A recent Ontario Court of Appeal decision has affirmed the favourable Canadian approach to the enforcement of international arbitration awards under the United Nations Commission on International Trade Law Model Law. The court of appeal's restraint when asked to set aside and refuse to enforce an international arbitral award is consistent with recent cases, which have upheld the narrow circumstances in which courts can do so.
The Court of Queen's Bench of Alberta recently applied the principle of competence-competence in the context of a parallel litigation and arbitration dispute resolution procedure. As parallel dispute resolution procedures give rise to a complex interplay between the jurisdiction of the courts and arbitral tribunals, the case is an excellent example of the practical application of the principle and can serve as a useful tool for both domestic and international arbitration practitioners.
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.
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.
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.
Title insurance is now widely used in Canada in real estate financings because it provides two forms of protection - a duty to indemnify and a duty to defend.
Amendments to the Canada Transportation Act have provided the governor in council, effectively the federal Cabinet, with the flexibility to increase the foreign ownership limit on Canadian carriers from the existing level of 25% to a maximum level of 49%. It is suggested that the impetus for these amendments was specific recommendations made by the Competition Policy Review Panel in connection with the air transport sector.
The protection of consumers and air passenger rights continue to be hotly debated in Canada. This update provides a summary of proposed federal legislation, which is contained in Bill C-310 - An Act to Provide Certain Rights to Air Passengers. If passed, the law would apply to air carriers that operate a domestic service or an international service, including international charters.
A motion calling for a bill of rights modelled on the EU Air Passenger Bill of Rights recently received unanimous support in the House of Commons. Advocates for the Canadian Air Passenger Bill of Rights contend that legislation and regulations should be implemented to enhance consumer protection and force air carriers to compensate passengers when the services that they provide are not up to standard.
Disability discrimination legislation specifically applying to the air transport sector has been introduced in many countries. Canada’s legislation was recently tested and resulted in a landmark decision that requires certain Canadian air carriers to adopt a ‘one person, one fare’ policy for persons with a disability.
Recent amendments have been made to Canada’s insolvency laws to deal with the insolvency-related remedies provided for in the Cape Town Convention and the Aircraft Protocol. This update identifies certain technical issues with these amendments and considers how the recent legislation amending Canada’s insolvency laws attempts to address some of these issues.
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.
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.
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.
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 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.
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.
The Ontario Securities Commission recently prohibited Conrad Black from any activity that would enable him to direct or influence the management of a business required to comply with Ontario's securities laws. The decision demonstrates that the commission will adopt a broad approach to its interpretation of the Securities Act in order to protect investors and Ontario's capital markets.
Having abandoned the establishment of a separate venture issuer disclosure and governance regime, the Canadian Securities Administrators has published for comment proposed amendments to current disclosure and governance obligations intended to streamline and tailor disclosure requirements and to enhance the substantive governance requirements for venture issuers.
The Joint Forum of Financial Market Regulators recently assessed disclosure of mutual funds and segregated funds. The forum's view is that the current disclosure regime is inadequate. Specifically, it found that the current disclosure regime does not give meaningful information to fund investors before investors make purchase decisions.
The Canadian Securities Administrators recently enacted numerous changes to the continuous disclosure requirements applicable to reporting issuers in Canada. For example, the definition of the term 'venture issuer', which was created in order to identify smaller reporting issuers with a view to imposing a reduced continuous disclosure regulatory burden on those issuers, has been expanded.