Canada updates

Arbitration & ADR

Contributed by Borden Ladner Gervais LLP
Stay out of it – sophisticated parties can contract out of arbitration legislation
  • Canada
  • November 30 2017

The Supreme Court of Newfoundland and Labrador recently dismissed an application by the province under Sections 14 and 34(2)(a)(iii) of the Arbitration Act. The court held that the parties had legally contracted out of the act, narrowing the circumstances in which a court could set aside an arbitral award. The decision furthers the general theme of recent Canadian jurisprudence, which has emphasised party autonomy and deference to reasonable arbitral decisions.

Justin Bieber tweets and an international arbitrator listens: court refers defamation claim to arbitration
  • Canada
  • June 22 2017

The Quebec Superior Court recently held that a party promoter's claims of defamation and breach of contract against Justin Bieber were subject to an arbitration clause entered into between the promoter and the pop star's agent. The decision sets out the factors that Canadian courts will consider when deciding whether a sufficient agency relationship exists in order to bind a third party to an arbitration agreement.

Ontario court recognises arbitral award and confirms narrow scope of public policy defence
  • Canada
  • February 23 2017

The Ontario Superior Court of Justice recently issued another decision in the ongoing saga on the enforcement of arbitral awards against the Kyrgyz Republic by various arbitral creditors. Consistent with the United Nations Commission on International Trade Law Model Law and previous case law, the decision confirms that only the most egregious circumstances will warrant a refusal to recognise an arbitral award for public policy reasons.

Court of appeal gets to the right result – but for the wrong reasons
  • Canada
  • December 01 2016

The Ontario Court of Appeal recently confirmed a decision of the Ontario Superior Court of Justice staying an action commenced by Novatrax International Inc against a German company with which it had contracted, on the basis of a commitment to arbitrate in the contract. The court characterised the arbitration agreement as a 'forum selection clause' and applied a conflicts of law analysis based on forum non conveniens.

Ontario court confirms narrow grounds for setting aside NAFTA award
  • Canada
  • September 15 2016

In a recent decision dismissing a petition to set aside an arbitral award, the Ontario Superior Court of Justice affirmed Canada's commitment to the arbitral process as a final, binding method of dispute resolution, and reiterated the limited ability of arbitral debtors to set aside an award under Section 34(2) of the Commercial Arbitration Code.


Aviation

Contributed by Bersenas Jacobsen Chouest Thomson Blackburn LLP
Changes to flight attendant manuals must have reasonable basis
  • Canada
  • October 11 2017

The minister of transport recently appealed a judicial review brought by the Canadian Union of Public Employees. At issue was a change in Sunwing's operating procedures relating to its staffing of flight attendants and whether the change would compromise the safety of passengers and crew members. The Federal Court concluded that ministerial approvals under the Canadian Aviation Regulations require a substantive review of the safety implications of a request, which did not occur in this case.

Court rules that carrier and ground handler need not be added as parties to complaint
  • Canada
  • July 05 2017

A complaint regarding the provision of passenger assistance services named neither the carrier nor the ground handling company as a respondent. Instead, only the Greater Toronto Airports Authority (GTAA) was named. The GTAA asked the Canadian Transportation Agency to dismiss the complaint against it or add the carrier and the service provider as co-respondents to the complaint; however, its request was denied.

Claim for privilege over contents of cockpit voice recorder denied
  • Canada
  • March 29 2017

In a motion brought before the British Columbia Supreme Court, six aircraft passenger plaintiffs sought an order granting them access to the audio data from a cockpit voice recorder, as well as a partial transcript of that data. The Transportation Safety Board did not oppose the request for access, but appeared before the court to explain the enabling legislation and the policy reasons for the statutory privilege that pertains to such recordings.

Fuel surcharge class action for international tickets certified
  • Canada
  • March 08 2017

The Quebec Superior Court recently authorised a class action brought against Air Canada seeking reimbursement of amounts paid to it as a fuel surcharge when purchasing tickets for international carriage. The court dismissed the arguments that it did not have jurisdiction to hear the case and that the representative plaintiff did not meet the requirements for certification.

Helicopter pilot fails in constructive dismissal case
  • Canada
  • December 14 2016

In a recent case, the Supreme Court of British Columbia considered whether a helicopter pilot had been instructed to falsify his flight logs. It held that the issue could be reduced to which party's version of events was accepted and ruled in favour of the employer, finding its testimony to be straightforward, forthright and professional – in contrast to the pilot's vague and unconvincing responses.


Banking

Does offshore banking confidentiality hold up in Canadian courts?
  • Canada
  • June 02 2017

Some jurisdictions' laws make it a criminal offence for banks to disclose client information. If a bank becomes involved in Canadian proceedings, those foreign laws may conflict with the disclosure obligations imposed on litigants in Canada. This raises questions about when foreign law can provide a basis to excuse production or refuse the answering of a question in Canadian proceedings, and under what circumstances a Canadian court will compel disclosure despite potential foreign legal jeopardy.

FCAC reinforces express consent expectations
  • Canada
  • May 26 2017

The Financial Consumer Agency of Canada (FCAC) has issued a statement and a new compliance bulletin in response to recent allegations that certain employees of banks were pressured to upsell to consumers. The bulletin states that its purpose is to reinforce FCAC expectations that federally regulated financial institutions obtain consumers' express consent for new products and services in accordance with regulatory requirements.

Budget 2017 – financial services highlights
  • Canada
  • May 19 2017

The government recently tabled its 2017 Budget. The financial services proposals are aimed at facilitating a more resilient financial sector, a modernised deposit insurance framework that continues to protect the deposits of Canadians and promote financial stability and increased powers to combat money laundering and terrorist financing.

The saga of the unnamed bank: FinTRAC statement
  • Canada
  • March 17 2017

In April 2016 the Financial Transactions Reports Analysis Centre (FinTRAC) levied a penalty of over C$1 million against a Canadian bank, but failed to name the bank in question. The director of FinTRAC recently released a statement expressing that the message of deterrence was effective despite the decision not to publicise the bank's name. However, he acknowledged that withholding the name of the bank may not have met public expectations in relation to openness and transparency.

Financial services regulatory: key developments to watch in 2017
  • Canada
  • January 20 2017

Financial services regulation continued to be busy in Canada in 2016. Pending changes, developments and consultations to watch in 2017 include the new draft guidelines from the Office of the Superintendent of Financial Institutions, draft guidance from the Financial Transactions and Reports Analysis Centre of Canada and the possible review and revision of the Bank Act financial consumer protection framework.


Capital Markets

CSA amends early warning reporting requirements
  • Canada
  • March 29 2016

The Canadian Securities Administrators announced amendments to the early warning reporting regime which will apply where a party's total holdings of a reporting issuer's securities reaches 10% or more. Under the amendments, once a shareholder reaches the 10% threshold it must issue and file a press release and file a report within set timeframes.


Company & Commercial

Can companies escape liability for unreasonable termination?
  • Canada
  • October 31 2016

A recent Ontario Court of Appeal decision recognised the enforceability of an exclusion of liability clause when a contractual termination was considered by the court to be unreasonable, but not in bad faith. The case is an important example of the flexibility allowed by the courts regarding the exercise of discretionary termination rights in the context of a long-term contractual relationship.

Knock knock: are you prepared for a search warrant?
  • Canada
  • August 15 2016

Search warrants have become a common means of obtaining evidence from businesses in all industries. Consequently, many businesses are being forced to deal with these warrants in haste, without sufficient knowledge of their immediate impact on business operations. In light of this, an understanding of what can be done to protect employees and business operations in all provinces and sectors is vital.