CSA Amendments to Simplify Reports of Exempt Distribution - Bulletin

September 24, 2018

On July 19, 2018, the Canadian Securities Administrators ("CSA") published final amendments ("Amendments") to National Instrument 45-106 – Prospectus Exemptions ("NI 45-106") and its related Companion Policy that will amend the exempt distribution report set out on Form 45-106F1 - Report of Exempt Distribution (the "New Report").  Should all ministerial approvals be obtained, the New Report will come into force on October 5, 2018.

Government "Policy" Decisions Do Not Always Trump Judicial Review

September 21, 2018

A change in government and its policies can impact business dramatically, and often with unintended consequences.  In some cases, the result is intended.  In matters of a commercial nature that do not involve recognized Charter rights, resort to the Charter is unavailable, especially when legislation is involved.  Even if the Charter is applicable, as recent events have shown, a government may invoke the s. 33 "notwithstanding clause" to avoid judicial scrutiny of legislation and a court remedy.

However, the recent decision of Justice Myers of the Ontario Superior Court in Tesla Motors Canada ULC v. Ontario (Ministry of Transportation) demonstrates the ability of the courts to provide an expeditious remedy when a "policy" decision is taken within an existing statutory framework, even if it is in furtherance of a new political mandate.

The Role of Risk Management in Regulation

September 5, 2018

We live in a society that assumes risks can be both anticipated and controlled. If there is a failure to foresee and prevent harm (to fail to control the risk) and a regulator in sight, odds are it will be on the list of those to blame. And the standard of affixing blame to a regulator is low. Facing these pressures, regulators are using management tools and concepts to inform their operations and programs. This article is a quick tour through the role of risk management in a regulatory context. 

Ontario Court of Appeal Affirms Dismissal of Action Against Auditors Because of Failure to Prove Damages

August 29, 2018

The Court of Appeal for Ontario recently addressed the issue of auditor's liability, post-Livent, in Fairfield Sentry Ltd. v PricewaterhouseCoopers LLP, 2018 ONCA 696. The Court of Appeal's decision highlights the importance of putting one's best foot forward on a motion for summary judgment, and the risk of not responding to some of the issues addressed by the other side's experts.

Timing is Everything: Subrogation Claims in the Context of a Construction Loss

August 22, 2018

It is often perceived that subrogation claims are barred in the context of a construction loss. This is because typically the applicable construction policies will contain waivers of subrogation and list the various contractors as additional insureds. However, a very recent decision by the Ontario Superior Court demonstrates an example where subrogation was not precluded.

Ontario Government Makes Policy U-Turn: Doug Ford's Plan for the Private Retail Sale of Cannabis

August 14, 2018

Fresh off his convincing electoral victory, Premier Doug Ford has announced that he plans to begin the process of scrapping Ontario's existing approach to the retail sale of cannabis, which had been introduced by the predecessor Liberal government.

Is the Clock Ticking? The Court of Appeal Discusses Discoverability and the Application of Section 5(1)(a)(iv) of the Limitations Act, 2002

August 14, 2018

In Gillham v. Lake of Bays (Township), 2018 ONCA 667, a case about the discoverability of claims for damages arising out of construction deficiencies, the Court of Appeal confirmed that all factors under s. 5(1) of the Limitations Act, 2002 must be considered in analyzing the question of discoverability and before a claim can be held to be statute-barred.  The decision focused specifically on the application of s. 5(1)(a)(iv), which provides that one condition for a claim to be discovered is that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it.

Out of the Weeds: What You Need to Know About the Cannabis Act as an Employer

August 8, 2018

On June 20, 2018, the Government of Canada passed Bill C-45, the Cannabis Act, which will, among other things, legalize the recreational use of cannabis. The Cannabis Act will come into force on October 17, 2018. Employers must be aware of the implications that the legalization of recreational cannabis may have on its workplace and be ready to act proactively.

The Court of Appeal Addresses Various Aspects of Appellate Review in Di Gregorio v Sunwing Vacations Inc.

August 3, 2018

In Di Gregorio v Sunwing Vacations Inc., the Court of Appeal allowed an appeal from the decision of a motion judge dismissing the appellants' claim based on a foreign limitation period. While the facts underlying the motion judge's and the Court of Appeal's decisions are not unusual for cases that raise the issue of the courts' jurisdiction to hear a matter (which often involve injuries or damages that are sustained by Ontario claimants vacationing abroad), the decision itself is somewhat unusual given the bases on which the appeal was granted and the nature of the deficiencies in the motion judge's decision.

Fourth Time's Not a Charm: A Case of Subrogation Despite Contrasting Trilogy of Decisions by the Supreme Court of Canada

July 24, 2018

In Royal Host GP Inc. v. 1842259 Ontario Ltd., 2018 ONCA 467, the Ontario Court of Appeal recently examined whether there was a bar to subrogation in a commercial lease. The Court found that there was no bar and set out a useful summary of the law in this area. 

International Commercial Arbitration Awards: When Does an Arbitration Award Become Binding?

July 20, 2018

"A bad beginning makes a bad ending."
- Aeolus, fragment 32

And so the saying went for Mr. Popack and Mr. Lipszyc, the parties in the recent decision of the Court of Appeal in Popack v Lipszyc, 2018 ONCA 635. The issues in this case were when an arbitration award of a rabbinical court was binding and whether it should be recognized and enforced in Ontario.

Libel Tourism and Forum Shopping: The Supreme Court of Canada Applies the Van Breda Test to an Internet Defamation Claim

June 19, 2018

In Haaretz.com v. Goldhar,  a decision released on June 6, 2018, the Supreme Court of Canada confronted the array of thorny analytical and practical issues raised by multijurisdictional defamation claims. 

What You Need to Know About Police Record Checks

June 18, 2018 | download

If you're like me and had all but forgotten about the new Police Record Checks Reform Act, 2015,  you are forgiven – you're not the only one. It seems that, until very recently, the government had also forgotten about this Act, which has been sitting in legislative limbo, unproclaimed, since it received Royal Assent on December 3, 2015. However, this legislation returned to life on April 25, 2018, with an Order in Council proclaiming that the Act would come into force on November 1, 2018.  This was quickly followed by four new regulations on April 27, 2018.  Clearly, someone was getting ready for an election. So let's revisit.

Update to Regulations and Distribution of Recreational Cannabis in Canadian Provinces and Territories

June 7, 2018 | download

On April 13, 2017, the Federal Government introduced Bill C-45, An Act respecting cannabis and to amend the Controlled Drugs and Substances Act, the Criminal Code and other Acts (the "Act"). Once passed, the Act will establish a national framework for the governance and strict regulation of recreational cannabis in Canada. 

The Lesser of Two Evils and the Three Hour Rule: An Overview of Employer Obligations on Election Day in Ontario

June 4, 2018

While many employers eagerly await the outcome of the Ontario general provincial election on Thursday June 7, 2018 and its potential ramifications for their businesses, employers in Ontario should be aware of the obligations owed to their employees under Ontario's Election Act, R.S.O. 1990, c. E.6.

Litigating Competition Law in Canada, Edited by Nikiforos Iatrou

June 1, 2018

Nikiforos Iatrou, Chair, WeirFoulds' Competition Law Group, has assembled Canada's first textbook focused solely on competition litigation. Titled "Litigating Competition Law in Canada" (LexisNexis, 2018), it is edited by Niki and features contributions from Canada's leading competition litigators and a Foreword from The Hon. Justice John B. Laskin of the Federal Court of Appeal. This text contains practical guidance for private practitioners and in-house counsel when dealing with a contentious competition law case and provides strategic insight into the procedural aspects of litigating a competition matter.

An end to the enforcement saga? Yaiguaje v. Chevron Corporation and the Preservation of the Corporate Veil

May 30, 2018

In its recent decision in Yaiguaje v. Chevron Corporation, 2018 ONCA 472, the Court of Appeal clarifies the interpretation of the Execution Act, R.S.O., 1990, c. E.24, and reiterates the test for piercing the corporate veil in the context of the enforcement of a judgment. While the decision reinforces the long-standing principle of corporate separateness, it also raises certain questions regarding the role of equity in piercing the corporate veil to enforce a valid judgment.

No Family Resemblance Here: Tiffin Overturned on Appeal - Investment Funds Bulletin

May 24, 2018

Securities regulators must be breathing a sigh of relief. An earlier decision in Ontario Securities Commission v Tiffin1 was the cause of no small amount of consternation in the cubicles and corridors of the OSC, opening as it did the possibility that certain promissory notes may be exempt from the application of the Securities Act. The Ontario Superior Court has now overturned that lower court decision,2 confirming what regulators have long asserted: promissory notes, as evidence of indebtedness, are indeed securities. The appeal decision reiterates, with considerable emphasis, the idea that securities legislation is complex, but complete and comprehensive, and judicial attempts to interpret its statutory provisions in a way that is inconsistent with the plain language of the Act constitutes an error of law.

The Mareva Injunction: A "vital arrow" for fraud victims, according to Ontario's Divisional Court

May 22, 2018

In a recent decision, Ontario's Divisional Court reviewed the requirements for succeeding in obtaining a Mareva injunction, and, more importantly, reaffirmed the importance of such an injunction in fraud cases.

AML Update: Looking Ahead in 2018: Investment Funds Bulletin

May 17, 2018

The Proceeds of Crime (Money Laundering) and Terrorist Financing Act (PCMLTFA) provides for there to  be a review by Parliament of the administration and operation of the Act every five years.  The House of Commons Standing Committee on Finance (FINA) is the committee designated to carry out there view.  FINA held ten meetings between February 8 and April 18 of this year, and heard from 62 witnesses. FINA is expected to produce its report in the third quarter of 2018.

Backtrack on Bill 148: Changes to Calculating Public Holiday Pay for Employers in Ontario

May 17, 2018

On May 7, 2018, the Ontario government announced that the Ontario Ministry of Labour will conduct a review of the public holiday system under Part X of the Employment Standards Act, 2000 following feedback and discussions with stakeholders about the changes pursuant to Bill 148.

Is Your RAQ Ready? 2018 Risk Assessment Questionnaire (RAQ) Due Dates Are Coming Up

May 11, 2018

The Ontario Securities Commission (OSC) conducts examinations of registrant firms with respect to their compliance with regulatory requirements.  The OSC gathers information about each firm including as to their business operations, practices and procedures through risk assessment questionnaires (RAQs).  The completed RAQs (together with other data) are used by OSC staff to assign a risk rating to the firm and this risk rating is a factor in selection of registrants for review.  Registrants are sometimes caught off guard when they receive the RAQ and find themselves scrambling at the last minute to have the questionnaire completed.  Please be reminded that the deadlines for submission are approaching.

British Overseas Territories Faced with Push for Transparency by UK Government

May 4, 2018

On 1 May 2018, the UK Government accepted an amendment to the Sanctions and Anti-Money Laundering Bill, which now heads back to the House of Lords.

Out of Scope – The Court of Appeal Finds that the Duty to Supply Product Fit for Human Consumption Does Not Extend to Franchisees' Pure Economic Loss

May 3, 2018 | download

On April 30, 2018, the Court of Appeal for Ontario released its decision in 1688782 Ontario Inc. v Maple Leaf Foods Inc., 2018 ONCA 407, reversing a decision granting summary judgment (in part) in favour of Mr. Sub franchisees in a class action commenced against Maple Leaf Foods Inc. following the listeria contamination of certain Maple Leaf ready-to-eat meats in 2008. The Court of Appeal's decision makes numerous references to the Supreme Court's decision in Deloitte & Touche v Livent (Receiver of), 2017 SCC 63, and highlights the importance of properly defining the scope of any duty of care arising from a relationship between parties.

A Caution about Cautions, SCERPs and Remedial Programs - The Impact of Publication

April 24, 2018

"…Health regulatory colleges should consider the effect of public disclosure of ICRC   screening outcomes on their own decision-making. Traditionally, screening outcomes have been viewed as educational. In upholding ICRC decisions related to cautions, reviewing courts have pointed to the fact that cautions are "remedial in nature" and therefore distinct from sanctions and that they are not recorded in the public register or publicised. If cautions and other screening outcomes are made publicly available, will they be subject to increased judicial scrutiny? Health regulatory colleges may need to consider increasing procedural protections afforded to members at the screening stages to avoid judicial criticism." 

The Latest in the Catalyst Capital Litigation Saga: Spoliation, Substantial Indemnity Costs and Abuse of Process

April 23, 2018

Two decisions have been recently issued in respect of the claims brought by the investment management firm Catalyst Capital Group Inc. following its unsuccessful efforts to acquire WIND Mobile Inc. in 2014. The results in both decisions (one by the Ontario Superior Court of Justice, and the other by the Court f Appeal) were driven primarily by factual findings.

Ontario's New Standard Form of Residential Lease: What Landlords and Property Managers Need to Know

April 9, 2018

Building on its 2017 expansion of rent control to all residential units and the City of Toronto's recent registration and maintenance obligations on residential landlords, the Government of Ontario has now developed a new standard lease template (the "New Lease"), which was promised under 2017's Ontario Fair Housing Plan

The Independence of Expert Witnesses

April 2, 2018

Although the proposition that an expert should be independent has always been accepted wisdom, the requirement that an expert be independent has only recently been mandated by the Court as part of the threshold test for admissibility.

Powers of Outgoing Municipal Councils in an Election Year – Reminder

March 19, 2018

As you know, regular municipal elections are to be held on the fourth Monday in October. This year's municipal election will take place on Monday, October 22, 2018. Nomination papers are to be filed from Tuesday, May 1, 2018 up until 2:00 p.m. on Friday, July 27, 2018. In this connection, we want to remind you that ‘outgoing' municipal councils may have limited powers during the election period, starting from the nomination day (July 27, 2018).

Proposed Regulations and Distribution of Recreational Cannabis in Canadian Provinces and Territories

March 5, 2018

On April 13, 2017, the Federal Government introduced Bill C-45, An Act respecting cannabis and to amend the Controlled Drugs and Substances Act, the Criminal Code and other Acts (the "Act"). Once passed, the Act will establish a national framework for the governance and strict regulation of recreational cannabis in Canada. Under the proposed Act, the Federal Government will be responsible for overseeing the regulatory framework governing the licensed cultivation, production and manufacturing of cannabis and setting industry-wide standards with respect thereto, whereas the provinces and territories will be responsible for regulating the distribution and sale of recreational cannabis within their own jurisdictions.

New Investment Powers: Prudent Investor Standard and Legal List Amendments

March 1, 2018

Heather Douglas provides a full analysis of Ontario's recently released Prudent Investor Regulations.

Prudent Investor Legislative Provisions Update - Fifth

February 23, 2018

The provisions of the Municipal Act, 2001 regarding the new prudent investment powers have been proclaimed in force as at March 1, 2018.  However, the new prudent investor regime will not be effective until relevant regulations are filed AND come into force. We expect that the regulations will be filed on or after March 1, 2018 but they may come into force on a later date – the City of Toronto prudent investor regulation came into force more than a year after it was filed. We will keep you posted.

Frozen but Available: The Limits of a Mareva Injunction

February 15, 2018

In the recent decision Trade Capital Finance Corp. v Cook, the Ontario Court of Appeal considered a claim of a non-party creditor over the defendant's funds that were subject to a Mareva injunction. While the decision focuses on a specific aspect of a Mareva injunction, as discussed further below, it serves as a reminder of how this equitable remedy can be obtained and used in commercial litigation, and of the limits of this remedy.

Preparing for Adjudication? How to Govern Yourself Accordingly

February 14, 2018

The Construction Act is on its way to Ontario, and with it comes the advent of adjudication. As many will already know or soon find out, Ontario's adjudication process will be document intensive. Construction industry players will be well-advised to structure their business practices in such a way that participating in an adjudication process involves a quick transfer of well-organized files rather than a hurried rush to turn the office upside down. 

The following tips are not only helpful for future litigants, but are also just good business practices that may help avoid any sort of dispute.

Ontario Court of Appeal Decision Means More Independence for Ontario Municipalities Over Parkland

February 14, 2018

In a long-awaited decision released on January 29, 2018, a 3-judge panel of the Ontario Court of Appeal unanimously upheld a Divisional Court decision confirming the rights of municipalities to determine how much parkland they require from developers as a condition of development approval under the Planning Act.

What You Need to Know - Legislative Updates for Delivery of Health Care in Ontario

January 30, 2018

The Ministry of Health and Long-Term Care was exceptionally busy in the last couple of months. The purpose of this bulletin is to provide you an update on some significant initiatives that were completed by the Government as of January 1, 2018 and to make educated guesses on what we might see in the months ahead. 

Once Bitten, Twice Shy? Not so, says the Ontario Court of Appeal

January 16, 2018

In the April, 2017 case of Deslaurier Custom Cabinets v. 1728106 Ontario Inc., 2017 ONCA 293, the Ontario Court of Appeal had occasion to revisit an issue that it had previously dealt with in the same case one year earlier, that is, the standard of appellate review applicable to contractual interpretation cases. After one of the parties sought leave to appeal to the Supreme Court of Canada, the Supreme Court remanded the case back to the Court of Appeal, to be decided in accordance with the Supreme Court's decision in Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37 ("Ledcor").

Equity Rules the Day: The Supreme Court of Canada Clarifies the Tenets of Proprietary Estoppel

January 8, 2018

In December 2017, the Supreme Court of Canada released its decision in Cowper-Smith v. Morgan, 2017 SCC 61, a case dealing with the issue of proprietary estoppel.  While the facts of this case are borne out of circumstances relating to an estate, the law as set out by the Supreme Court can be equally applied in the context of commercial litigation in relation to promises made in a commercial context.  

Mandatory Arbitration Isn't Always Mandatory in Canada

January 8, 2018

WeirFoulds partner Nikiforos Iatrou and associate Anastasija Sumakova contributed to the Winter 2018 issue of Today's General Counsel with their article, "Mandatory Arbitration Isn't Always Mandatory in Canada".

Using change directives to delay compensation and adjustments to the project schedule

December 22, 2017

Acceleration; critical path; milestones; liquidated damage; change directives; and change orders. These are terms used in today's fast-paces construction industry where project delays have serious financial consequences and parties are required to perform addition work before the terms upon which the work is to be performed are agreed.

"Entrepreneurial" Class Plaintiff Hit With $1 Million Costs Award

December 8, 2017

In Yip v. HSBC Holdings plc, a decision released on November 20, 2017, Justice Perell awarded partial indemnity costs of $1 million to defendants that had succeeded, on jurisdictional and forum conveniens grounds, in defeating a proposed shareholder class action. 

International Anti-Corruption Day: 9 December

December 8, 2017

International Anti-Corruption Day has been recognized on an annual basis since the passage of the United Nations Convention against Corruption – which Canada has ratified – in 2003. This year, International Anti-Corruption Day falls on 9 December 2017.

Webinar Series: All About Shareholders

December 7, 2017

FEX members Caroline Abela, WeirFoulds LLP, and Jeff Noble, BDO hosted a three part webinar series focused on shareholder agreements.

WeirFoulds Securities Law Review

December 7, 2017 | download

Our coverage is succinct and targeted to serve the needs of issuers and their advisors. For more detailed information on our service offerings, please visit us online at weirfoulds.com.

Recent developments include:

  • TSX releases guidance with respect to majority voting policies and advance notice policies
  • Impact of the 2016 changes to the Canadian take-over bid regime
  • OSC draws the line on private placements during proxy contests in the Eco Oro decision
  • Securities Commission staff raise the bar for conflict transactions
  • Exempt market dealers banned from prospectus offerings

Lenders Should Think Twice Before Foreclosing on Sympathetic Mortgagors

December 6, 2017

Many mortgage enforcement actions proceed through Ontario courts every day. When mortgagees are not paid in accordance with the terms to which they have agreed with the mortgagor, they have a number of options open to them. These options include foreclosure and power of sale proceedings.

Divisional Court Offers First Interpretation of New Interim Suspension Powers Under the RHPA

December 4, 2017

Introduction

In Rohringer v Royal College of Dental Surgeons of Ontario (2017),1  the Divisional Court issued its first decision applying the new interim suspension powers in the Regulated Health Professions Act ("RHPA"). Health professionals governed by the RHPA can have their certificate of registration suspended (or have terms, conditions, or limitations placed on their certificate of registration) prior to a discipline hearing if their conduct "exposes or is likely to expose the member's patients to harm or injury."2 On May 30, 2017, Bill 87, Protecting Patients Act, 2017 came into force and amended the interim order provisions of the RHPA. Prior to these amendments, interim orders could only be issued by a college's screening committee, known as the Inquiries, Complaints, and Reports Committee (the "ICRC"), if an allegation of professional misconduct or incompetence had been referred to the Discipline Committee. Under the new provisions, however, the ICRC can make an interim order any time after a complaint is received or an investigator is appointed. This was intended to be a significant change and this decision is the first time the amendment has been considered by the courts.  

Race to "get a foot in the door" of the recreational cannabis industry raises potentially legal issues

November 30, 2017

Canadian cannabis producers are in a race to increase their size and gain capital ahead of Canada's planned recreational cannabis legalization in July 2018. The recent dueling takeover bids involving a trio of domestic cannabis companies is proof of the jockeying that is currently going on in the industry.


Revisiting First Principles Applicable to Motions for Leave to Intervene in Class Proceedings

November 21, 2017

In Romeo v. Ford Motor Co.,[1] a recent decision of the Ontario Superior Court of Justice, Justice E.M. Morgan considered the principles applicable to a motion to intervene in a certification motion in a class proceeding. This case offers a helpful reminder of first principles applicable to interventions under the Class Proceedings Act, S.O. 1992, c. 6 ("CPA").



[1] 2017 ONSC 6674.

Make a Will Month provides an annual checkup for lawyers and the public

November 21, 2017

According to a 2012 survey conducted by lawyers' insurance company LawPRO, 56 per cent of Canadian adults do not have a signed will and 71 per cent do not have a signed power of attorney. The Ontario Bar Association hopes to tackle this issue during Make a Will Month, a public outreach campaign aimed at educating the public about the importance of executing a will and powers of attorney and informing the public about the ways in which lawyers can assist in estate planning.

Third Edition of the U.S. Sedona Principles and Ongoing Developments in Electronic Discovery

November 20, 2017

Last month, the Sedona Conference announced the publication (forthcoming in 2018) of the third edition of The Sedona Principles: Best Practices, Recommendations & Principles for Addressing Electronic Document Production (the "Principles"), and released a "Final/Prepublication Version". The Principles were developed by the Sedona Conference Working Group on Electronic Document Retention and Production, and represent a set of core principles and best practice recommendations for production of electronic information in litigation. The Principles and extensive commentary to the Principles have been updated twice since their first publication in January 2004 to reflect the continuing developments in technology, the increasing proliferation of electronic documents, the practical issues encountered in litigation, as well as the developments in the law that are often driven by these very factors.

Justification, Transparency and Intelligibility: From Beginning to End

November 8, 2017

Recent case law has stressed the importance of regulatory tribunals ensuring that their processes be transparent and intelligible, from beginning to end: from the establishment of clear allegations in discipline proceedings to the writing cogent reasons for decisions.

Ontario Introduces New Cannabis Legislation: What You Need to Know About the Impact on Commercial Real Estate and Leasing

November 7, 2017 | download

Introduction: Bill 174

In order to meet the federal government's July 1, 2018 target for legalizing recreational cannabis country-wide, each province and territory across Canada has been seeking public input and developing their respective plans for the regulation of the sale of recreational cannabis.

Security for Appeal Costs: Litigation Tactics Through the Holistic Lens

November 7, 2017

In Yaiguaje v. Chevron Corporation, 2017 ONCA 827, a panel of the Ontario Court of Appeal recently reversed, in short order, a decision of one of its members ordering the appellants to pay security for costs. In this protracted international case, the motion judge had ordered the appellants to post $943,000 for security for costs of their appeal of a summary judgment order dismissing their representative claim against Chevron Corporation's Canadian subsidiary.

The Supreme Court of Canada Holds Banks Liable for Conversion: Teva Canada Ltd. v. TD Canada Trust

November 3, 2017

On October 27, 2017, the Supreme Court of Canada released its decision in Teva Canada Ltd. v. TD Canada Trust.1 The Court split 5:4 in the decision to overturn the Ontario Court of Appeal's ruling that the banks were not liable for converting cheques to non-existing or fictitious payees.

Government Backtracks on Anti-Surplus Stripping Proposals, and Looks to Develop Alternative Proposals

October 19, 2017

Happily, on October 19, 2017, the Federal Government announced it is not proceeding with yet another measure in its July 18 proposals (summarized here) – this time, the anti-surplus stripping proposals. Earlier in the week, the Government announced that it will (i) simplify the income sprinkling proposals and not proceed with proposed measures to limit access to the Lifetime Capital Gains Exemption (summarized here) and (ii) add a safe harbour for the proposals impacting the taxation of passive income in a private corporation (summarized here).

Proposed Tax Measures to Limit Deferral Benefits of Acquiring Passive Investments in Private Corporations

October 18, 2017 | download

On October 18, 2017, the Federal Government announced its intention to introduce measures to limit the deferral advantage associated with a private corporation using active business income to make passive investments (the "Announcement").  To see our prior Client Alert concerning the Government's announcements earlier in the week, click here.

Motions for Partial Summary Judgment: Proceed with Caution

October 16, 2017

In Hryniak v Mauldin, the Supreme Court of Canada held that a summary judgment motion is appropriate if: (i) it can achieve a fair and just adjudication; and (ii) it provides a process that allows the judge to make the necessary findings of fact, apply the law to those facts, and is a proportionate, more expeditious and less expensive means to achieve a just result than going to trial.

Government Backtracks on Certain Income Tax Proposals Impacting Private Corporations and their Shareholders

October 16, 2017

On October 16, 2017, the Federal Government announced its intention to lower the small business tax rate from 10.5% to 10 per cent, effective January 1, 2018, and to 9 per cent, effective January 1, 2019. It also announced it will "simplify" the proposed dividend sprinkling rules and that they will not be moving forward with proposed measures to limit access to the Lifetime Capital Gains Exemption(the "Announcement"). See our prior Client Alert for a summary of the original proposals.

Chambers Global Practice Guide: Cartels 2018 Canadian Chapter

October 11, 2017

WeirFoulds Competition Practice Group contributed the Canadian chapter to Chambers Global Practice Guide: Cartels 2018.

Prudent Investor Legislative Provisions Update - Third

October 11, 2017

On Monday, October 10, 2017 the Ministry of Municipal Affairs posted on Ontario's Regulatory Registry a summary of proposed regulatory changes under the Municipal Act, 2001 and the City of Toronto Act, 2006.

Bill 160: Major Initiatives of the Ministry of Health and Long-term Care

October 10, 2017

On September 27, 2017, the Ontario Government introduced for first reading Bill 160, Strengthening Quality and Accountability for Patients Act, 2017, one of the most far-reaching omnibus bills introduced by the Minister of Health and Long-Term Care. Debate on the Bill commenced on October 4, 2017.  If passed, Bill 160 will amend six statutes, enact two new statutes (the Health Sector Payment Transparency Act, 2017 and Oversight of Health Facilities and Devices Act, 2017), repeal and replace one statute (Medical Radiation and Imaging Technology Act, 2017) and repeal four statutes (Independent Health Facilities Act, Healing Arts Radiation Protection Act, the Private Hospitals Act and the Ontario Mental Health Foundation Act).

Court of Appeal Affirms Full Indemnity Costs Award

October 10, 2017

In Net Connect Installation Inc. v. Mobile Zone Inc., 2017 ONCA 766 , a decision released on September 29, 2017, the Court of Appeal articulates the standard of conduct that will merit an award of full indemnity costs against a party. The circumstances in which this case arose are familiar to commercial litigators and the courts, and involve parties dissipating assets in anticipation or in the course of court proceedings.

ONCA considers the "reasonable investigation" defence in securities class actions

October 4, 2017

The Ontario Court of Appeal recently released its decision in Rahimi v SouthGobi Resources Ltd., 2017 ONCA 719, in which it reversed a well-publicized Superior Court securities class action decision.

The continuing saga in Yaiguaje v. Chevron Corporation: a lesson in security for costs and the enforcement of foreign judgments

October 2, 2017

The judicial history in Yaiguaje v. Chevron Corporation spans several jurisdictions and dates back to the early 1990s, while the facts underlying the dispute date back to the 1960s. The matter has reached appeal courts, including the Supreme Court of Canada, and has prompted a review of several issues relevant to the conduct of business internationally, including the enforcement of foreign judgments and piercing the corporate veil.

Beware: Proposed Tax Changes May Require you to Act Now

September 29, 2017

In a prior Client Alert, we summarized tax proposals released on July 18th, 2017 that will, if enacted as proposed, significantly change the tax rules for private corporations and their shareholders.  In some cases, it may be appropriate (or at least not unwise) to wait to see the final form of proposals before taking action.  However, there are two scenarios we would like to draw to your attention where you should consider acting now.

Crisis and Social Media

September 26, 2017

Whenever there is a significant public crisis such as Hurricane Harvey, people turn to the social web, usually Twitter, to gather news, offer help, express irritation, and berate public agencies or corporations and/or politicians. Below are some comments on how to think about social media crises and some tips on how to handle them.

Prudent Investor Legislative Provisions Update - Second

September 25, 2017

Further to our update of September 14, 2017, the changes to the Municipal Act regarding prudent investment have not yet been proclaimed in force. We are monitoring them closely and will inform you as soon as there are further developments.

Primer on Permanent, Mandatory and Interlocutory Injunctions

September 21, 2017

Injunctions are extraordinary remedies. Given their equitable nature, they are very flexible and an invaluable tool for litigators. An interlocutory injunction, if granted, can have a dramatic impact on a case. It is therefore important for lawyers to understand the basics of injunctions.


Prudent Investor Legislative Provisions Update

September 14, 2017

We have been advised by a communications official at the Ministry of Municipal Affairs that the prudent investor provisions under the Municipal Act, 2001 (the "Act") are expected to be proclaimed in force next week (no reference however to the relevant regulations).

Back to Basics: A Refresher on the Fundamentals of Contractual Interpretation

September 13, 2017

As the new school year kicks off, the Ontario Court of Appeal's recent decision in RBC Dominion Securities Inc. v. Crew Gold Corporation, 2017 ONCA 648 serves as a handy study guide for lawyers looking to brush up on Contracts 101.

"Umbrella Damages" Forecast for Canada: Cross Border Sellers Beware

August 28, 2017

WeirFoulds partner Nikiforos Iatrou and associate Kayla Theeuwen contributed to the Aug/Sept issue of Today's General Counsel with their article, "‘Umbrella Damages' Forecast for Canada: Cross-border sellers beware ".

The article examines divergent views on the issue of whether umbrella purchasers have a cause of action at Canadian law, and, as a result, identifies that a storm of umbrella damage claims may be in the forecast.

With or Without Prejudice?

August 25, 2017

A recent court decision in Ontario reminds us of the significant implications when communications are characterized as having been made "without prejudice". Such communications are generally precluded from being disclosed or referred to in any subsequent court proceedings. In contrast, no disclosure restrictions are imposed on communications falling outside the without prejudice classification. It is important for parties and their legal advisors to keep the distinction in mind at the time a communication is made.

21st century estate practice: Shrunken heads and sperm

August 1, 2017

Hollywood's vision of an estate solicitor sitting at their desk mulling fine points of tax law while sipping tea and drafting a will is so far from modern practice as to be laughable. One troubling issue for estate practitioners in the 21st century is the plethora of unique assets that have to be planned for, administered, and/or disposed of in a safe and permissible manner. An unscientific survey of our colleagues' experiences yields some useful tips for dealing with unusual assets.

Think That Arbitration Clause Applies? Think Again (and Think Fast!)

July 27, 2017

Many business contracts include broad arbitration clauses meant to apply to any issue related to the interpretation, application and operation of the contract. However, the decision in Allied Accounting v Pacey, 2017 ONSC 4388, released on July 18, 2017, shows that such clauses may be found not to apply in particular cases, depending on other clauses of the contract or the conduct of the parties.

Keeping it in the Family: A Recipe for Trouble for Corporations, a Recipe for Disaster for Expert Witnesses

July 25, 2017

Closely held corporations do not operate pursuant to a different statute than widely held corporations. Generally speaking, all corporations created pursuant to the same business corporation statute – whether controlled by a sole director, officer and shareholder, a 20-member board of directors or 100 shareholders pursuant to a Unanimous Shareholders' Agreement – have the same governance obligations and responsibilities. 

Sweeping Tax Proposals to Impact Private Corporations, Their Shareholders (including Family Trusts) and Post-Mortem Tax Planning

July 21, 2017

On July 18, 2017, becoming or staying an employee (particularly a government employee) became more attractive. That is the date the Trudeau government released the consultation paper that was promised in the 2017 Federal Budget regarding "the use of tax planning strategies involving private corporations that inappropriately reduce personal taxes of high-income earners." Draft legislation and explanatory notes for many of the proposals were also released with the consultation paper. The public has until October 2, 2017 to make submissions.

Personal Liability of Directors in Oppression Cases: The Supreme Court Clarifies the Applicable Criteria in Wilson v Alhareyeri

July 13, 2017

In Wilson v Alharayeri, 2017 SCC 39, released on July 13, 2017, the Supreme Court of Canada affirms the decisions of the lower courts holding two directors personally liable to pay compensation to a minority shareholder in an oppression case brought under section 241 of the Canada Business Corporations Act (CBCA). The Supreme Court's unanimous decision clarifies the criteria governing the imposition of personal liability on corporate directors in oppression cases.

Voulez-vous… Legal Services in French?

July 12, 2017

WeirFoulds litigation partner Marie-Andrée Vermette is a contributor to the July 2017 edition of Advocacy Matters, one of the newsletters produced by The Advocates' Society.

Pumping the Brakes: New Regulations Aim to Limit the Impact of Short-Term Rentals in Toronto

July 6, 2017

The rise of the "sharing economy" has spawned many new industries, but perhaps one of the most prominent (together with ride sharing) has been the explosion in "vacation rental by owner" services, led most prominently in Canada by Airbnb. These short-term rental platforms operate worldwide, generally without regulation. The City of Toronto (the "City"), however, is seeking to change this trend. On June 12, the City's Municipal Licensing and Standards division released a number of proposed regulations that could seriously impact the short-term rental market in Toronto. These regulations aim to increase the availability of permanent affordable rental housing by curbing the number of short-term rentals available, especially in the downtown core.

Rule of Law and the Ethical Lawyer

June 21, 2017

ICJC members are often required to distill everyday questions of law and practice through a prism of rule of law. We ask ourselves: would the proposed solution or decision advance or harm the rule of law in this country?

Bill 139, Building Better Communities and Conserving Watersheds Act, 2017

June 20, 2017

On May 30, 2017, Bill 139 passed first reading. Bill 139 would, among other things, continue the Ontario Municipal Board ("OMB") under the new name "Local Planning Appeal Tribunal" ("LPAT" or "Tribunal"), and amend the Planning Act to revise the jurisdiction and authority which the OMB had previously exercised.

A Warning to Contractors and a Lesson for Regulators: Enforcement and Penalties Under the Consumer Protection Act

June 12, 2017

Virtually every regulator engages in some form of consumer protection. Concerns relating to false billing, misleading advertising, and the failure to deliver products and services can be found in nearly every regulatory statute. The vigour with which regulators seek the most serious remedies relating to these consumer protection issues is, however, quite variable. In some cases, the media has criticized regulators for not revoking a registrant's registration when they have been found guilty of professional misconduct for false or misleading billings.

Canada's Anti-Spam Law Update: Private Right of Action Suspended

June 8, 2017

A private right of action under Canada's Anti-Spam Law (CASL) was scheduled to become law on July 1, 2017 (see recent WeirFoulds Newsletter, Canada's Anti-Spam Law has New Teeth on July 1, 2017). CASL generally provides that commercial electronic messages cannot be sent by organizations unless express or implied consent exists. Under the private right of action, organizations who breach CASL would be exposed to lawsuits for statutory damages equal to $200 for each breach to a maximum of $1,000,000 for each day of breach regardless of the amount of actual damages suffered.

The New Construction Act: Coming to a Jobsite Near You

June 6, 2017

For many years construction industry groups have been demanding changes in the law about payment on construction projects and how disputes are resolved.  In response, the Attorney-General has now introduced Bill 142, An Act to amend the Construction Lien Act, for first reading. If Bill 142 gets passed into law later this year, as expected, then the way contractors get paid for their work will change drastically in Ontario and anyone involved in the construction industry will be significantly affected.

Canada's Anti-Spam Law has New Teeth on July 1, 2017

June 2, 2017

On July 1, 2014, Canada's Anti-Spam Law (CASL) became law. Since that date the Canadian Radio-television and Telecommunications Commission (CRTC) has been responsible for enforcing CASL regarding e-mails and other electronic messages, and many organizations have struggled to understand CASL and comply with it.

Protecting Patients Act, 2017 passed by the Government

June 1, 2017

On May 30, 2017, Bill 87, Protecting Patients Act, 2017 (the Act), was passed by the government. The Act amends the Regulated Health Professions Act, 1991 (the RHPA) and five other health-related Acts. The Act addresses a number of the recommendations of the Task Force (Task Force) of the Minister of Health and Long-Term Care (the Minister) on the Prevention of Sexual Abuse of Patients and the Regulated Health Professions Act, 1991.

Panic in Wychwood Park?

May 24, 2017

On May 18, 2017, the Ontario Court of Appeal ("the Court") released its decision in Black v. Owen. The appeal concerned the enforceability of the appellants' legal obligation to pay an annual levy as their contribution toward maintenance costs for private roads and other common areas in Wychwood Park, a residential area within the City of Toronto. The payment obligation arose under an 1891 Trust Deed (the "Trust Deed") registered on title to the lands within Wychwood Park.

Fact Sheet: Changes to the Growth Plan for the Greater Golden Horseshoe

May 23, 2017

On May 18, 2017, the Government of Ontario released the updated Growth Plan for the Greater Golden Horseshoe ("Growth Plan"). The new Growth Plan will come into effect on July 1, 2017.  Municipalities are expected to review and update their official plans to conform with the updated Growth Plan by 2022.

Ontario Announces Proposed Changes to the OMB and the Results of the Coordinated Review of Four Provincial Land Use Plans

May 18, 2017

Over the past few days there have been a series of announcements from the province of Ontario regarding the introduction of legislation related to reforms of the Ontario Municipal Board (OMB), and the results of a coordinated review of the Growth Plan for the Greater Golden Horseshoe (GGH), the Greenbelt Plan, the Oak Ridges Moraine Conservation Plan and the Niagara Escarpment Plan. Please find details about both of these announcements below.

Tribunal Provides Guidance on Financial Abuse of Elderly

April 21, 2017

Canada has an aging population with more Canadians over the age of 65 than under the age of 15. As the population of older Canadians grows, so does the concerns for elder mistreatment, most commonly financial abuse. Despite this issue being a serious public health concern, the topic has rarely crept into the legal lexicon.

More recently, Law makers, regulators, and adjudicators have begun to turn their minds to financial abuse of older adults. Paving the way is Vice Chair Laurie Sanford ("VC Sanford") in the recent Licence Appeal Tribunal decision of 2138658 Ontario Ltd. o/a Seeley's Bay Retirement Home v. Registrar, Retirement Homes Regulatory Authority ("Seeley's Bay"). This is the first case to look at financial abuse in the context of the Retirement Homes Act, 2010 (the "Act").

Section 67 of the Act requires a licensee to protect residents from abuse by anyone. The regulation under the Act defines "financial abuse" as "any misappropriation or misuse of a resident's money or property". The Act is silent about loans from a resident to the licensee. The question of whether taking such a loan is financial abuse was central in Seeley's Bay.

Recent Decision Confirms that Notices of Claims Do Not Have a ‘Standard Form'

April 18, 2017

What constitutes a notice of claim? Parties to construction lawsuits often find themselves disputing whether a particular email or letter is a valid notice of a claim that complies with the notice provisions of their contract. While some contracts spell out exactly how a notice is to be prepared, sent and addressed; others are vague or silent on the issue. In light of the recent decision in Ledore Investments Ltd. v. Ellis-Don Construction Ltd., 2016 ONSC 5441, parties should be aware that courts are concerned more about whether notice was properly given rather than how it was given.

Residential Landlords Beware! Toronto By-law Creates Onerous New Obligations

April 6, 2017

On March 28, 2017, Toronto City Council adopted Agenda Item LS17.1, which authorizes the creation of a new by-law (the "By-law") to govern apartment buildings in Toronto, and creates significant new record-keeping and reporting obligations for residential landlords. The definition of "apartment buildings" is intended to apply to all purpose-built rental properties in Toronto with three (3) or more storeys and ten (10) or more dwelling units available for rent. It will not apply to long-term care facilities, licensed retirement homes, or co-operative housing, but will cover Toronto Community Housing buildings (with some small differences).

The proposed By-law will apply to an estimated 3,578 apartment buildings in Toronto. The By-law will come into effect on July 1, 2017, and according to Councillor Josh Matlow, City inspectors will have visited every building by the end of 2017.

Bill 68: Proposed Amendments Have Far-Reaching Implications

March 29, 2017

Bill 68, Modernizing Ontario's Municipal Legislation Act, 2017, received second reading and was referred to the Standing Committee on Social Policy on March 23, 2017. Bill 68 proposes a number of amendments to the Municipal Act, 2001, the Municipal Conflict of Interest Act and the Municipal Elections Act which could have a significant impact on how municipalities and their councils function.

Feds Not Just Blowing Smoke: Recreational Marijuana to be Legal by July 1, 2018

March 29, 2017

Less than twenty-four hours after being called out by a candidate for the leadership of the NDP, CBC News has reported that Prime Minister Justin Trudeau's Liberal government plans on introducing legislation in early April 2017 with the intention of legalizing recreational marijuana by July 1, 2018.

According to the CBC report, the new legislation will "broadly follow" the final recommendations of the Task Force on Cannabis Legalization, providing landlords and retail marijuana business owners with some clues as to what the final regulatory system will look like.

Robert Warren Co-Authors a piece for the Mowat Centre on Consumers' Interests in Ontario's Energy Sector

February 24, 2017

Robert Warren, a partner at WeirFoulds with a practice dedicated to public law advocacy, specializing in energy and environmental law, co-authored the piece Representing Consumers' Interests in Ontario's Energy Sector with Paul Sommerville, Executive Director of Mowat Energy.

Alleged Acts of Sexual Abuse Pre-Bill 87: Will Bill 87 Apply?

February 16, 2017

Bill 87 (the "Bill"), which contains significant amendments to the Regulated Health Professions Act, 1991 ("RHPA"),  passed first reading in the Ontario legislature in December 2016. Although the Bill is not yet law, if and when it is enacted, there will be some important changes to the way in which RHPA Colleges deal with allegations of sexual abuse.

Under the Bill, a broader scope of conduct will be considered sexual abuse, and more acts of sexual abuse will result in mandatory revocation. This raises the question: how should Colleges deal with allegations of sexual abuse when the events in question pre-dated these new amendments? Is the member subject to the old RHPA provisions, or might the new provisions apply to the allegations?

The answer? It depends. The law on the application of new legislative provisions to prior conduct is complex and often inconsistent. This bulletin outlines two situations in which this question is likely to arise but it is impossible to give an answer that encompasses every situation, and the discussion below will not apply to all scenarios. As always, Colleges would be wise to consult with legal counsel to determine the appropriate way to proceed in any particular case.

Bill 87: Government's Response to Recommendations of Sexual Abuse Task Force

February 7, 2017

On December 8, 2016, Bill 87, Protecting Patients Act, 2016, received first reading. If passed, Bill 87 will amend the Regulated Health Professions Act, 1991 (the RHPA) and four other health-related Acts. The amendments address a number of the recommendations of the Task Force (Task Force) of the Minister of Health and Long-Term Care (the Minister) on the Prevention of Sexual Abuse of Patients and the Regulated Health Professions Act, 1991.1 The purpose of this article is to provide the highlights of Bill 87.

This article addresses the following:

  • expanded powers of the Minister to make regulations
  • definition of patient
  • increased information on the register
  • interim suspensions
  • expanded list of acts constituting sexual abuse that must result in mandatory revocation
  • mandatory suspensions as a new minimum penalty for sexual abuse
  • elimination of gender-based restrictions
  • expanded duty to report
  • increased fines for failure to report sexual abuse

Medical Assistance in Dying ("MAID") from a Regulator's Perspective

January 25, 2017

The recent legalization of medical assistance in dying (also known by the abbreviation "MAID") is one of the most radical and significant changes to the Canadian health care system in the last century.

On December 7, 2016, the Minister of Health and Long-Term Care in Ontario introduced Bill 84, the Medical Assistance in Dying Statute Law Amendment Act, 2016.  If passed, Bill 84 will amend various provincial Acts in response to the federal legislation dealing with medical assistance in dying.

No Bidding Around: The Competition Bureau Targets Bid-Riggers in 2017

January 9, 2017

Over the past few years, we have written and presented extensively about how Canada's Competition Bureau has cracked down on price-fixing and bid-rigging in Canada's construction industry. In December of 2016, the Bureau announced that as a result of several recent discoveries of illegal bidding practices, it will be intensifying its efforts to identify and prevent bid-rigging, with a particular focus on provincial and municipal infrastructure projects.

The Intersection Between Form and Substance in Corporate Law

December 14, 2016

In its recent decision in Mennillo v. Intramodal inc., 2016 SCC 51 ("Mennillo"), the Supreme Court of Canada addressed, for the first time since 2008, the oppression remedy. At issue was whether a corporation's failure to comply with the strict requirements of the Canada Business Corporations Act (the "CBCA") in completing a share transfer was oppressive, even though the share transfer was agreed to and directed by the company's shareholders and directors.

The majority of the Court, in reasons for judgment penned by Cromwell J., found that the intention to transfer the shares effectively trumped any deficiencies in carrying out that intention.  There was a strong dissent, however, written by Côté J., who made an impassioned plea that courts not ignore statutory requirements or reward parties who do so.

Parental Recognition and Proposed Amendments to Ontario Legislation: Part 2

December 5, 2016

In February 2016, we wrote about the Cy and Ruby's Act (Parental Recognition), 2015, which proposed a number of amendments to statutes dealing with parental recognition.   We noted that the proposed amendments (the main amendments being to the Children's Law Reform Act ) dealt with various typical factual scenarios involving assisted reproduction with donated genetic material from a third party, surrogacy arrangements or the possibility that an intended parent's own genetic materials would be stored and used at a later time.  One of the goals of the proposed amendments was to facilitate the parental recognition of same-sex partners who rely on assisted reproduction for the conception and birth of children they intend to parent.  Indeed, one of the significant proposed amendments was the replacement of all references to "mother" and "father" with references to "parent". 

Sexual Abuse Task Force Recommendations: Why All Professional Regulators Should Pay Attention

October 27, 2016

WeirFoulds Partner Debbie Tarshis breaks down the recommendations in the recent released report from the Minister's Task Force on the Prevention of Sexual Abuse of Patients and the Regulated Health Professions Act, 1991 and explains why they affect all professional regulators.

The Challenges and Benefits of Distributed Energy Resources (DER) for Municipalities

May 16, 2016 | download

The growing interest in, and deployment of, distributed energy resources ("DER") has been thought to be of interest, albeit for different reasons, primarily to consumers and to local electricity distribution utilities. However, DER has important implications for municipalities, both in their capacity as the owners of those distribution utilities and as a means to promote both conservation and the development of contaminated properties.

Corporate Governance for Municipally-Owned Local Electricity Distribution Utilities

April 27, 2016 | download

Local distribution electricity utilities ("LDCs") have been a source of stable and predictable income for their municipal owners. That is in large measure a result of the fact that LDCs are providing a monopoly service overseen by a regulator charged with the obligation, among other things, to ensure the stability of the LDCs.

Estate Alert - Proposed Amendments to Ontario Legislation in Respect of Parental Recognition

February 11, 2016 | download

Bill 137 - An Act to amend the Children's Law Reform Act, the Vital Statistics Act and other Acts with respect to parental recognition, which is also known as Cy and Ruby's Act (Parental Recognition), 2015 - proposes a number of amendments to the statutes dealing with parental recognition.

Ten ways to protect your confidential information

December 27, 2013

In today's business world, confidential information such as customer lists, proprietary technology, pricing information, and marketing plans are critical business assets that can be compromised if not handled properly.

A prime area of exposure is departing employees who choose to work for a competitor. Risk also exists when confidential information is disclosed in order to negotiate a business deal, but the negotiation falls apart.

Client Newsletter - Spring 2013

March 11, 2013 | download

Test yourself with the land transfer tax quiz

December 23, 2011 | download

Books by WeirFoulds Lawyers

December 1, 2010

Books by WeirFoulds Lawyers

December 1, 2010

Books by WeirFoulds Lawyers

December 1, 2010

Co-Author, "Court Decisions That Puzzle us", 16th Annual Employment Law Summit, Law Society of Upper Canada, October 2015


Summary of Regulatory Approaches for Recreational Cannabis in Canadian Provinces and Territories

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