The Ontario Superior Court recently considered the application and operability of an arbitration clause in a subcontract in the context of a related claims proceeding under a related main contract. The case highlights the challenges involved in drafting pre-dispute arbitration clauses that will operate effectively when multiple claims arise between multiple parties under multiple contracts.
The British Columbia Court of Appeal recently declared a notice to arbitrate a nullity because it sought to commence four separate arbitrations against three different parties under four separate arbitration agreements. Practitioners and parties entering into multiple contracts relating to the same subject matter or project should consider whether it is desirable to have all potential disputes which arise under the multiple contracts arbitrated in one proceeding.
In a decision that is inconsistent with the weight of Canadian and international jurisprudence, the Court of Queen's Bench of Alberta recently ordered the consolidation of arbitration proceedings without the consent of all parties. For now, parties and practitioners should be aware that arbitrations seated in Alberta may be subject to consolidation without consent.
The Ontario Court of Appeal recently interpreted when an international commercial arbitration award becomes binding on the parties for the purposes of judicial recognition and enforcement of foreign arbitral awards. It held that the determination of whether an award is binding pursuant to Articles 35 and 36 of the United Nations Commission on International Trade Law Model Law rests with the court rather than the arbitral tribunal.
The Federal Court of Canada recently upheld a Transportation Appeal Tribunal of Canada (TATC) decision which had found that the TATC did not have jurisdiction to accept submissions regarding the legal costs of an air carrier's application for a review of an administrative monetary penalty issued by the Canadian Transportation Agency. The court held that as the penalty had been unilaterally withdrawn by the agency prior to the TATC hearing, the TATC did not have jurisdiction to deal with the question of costs.
The British Columbia Civil Resolution Tribunal (BCCRT) recently ruled in favour of an air carrier, dismissing a passenger's claim for compensation arising from an alleged fall sustained while exiting the aircraft. In its decision, the BCCRT considered and opined on what constitutes an 'accident' under Article 17 of the Montreal Convention. This decision also provides helpful guidance on the evidentiary requirements in personal injury cases.
Air Canada, WestJet, Air Transat, Sunwing, and Swoop are facing a proposed class action for offering vouchers and credits in lieu of refunds for flights that were cancelled due to the COVID-19 pandemic. It remains to be seen whether a class action with such a wide scope – as opposed to a government bailout or coordinated response from regulators – will be considered the most efficient way to deal with the claims of those whose flights have been cancelled due to COVID-19.
The minister of transport recently issued an interim order regarding the denial of boarding to foreign nationals on international flights to Canada and a health check that air operators flying to Canada must conduct prior to boarding. This article summarises the interim order's key points.
In 2019 the Canadian federal government took steps to address barriers for persons with disabilities, including the introduction of the Accessible Canada Act. In this context, the Accessible Transportation for Persons with Disabilities Regulations – which target federal agencies and federally regulated industries, including aviation – were finalised and published in July 2019. The service requirements applicable to Canadian and foreign carriers will come into force on 25 June 2020.
In Budget 2019 the federal government has continued to bolster its tools and resources to detect and prosecute tax evasion. As such, several measures have been proposed, including a C$150.8 million investment over the next five years to fund new initiatives. More so than ever, tax professionals should be well acquainted with various definitions to ensure that their client services and advice cannot be construed as the commission or facilitation of a criminal offence.
The minister of finance recently tabled the 2019 Budget. As a pre-election budget, the government appears to have shied away from tax measures that could receive negative backlash from the business community. Among other things, the government is proposing to expand the foreign affiliate dumping rules to apply to Canada-resident corporations that are controlled by non-resident individuals or trusts.
The Canadian Broadcasting Corporation recently reported that the Canada Revenue Agency has transferred more than 1.6 million Canadian banking records to the US Internal Revenue Service since the intergovernmental agreement for the enhanced exchange of tax information under the Canada-US Tax Convention was entered into in 2014. The agreement provides lengthy and detailed rules with respect to the information that the Canadian government must transfer to the United States.
Earnings within tax-free savings accounts (TFSAs) and other tax-deferred plans are, in principle, supposed to grow tax free. However, some taxes still apply, including the advantage tax which applies at the rate of 100% of any 'advantage' (as defined in the Income Tax Act). This tax has become one of the Canada Revenue Agency's favourite tools to effectively expropriate what it views as improperly boosted returns within a TFSA.
The Federal Court has made a strong statement against an interpretation of the Canada Revenue Agency's (CRA's) powers that would allow almost unlimited invasions of taxpayer privacy. The force with which the court rejected the self-serving interpretation advanced by the CRA should be encouraging for taxpayers. The case serves as an important reminder that the CRA cannot act outside the bounds of law and that it is the courts, and not the CRA, that interpret the law.
The federal government has announced temporary changes to the Canada Summer Jobs programme in an effort to encourage youth employment during the COVID-19 pandemic. The government projects that the earmarked C$263 million in funding will create up to 70,000 jobs for young people. The temporary changes include increasing the wage subsidy for private and public sector employers and allowing employers to hire staff on a part-time basis.
Employers that are continuing operations during the COVID-19 pandemic must take reasonable steps to protect the health and safety of their workers. In order to do this, employers may need to ask employees some personal questions about their health status or conduct health assessments. However, privacy laws continue to apply. This article provides information about various privacy law issues that may arise when employers request personal health information from employees.
The government recently announced that employers which experience a COVID-19-caused revenue loss of at least 30% will be eligible for a subsidy of up to 75% of each employee's wages. According to the oral announcement, the subsidy will, among other things, extend to charities, non-profit organisations and large and small businesses, apply to the first C$58,700 earned per employee and be retroactive to 15 March 2020.
The COVID-19 pandemic has caused disruptions and slowdowns in almost all industries. The situation is fluid and government, business and social responses have and must be dynamic. This article discusses the options available to employers outside Quebec to manage the unexpected downturns and, if necessary, reduce their labour force. All of the options may create risks, including circumstances where an employee could allege constructive dismissal and claim termination entitlements.
Governments across Canada have recently made multiple announcements regarding the coronavirus (COVID-19) pandemic. To help make things easier for employers, this article summarises the announcements from all provinces that touch on workplace issues. Common issues concerning COVID-19 include self-isolation, sickness benefits and layoffs.
Common law jurisdictions recognise that certain circumstances could arise that would lead contracting parties to have some type of pre-contractual good-faith obligation, including where they have a 'special relationship' – typically characterised by an imbalance of information. A franchise arrangement has been characterised as an example of such a special relationship that could fall within the narrow set of particular requirements for good faith in the pre-contractual context.
It is well known that franchisors have been facing increasing pressure to conduct themselves in accordance with the principles of good faith. A recent Ontario Superior Court case has led to questions with respect to a franchisor's duty to protect its franchisee's right to operate in circumstances where the franchisor is the gatekeeper of rights with respect to a third party. In its decision, the court navigated the duty of good faith owed in respect of the renewal of a head lease between a franchisor and a landlord.
While some franchised businesses have transitioned to working remotely and have ramped up their e-commerce business models in light of the COVID-19 pandemic, the vast majority of traditional franchised businesses are in a precarious state due to a drastic reduction in revenues and uncertain economic conditions for the foreseeable future. This article sets our practical tips and considerations for franchisors and franchisees with respect to navigating COVID-19.
Few areas of contract law have created as much confusion as the nebulous distinction between material breaches, substantial breaches and breaches going to the root of the contract. This distinction is important in a franchise context, where franchise agreements often provide that the franchisor has a right to terminate the franchise agreement for material breach by the franchisee, leaving what constitutes a 'material' breach open for interpretation.
In recent years, many Canadian provinces have adopted franchise-specific disclosure laws with a view to remedying the inequality of bargaining power between franchisors and franchisees. Subject to certain limited exemptions, franchisors must provide prospective franchisees with full and accurate information in respect of all material facts relating to the franchise business before entering into a franchise agreement, failing which franchisees can bring a claim for rescission and damages against the franchisor.