Canada updates

Arbitration & ADR

Attempting to consolidate arbitral and non-arbitrable disputes can compromise arbitration agreements
  • Canada
  • 28 March 2019

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.


Aviation

Contributed by WeirFoulds
Filing insurance certificates with Canadian Transportation Agency
  • Canada
  • 23 December 2020

Air carriers offering scheduled international services to or from Canada must, by virtue of the Canada Transportation Act, file proof of insurance each year as a condition of maintaining their licence. Historically, the Canadian Transportation Agency has, in some instances, allowed for leniency in the form of granting extra time for air carriers to file the proper certificates. However, a review of the agency's recent decisions demonstrates that such leniency is no longer being extended.

Should expert reports on Montreal Convention be allowed in challenge to APPRs?
  • Canada
  • 02 December 2020

Even before the first tranche of Air Passenger Protection Regulations (APPRs) provisions came into effect, the International Air Transport Association, Airlines for America and numerous Canadian and foreign air carriers commenced a challenge to the legality of several provisions in the Federal Court of Appeal (FCA). The FCA recently issued a decision in a motion brought by the government to strike portions of two expert reports filed by the airlines in support of their position.

Air passenger rights group challenges CTA statements on COVID-19 vouchers
  • Canada
  • 18 November 2020

In March 2020 the Canadian Transportation Agency (CTA) issued public statements suggesting that it could be reasonable for airlines to provide travel vouchers for flights cancelled as a result of the COVID-19 pandemic, rather than providing refunds. An advocacy group commenced an application for judicial review of the statements, asserting that they violated the CTA's Code of Conduct and misled passengers as to their rights. The Federal Court of Appeal recently dismissed the motion.

Transportation Appeal Tribunal of Canada unable to consider costs after withdrawal
  • Canada
  • 05 August 2020

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.

Passenger's fall due to unsteadiness not an accident under Montreal Convention
  • Canada
  • 22 July 2020

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.


Corporate Tax

Budget 2019: intensifying fight against tax evasion and new risks for tax professionals
  • Canada
  • 19 April 2019

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.

Federal government tables 2019 Budget: investing in middle class
  • Canada
  • 12 April 2019

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.

Continued erosion of taxpayer privacy
  • Canada
  • 22 February 2019

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.


Employment & Immigration

Canada Summer Jobs programme temporarily changed due to COVID-19
  • Canada
  • 22 April 2020

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.

Employee privacy issues during COVID-19 pandemic
  • Canada
  • 15 April 2020

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.

Government further expands wage subsidy for employers
  • Canada
  • 08 April 2020

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.

Workforce planning during COVID-19 pandemic: options for employers
  • Canada
  • 01 April 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.

COVID-19 and workplace government updates: cross-Canada review
  • Canada
  • 25 March 2020

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.


Franchising

Contributed by Lapointe Rosenstein Marchand Melançon LLP
Cutting the red tape: recent amendments to Ontario's franchise disclosure act
  • Canada
  • 24 November 2020

In 2017 the Ontario government enacted the Cutting Unnecessary Red Tape Act with the objective of alleviating unnecessary regulatory burdens for businesses. The act provided for a series of proposed amendments to Ontario's franchise disclosure legislation and ultimately came into force on 1 September 2020. The amendments include measures to clarify the province's franchise laws and temper or delay franchisors' disclosure obligations towards prospective franchisees in certain circumstances.

Surprise! Rescission notice can be served in a pleading
  • Canada
  • 22 September 2020

Ontario's Arthur Wishart Act (Franchise Disclosure) requires franchisors to provide adequate pre-contractual disclosure to potential franchisees, failing which a franchisee may be entitled to rescind its franchise agreement. When properly invoked, rescission by a franchisee imposes extensive obligations on the franchisor. The Ontario Court of Appeal recently dealt with the issue of whether a notice of rescission of a franchise agreement is valid if it is contained within a pleading.

'Special relationship' between franchisors and franchisees: could it give rise to a pre-contractual duty of good faith?
  • Canada
  • 14 July 2020

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.

Can good faith require parties to help each other properly exercise their rights?
  • Canada
  • 12 May 2020

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.

COVID-19 and the franchise landscape
  • Canada
  • 28 April 2020

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.