Category: Litigation & Dispute Resolution

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Two Recent Decisions Affirm International Arbitration Clauses Will Be Enforced

February 22, 2018

Two recent decisions reinforce the willingness of Ontario courts to enforce arbitration clauses, apply the competence-competence doctrine and refer any disputes regarding an arbitrator’s jurisdiction to the arbitrator for resolution. The competence-competence doctrine is an internationally recognized principle that an arbitral tribunal has the power to determine its own jurisdiction. In Ontario, the doctrine has been enacted into both section…

Fight Against Corruption: Quebec Grants UPAC Greater Independence, Authorizes Agreements with Cooperating Witnesses

February 21, 2018

The recommendations of the Charbonneau Commission report filed in November 2015 continue to resonate within the Quebec legislative landscape. An Act to increase the jurisdiction and independence of the Anti-Corruption Commissioner and the Bureau des enquêtes indépendantes and expand the power of the Director of Criminal and Penal Prosecutions to grant certain benefits to cooperating witnesses (Act), implementing several of…

Canada’s Privacy Commissioner Recommends European-Style “Right to be Forgotten”

February 8, 2018

Recently, the Office of the Privacy Commissioner of Canada (OPC) released an important draft Position on Online Reputation (paper). The paper takes the position that current federal privacy legislation, the Personal Information Protection and Electronic Documents Act, SC 2000, c 5 (PIPEDA), entitles individuals to ask search engines to de-index web pages that contain inaccurate, incomplete or outdated information about…

What’s Next in Securities Litigation: Emerging Technologies and Industries

February 8, 2018

Emerging technologies and industries are reshaping securities litigation and enforcement in Canada. Cryptocurrencies and robo-advisers are challenging regulators and market participants alike. Recent moves towards consolidation in the cannabis industry have tested the new take-over bid regime, and new case law has implications for underwriters in securities class actions. Our panel of Capital Markets and Litigation & Dispute Resolution practitioners…

B.C.’s Bitumen Blockade: Selected Legal Options Available to Producers and Shippers

February 6, 2018

Recently, the Government of British Columbia released an announcement to consider a series of proposed measures to restrict the shipment of diluted bitumen from Alberta oil sands operations by rail or pipelines, setting the stage for a constitutional dispute. If the proposals are enacted, such regulations will directly engage federally regulated matters of interprovincial commerce as well as interprovincial trade…

IIROC and MFDA Statements of Priorities Show Continued Focus on Conflicts, Transparency and Cybersecurity in 2018

February 1, 2018

The Investment Industry Regulatory Organization of Canada (IIROC) and the Mutual Fund Dealers Association of Canada (MFDA) have each released statements of priorities for 2018. Taken together, and in conjunction with recently stated priorities of provincial securities regulators such as the Ontario Securities Commission, the statements illustrate that securities regulators will continue to focus closely on issues of conflicts of…

“Insider” Trading: Who Is an Insider?

January 31, 2018

The Ontario Court of Appeal’s decision in Finkelstein v. Ontario Securities Commission clarifies when a recipient of material, non-public information (MNPI) about a public issuer (a “tippee”) may be liable for insider trading or tipping. In particular, the court addresses when a person may be inferred to be in a “special relationship” with an issuer sufficient to ground liability. The…

Courts Issue Guidance for Litigation-Privileged Documents During Regulatory Investigations

January 30, 2018

Certain incidents at a worksite or industrial facility may trigger statutory reporting or investigative requirements. Companies may also want to conduct their own litigation-privileged internal investigation of the same incidents. Two recent Alberta and Saskatchewan cases provide guidance as to whether and when privilege can be claimed over internal investigation materials and when those materials must be produced to regulators….

Update on the OSC Whistleblower Program: Proposed Amendments Focus on Eligibility of In-House Counsel

January 25, 2018

The Ontario Securities Commission (OSC) adopted OSC Policy 15-601 – Whistleblower Program (Policy), creating its Whistleblower Program (Program) in July 2016. The Program is intended to encourage whistleblowers to report information on serious securities-related misconduct, including by offering monetary rewards to whistleblowers. This bulletin looks at two developments in respect of the Program, including a proposed amendment to the Program…

British Columbia Supreme Court Rejects “File, Smile and Certify” Approach to Class Actions

January 23, 2018

The British Columbia Supreme Court (Court) recently dismissed the plaintiff’s application for class certification in Ewert v. Nippon Yusen Kabushiki Kaisha (Ewert), holding that certification is not simply a “file, smile and certify” exercise in which defendants can be forced into onerous and complex class action litigation on a “wing and a prayer”, without meeting the low threshold required. The…

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