenses in other capital transactions such as reorganizations and financings [at para 88]: (more…)

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Alberta Wheat Field

Simply the Pest Management Regulatory Agency… and its Duty to Initiate Special Reviews

By Julia Schatz, Jessica Mathewson, Graeme Melcher

In Environmental Interest Groups Challenge Registrations of Neonicotinoid Products in Federal Court, we discussed a recent judicial review initiated by the David Suzuki Foundation and others with respect to conditional registrations of neonicotinoid products. On May 17, 2016, the Federal Court released its decision in another judicial review brought by the David Suzuki Foundation, among others, in Équiterre and David Suzuki Foundation v Minister of Health (Canada). This case concerns whether section 17 of the Pest Control Products Act (PCPA) imposes a mandatory or discretionary duty upon the Minister of Health and the Pest Management Regulatory Agency (PMRA) to initiate special reviews of pest control products and active ingredients following the occurrence of certain prescribed events. (more…)

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Oil Equipment

Transfer of Operatorship of Oil and Gas Assets Upon Insolvency

By Donald E. Greenfield, Q.C., Justin R. Lambert and Aaron F. Rankin

Operating agreements for oil and gas assets typically contemplate the immediate replacement of the operator by another working interest owner in the event of the operator’s insolvency. However, these provisions often become practically unenforceable because, once proceedings are commenced under either the Companies Creditors’ Arrangement Act, RSC 1970, c C-25 [CCAA] or the Bankruptcy and Insolvency Act, RSC 1985, c B-3 [BIA], stays are imposed that prevent creditors from exercising any remedies against the insolvent operator, including these “immediate replacement” provisions.

The recent decision in Bank of Montreal v Bumper Development Corporation Ltd, 2016 ABQB 363 [Bumper] indicates that immediate replacement clauses may be given effect in proceedings under the BIA, although, as discussed below, whether immediate replacement clauses will be given effect in CCAA proceedings remains uncertain. (more…)

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Maple Leaves

Have a Contract in Canada? Your Class Action Risk is Greater Than You May Think

By Gannon Beaulne, Mike Eizenga and Ranjan Agarwal

Non-Canadian companies: welcome to the Canadian class action party. In recent years, Canadians have increasingly begun to recognize and actively manage the major business risk posed by class actions, as more and more businesses have found themselves facing class actions in Canadian jurisdictions. But that growing risk does not stop at the Canadian border. Companies that do business in Canada—or even that simply have a contract formed in Canada or some other Canadian connection—should know that they can now be dragged into a Canadian class action in circumstances that might surprise them. (more…)

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