A. DIGESTED ARTICLES

Anti Spam: Are We Witnessing the Death of Refer-a-Friend in Canada?

The controversial Anti-Spam Bill, Bill C-27 (which underwent second reading and was referred to the Standing Committee on Industry, Science and Technology on May 8, 2009) appears to create a general prohibition against the typical "refer-a-friend" mechanism commonly used in contests/promotions (i.e., where an entrant provides an e-mail address to the sponsor who in turn sends an e-mail - or makes it appear that an e-mail has been sent by the entrant - to the referred friend with a link to enter the contest). This article discusses the Bill and provides exceptions to the appearance of a general prohibition.

Competition Bureau: Consumer Rebate Promotions

The Competition Bureau has released its draft bulletin, The Application of the Competition Act, the Consumer Packaging and Labelling Act and the Textile Labelling Act to Consumer Rebate Promotions. The bulletin explains the Bureau’s approach to interpreting what is considered false and misleading in the area of consumer rebate promotions. Further details of the bulletin are provided in this article.

Check Here Before You make that Health Claim

The Food Directorate of the Ministry of Health (Canada) has released the Guidance Document for Preparing a Submission for Food Health Claims which sets out standards for advertising involving health claims for foods which standards, as discussed in this article are obligatory in certain circumstances.

Corporate Income Tax Rate Reductions in Canada: 2009 Provincial Budgets

In recent years and in response to global pressures, the Canadian Federal Government, introduced significant reductions in corporate tax rates and publicly challenged the provinces to lower their general corporate income tax rates as well. This article examines this process, the announced future rates, federally and the provincial responses with respect to the reduction of corporate tax rates.

Permanent Establishment in Canada: Why Multinationals Should Be Concerned

On January 1, 2010, the new service provision of the 5th Protocol to the Canada-US tax Convention will come into force. This article discusses the new provisions that may result in an enterprise in one state providing services in the other state in which it does not have a permanent establishment being deemed to have a permanent establishment in the other state with the resulting risk of being liable for taxation.

Draft Rules for Federal Greenhouse Gas Offset System Released

This article describes in some detail the recently released new draft rules and guidance published by Environment Canada to develop and implement a proposed Offset System for Greenhouse Gases i.e. the rules for establishment of tradeable credits.

U.S. Legislation On Clean Energy

This article provides a high level summary of amendments to key provisions presented in the draft American Clean Energy and Security Act (the Bill) as well as additions to the Bill. In addition, the article includes for each sub-heading in the Bill, a note on programs and incentives that have been announced as at mid-June.

Certification Refused of Proposed $500 Million Overtime Class Action Against CIBC

The Ontario Superior Court recently dismissed the plaintiffs' certification motion in the much publicized "tellers" proposed overtime class action against CIBC, effectively bringing the class action lawsuit to a grinding halt. The claim and the impact of the decision with respect to other class action suits are explored in this article.

Municipalities, Tax and the Green Energy Act (Ontario)

Municipalities have welcomed certain changes to Ontario’s Green Energy and Green Economy Act, 2009 which allow them to engage directly in certain electricity generation activities that have been previously denied to them. The changes and a resulting potential tax trap are discussed in this article.

Release of the Draft Regulations and FIT Contract to be Established Pursuant to the Green Energy Act (Ontario)

Through recently released draft regulations, the Ontario Ministries of Natural Resources and the Environment will aim to administer their processes in a co-ordinated fashion with a view to integrating all provincial Ministry requirements for the review and approval of renewable energy projects, as will be required by the Green Energy and Green Economy Act, 2009 (the GEA). Also pursuant to the GEA, the Minister of Energy and Infrastructure (Ontario) may direct the Ontario Power Authority to develop a feed-in tariff (FIT) program that is designed to procure energy from renewable energy sources. The draft regulations and FIT program are examined in this article.

An Overview of Alberta's Land Stewardship Act

This article summarizes highlights in the Land Stewardship Act (Alberta) which received royal assent in June 2009 including among other matters provision for municipal plans and conservation easement enablers.

Crown's Duty to Consult Aboriginal Peoples Revisited

The Federal Court in the case of Brokenhead Ojibway Nation v Attorney General of Canada has revisited the Crown’s duty to consult Aboriginal Peoples with respect to infrastructure projects crossing their territory. This case comment reviews both prior case law on the subject as well as the Brokenhead decision and its impact.

Vendor Obligations With Respect to Rights of First Refusal

This article discusses a recent Alberta decision (Bearspaw Petroleum Ltd. V Conoco Phillips Western Canada Ptp) which confirms the principle that in selling an interest which is subject to a right of first refusal (ROFR), a vendor must act in good faith and avoid taking actions which cause the rights of the ROFR-holder to become meaningless.

The Environmental Enforcement Act (Canada)

The Environmental Enforcement Act (Canada) which received Royal Assent on June 18, 2009 sets minimum fines for serious environmental offences of between $5,000 for individuals and $500,000 for corporations. The Act also raises maximum fines to as high as $6 million. More details on the Act are provided in this article.

Ontario and Québec Legislation Enabling Cap-and-Trade

The Ontario and Québec governments have introduced legislation to enable their respective provinces to establish greenhouse gas cap-and-trade systems. The legislation would enable those provinces to act in concert with the members of the Western Climate Initiative, which involves seven U.S. states, British Columbia and Manitoba.

Ontario's Toxic Reductions Act

The Toxic Reductions Act was passed by the Ontario Legislature on June 3, 2009. A regulated facility would be subject to a requirement to have a toxics reduction plan. Whether the enterprise is regulated would depend on whether its facility is in a prescribed class of facilities; whether the number of persons at the facility meet the prescribed number of persons set by regulation; and whether a substance used or created at the facility and the amounts of that substance meet the criteria prescribed by the regulations; as well as any other criteria which may in the future be prescribed by regulation.

Court Clarifies Rescission Rights Under Ontario's Franchise Law

Soon after the passage of Ontario's franchise legislation, The Arthur Wishart Act (Franchise Disclosure), 2000 (Act), lawyers began to debate the distinction between the 2 statutory remedies available to a franchisee when there has been non-compliance with the disclosure requirements under the Act. Recent Ontario court decisions have now clarified a franchisee's right to rescind under the Act where the franchisor has provided a deficient disclosure document. The decisions, discussed in this article, demonstrate the necessity of strict compliance with the disclosure obligations imposed upon franchisors under the Act so as to enable prospective franchisees to make an informed investment decision.

Accessibility for Ontarians with Disabilities

Two regulations under the Accessibility for Ontarians with Disabilities Act, 2005, (AODA) came into force on January 1, 2008. TheAccessibility Standards for Customer Service Regulation (Standard) outlines the requirements of the Standard and the Exemption from Reporting Requirements Regulation exempts organizations with fewer than 20 employees from some documentation requirements under the Standard, unless the organization is a designated public sector organization. This article outlines what businesses should do to comply with these regulations.

Foreign Investment in Canada Just Got More Complicated

This article describes and discusses the three significant developments in the foreign investment landscape in Canada which occurred on July 17, 2009: the commencement of legal proceedings against U.S. Steel over its alleged breach of undertakings given in connection with the acquisition of Stelco, the completion by China's sovereign investment fund, China Investment Corporation (CIC), of its $1.5 billion investment in Teck Resources and the authorization by the Chinese Government of a state-owned enterprise to invest $240 million in Consolidated Thompson Iron Mines Limited.

Canada Not-for-Profit Corporations Act

On June 23, 2009, the Canada Not-for-Profit Corporations Act (which includes provisions applicable to Special Act corporations) was given Royal Assent. This article provides a detailed summary of the legislation under the following headings: Coming Into Force Information, Corporations Created by Special Act of Parliament, Power of a Natural Person, A Streamlined Incorporation Process, Improved Corporate Governance, Improved Financial Accountability and Corporate Finance, Directors, Enhancement and Protection of Members’ Rights, Director of Corporations Rights and Obligations and Special Act Bodies Corporate. A federally incorporated non-profit corporation will need to continue under the new Act within 3 years of the statute coming into force (which date has not yet been announced), failing which it may be dissolved.

Canada Imposes Visa Requirement on Mexican and Czech Nationals

These articles discuss the July 14, 2009 announcements that Canada will require, respectively, Mexican and Czech citizens travelling to Canada to obtain an entry visa, officially known as a Temporary Resident Visa (TRV). Prior to this announcement, Mexican and Czech citizens could simply hop on a plane and travel to Canada without an entry visa.

New Information Regarding Labour Market Opinions

As of May 19, 2009, all Labour Market Opinions (LMOs) issued by Service Canada must be used within 6 months of issuance. The new rule also sets out that all LMOs issued prior to May 19, 2009 will expire by no later than November 19, 2009. In addition, Service Canada announced in April that an extension application for an LMO will be treated the same as a new application. The application form to extend a LMO has been removed from circulation. The details with respect to these changes are described in the first two linked articles, and advice for dealing with the changes is set out in the third linked article.

New Canadian Citizenship Law

The amendment to the Citizenship Act (Canada) which came into effect on April 17, 2009 restored citizenship to those who lost it due to wording in the legislation before it was amended. To raise awareness of the new law, Citizenship and Immigration (Canada) has released a video Waking Up Canadian available at the link below.

Canadian Securities Administrators Registration Reform Update

On June 12, 2009, the Canadian Securities Administrators (CSA) published CSA Staff Notice 31-311 (Staff Notice) to provide those in the business of trading and advising in securities with guidance concerning the transition from the existing registration rules to the new registration regime proposed under National Instrument 31-103 Registration Requirements and Exemptions. This article provides information with respect to the contents of the Staff Notice.

Launch of Canadian Securities Regulator Transition Office Announced

On June 22, 2009, the Minister of Finance for Canada announced the launch of the Transition Office with the mandate to ensure an effective transition to a national securities regulator. The Transition Office will lead and manage all aspects of the transition, including developing a federal Securities Act, collaborating with provinces and territories, and developing a transition plan to address organizational and administrative matters. The Transition Office commenced operations on July 13, 2009 and, in consultation with an Advisory Committee of participating provinces and territories, is expected to deliver a transition plan within one year, which will require the approval of the governments of such provinces and territories.

Canadian Securities Administrators - National Instrument 31-103 - Registration Requirements and Exemptions

On July 17, 2009 the Canadian Securities Administrators (CSA) published in final form National Instrument 31-103 Registration Requirements and Exemptions (Rule), its related companion policy and other related rules and amendments expected to come into force on September 28, 2009. These instruments harmonize registration requirements across all CSA jurisdictions and the Rule will constitute the primary instrument for regulating dealer, adviser and fund manager registration requirements. This series of five articles summarize the instruments in detail, including significant changes to the registration regime in Canada introduced by the Rule, a new requirement for investment fund managers to be registered, the introduction of a new category of registered dealer who exclusively trades in securities where no prospectus is required (the exempt market dealer), the removal of exemptions from dealer registration requirements and the repeal of the international dealer registration category and accredited investor registration exemption.

The Québec Stock Savings Plan II: It is Now Easier To Take Advantage

From June 30, 2009, it has been easier for small and medium business enterprises (SMEs) in Quebec to take advantage of the Québec Savings Stock Plan as the qualifications have been broadened and the application process streamlined. The advantageous changes are detailed in this commentary.

Increased Scrutiny of Retirement Plans Means Increased Risk of Personal Liability

In these times of unprecedented economic upheaval and restructuring, employer-sponsored retirement plans have moved to centre stage in the business world. As one might expect, given the potential for losses to the various stakeholders, more and more plan sponsors and administrators are being questioned about the past, present and future administration of the plans they sponsor and administer. This increased scrutiny results in increased legal risk for those involved in plan governance and plan administration. This article breaks down the areas of risk, the methods of challenge faced by plan sponsors and administrators, the potential penalties and offers the author's views on the best defence by plan administrators against attack.

Proposed Changes to the Canada Pension Plan

This article highlights changes proposed recently by the federal, provincial and territorial Ministers of Finance intended to modernize the Canada Pension Plan and scheduled to be implemented in 2011.

Canada Losing Biotechnology Companies and Employees

Recently, Public Policy Forum, an independent organization that promotes policy choices in Canada, convened a roundtable discussion on the future of biotechnology in Canada. During the meeting BIOTECanada launched its blueprint for Canada to become the world's leading bio-economy. Information from the roundtable discussion is provided in this article.

In an Economic Downturn Biotechnology Companies Should Consider Intangible Migration

The current downturn in the global economy has had a dramatic impact on several industry sectors including the biotechnology sector. This new economic environment makes it understandably difficult for companies to contemplate the implementation of long term tax strategies, when the focus is strictly on meeting profitability targets. Given that a corporation must function as a going concern, corporations owe it to their shareholders and other stakeholders to engage in strategies which maximize short term operations and long term value. One such relatively inexpensive strategy which is discussed in this article and which serves to minimize the level of global taxes a corporation must pay, involves intangible migration, including technology and other intellectual property (IP) transfers.

The Elusive Exemption from Taxation on Investment Income under the Indian Act (Canada)

This case comment on the Federal Court of Appeal decision in Bastien traces the history of the narrowing by the courts since the vote was given to all First Nations adults of the exemption from taxation enjoyed by status first nations culminating in Bastien in which investment income of a status Indian was declared to be subject to taxation.

Tax Considerations in the Trading of Carbon Credits

This article, the first of three, provides general comments on the Carbon Credit Market and the tax consequences of the initial allocation of emission allowances.

Tax Considerations in the Purchase and Sale of Carbon Credits

This second article further addresses certain tax considerations for a buyer and seller of emission allowances and Carbon Credit and provides a more detailed analysis of the tax treatments of buyers and sellers.

Financial Transactions and Commodities Related to Carbon Credits

If a market participant is engaged in a trading business, the analysis of the tax consequences of the purchase and sale by it of Carbon Credit instruments would most likely be similar to the analysis of the tax consequences of any other commodity trading activity. The tax treatment of the purchase and sale of emission allowances and Carbon Credits is discussed in this final article in the series on the taxation aspects of trading in Carbon Credits.

Canada's Home Renovation Tax Credit

This article discusses the Home Renovation Tax Credit (the HRTC) proposed as part of the 2009 Federal Budget. The HRTC is a non-refundable tax credit for work performed or goods acquired in respect of a dwelling unit that is owned and used personally by a taxpayer or by the taxpayer's spouse, common-law partner or children. A discussion of the calculation of, and eligibility for, the HRTC is also provided.

Investing in Yourself - Certain Qualified Investments for Self-Directed RRSPs

An alternative source of funding for small and medium-sized businesses is investment by self-directed registered retirement savings plans (RRSPs). A self-directed RRSP is a retirement savings plan in which the person funding the plan directs the investment of the fund. As discussed in this article, the Income Tax Act (ITA) allows investment by these self-directed RRSPs in certain "Qualified Investments".

Facebook and Usernames - What's Next?

Following Facebook's allowing trademark users to take action to prevent "name squatting" in June, 2009 (discussed here), there are now further actions that can be taken and should be considered.

Commercial Truck Operation in Ontario Just Got More Complicated … New Speed Limiter Law

Speed Limiters are now mandatory for commercial vehicles manufactured after 1994 with a gross vehicle rating of over 26,000 lbs. (11,794 kg.). Details of the maximum speeds under and expiry of the enforcement holiday are detailed in this article.