News & Publications Archive

This paper discusses contract law issues including decisions of relevance to commercial lawyers and business leaders giving a snapshot of particular principles of interest that arose in case law over the past 12 months.

In yet another indication of the increasing prominence of water use issues in BC, the Supreme Court of British Columbia recently upheld the practice of the BC Oil and Gas Commission to grant recurrent short-term water approvals for oil and gas activities under the Water Act. In Western Canada Wilderness Committee v British Columbia (Oil and Gas Commission), 2014 BCSC 1919, (a case we first reported on here) the petitioners, Western Canada Wilderness Committee and Sierra Club of British Columbia Foundation, alleged that the Commission’s practice of granting recurrent short-term water use approvals to the same oil and gas companies for the same location was in violation of the Water Act. The Court disagreed, holding that there was nothing illegal about the Commission’s practice of evaluating each successive application for an approval on a fresh basis and according to established criteria.

Read more here.

David Allard was quoted in the National Post examining the resurgence in Western Canada’s forestry sector. 

Lawson Lundell LLP is pleased to welcome Tamela (Tammy) Coates, a leading litigator, as a partner based in the firm’s growing and active Calgary office.
 

Tammy brings more than 25 years of experience advising clients in a wide variety of commercial disputes and with respect to risk and reputational management. In particular, she advises clients in the energy, telecommunications, financial and professional services sectors regarding complex claims involving commercial, environmental, and intellectual property issues. She has extensive experience acting as counsel to numerous major energy companies with respect to upstream and commercial disputes, and landowner claims regarding water, soil, vegetation, and air contamination, including media and reputation management.

“We are so pleased to welcome Tammy to our Calgary office where she will play a leadership role in expanding our litigation and dispute resolution practice in Calgary, and supporting our strong litigation practice group across western Canada and the North,” said Valerie Mann, Managing Partner at Lawson Lundell. “Tammy’s significant experience will be of tremendous value to our clients in Alberta and operating in other jurisdictions across western Canada.”

Tammy has appeared before all levels of the Alberta Courts, and before the B.C. Supreme Court and the Federal Court of Canada. She is recognized by Chambers Global as a leading lawyer in the area of Dispute Resolution: Alberta and by Benchmark Litigation as a Local Litigation Star (Alberta) and a Litigation Star (Canada). Tammy is also a recipient of the Queen Elizabeth II Diamond Jubilee Medal and was awarded the Women in Law Leadership’s award for 2012 for Leadership in the Profession (Private Practice).

Prior to joining Lawson Lundell, in addition to practicing Tammy was the managing partner of the Calgary office of a global law firm.

About Lawson Lundell’s Litigation and Dispute Resolution Group:

Lawson Lundell’s Litigation & Dispute Resolution Group consists of an energetic team of lawyers and paralegals working out of our offices in Vancouver, Calgary and Yellowknife. We are recognized as leaders in litigation and dispute resolution in western and northern Canada, having been named British Columbia Firm of the Year in Litigation at the Benchmark Litigation Canada Awards 2014.

Team members have acted in all levels of court in the region and the Supreme Court of Canada, as well as before a wide range of administrative panels and in national and international arbitrations. www.lawsonlundell.com

Keith Bergner was interviewed by Canadian Lawyer's Janet Guttsman on the recent Supreme Court of Canada decisions in the Aboriginal law space and their potential impact on mining and other development. In the article, "A new era of title claims," Keith noted that the mining sector currently recognizes the benefits of negotiating with First Nations.

On August 18, 2014, Craig Ferris was interview about the constitutional issues arising out of the Bountiful, BC polygamy case.

In the interview, he discussed how the trial will differ from the reference case. "There are a number of issues that were raised in the reference case that are unlikely to be raised in [the trial]", said Ferris. "You'll get a more specific constitutional argument, which again may not answer the question on this law forever, because you will be focusing on the charges that were laid". 

Along with the Globe and Mail, this interview was also published by the National Post, CBC, CTV, Vancouver Sun, Montreal Gazette, Leader Post, StarPhoenix, Windsor Star, Calgary Herald, Edmonton Journal and many others. 

In this chapter, Karen MacMillan and Khaled Abdel-Barr discuss the relevant authorities and legislation, mineral and land rights, foreign ownership and indigenous ownership requirements and restriction, taxes and royalties, as well as environmental and health and safety considerations.

Marko Vesely was recently interviewed by CBC's On the Island regarding Olympic medalist Simon Whitfield's case of defamation. 

Whitfield, who is being sued by a former coach, is alleged to have defamed his former coach using the online platform, Twitter. 

In this article, Ed Wilson outlines the implications of the BC Government's Miscellaneous Statues Amendment Act, 2014 (Bill 17) on Mortgage Brokers who assist purchasers with financing for pre-sale units. He discusses the delivery of disclosure statements, consolidated disclosure statements, phase disclosure statements and the effect of non-complaint disclosure statements. He also mentions who constitutes a 'developer' and the process of releasing deposits. 

On July 22, 2014 the Government of Alberta approved the much anticipated regulations (the “Regulations”) to accompany the new Employment Pension Plans Act (the “New Act”). The New Act, together with the Regulations, will come into force on September 1, 2014. 

The focus of the New Act is on facilitating new plan designs and on modernizing plan governance, risk management and disclosure. Pension plan sponsors and administrators will have to be fully familiar with the legal requirements of the New Act and Regulations, including any timelines for compliance.

In the coming weeks, we will provide additional commentary and analysis of the New Act and Regulations by way of written material and in-person presentations. This Bulletin is designed to provide a high level overview of the changes being implemented by the New Act with details now provided through the release of the Regulations.

These changes include:

• New Plan Designs and Governance Structures: The New Act contemplates a wide variety of new pension plan designs and governance structures. Of particular note, the New Act permits target benefit provisions in both new and existing plans, albeit currently with some limitations. The Regulations provide the formula and the tests to be used in administering a target benefit provision, introducing the concept of the "provision for adverse deviation".

• Governance Policies: Every pension plan will be required to have a written governance policy that meets prescribed criteria. The Regulations tell us what topics must be covered in the policy including, among other things: structures and processes in place for overseeing, managing and administering the plan; authorized decision makers and their roles; performance measures; code of conduct and conflict procedures; educational and skills requirements; and internal risk management controls.

• Funding Policies: Pension plans with defined benefit or target benefit provisions will be required to have a written funding policy that meets prescribed criteria. The Regulations say that the policy must, among other things, set out funding objectives, tolerances and internal controls for material risks.

• Compliance Assessments: A pension plan’s legal administrator will be required to perform governance and rules self-assessments. The Regulations require these assessments to be performed annually.

• Solvency Reserve Accounts: A solvency reserve account for a defined benefit provision can be established exclusively for payments in respect of a solvency deficiency, with the ability to later withdraw amounts in accordance with prescribed rules. With the release of the Regulations we now know that the administrator may apply to the Superintendent for consent to withdraw an amount that is not more than 20% of the "accessible solvency excess" per year over three years.

• Disclosure: The Regulations set out a number of new disclosure statements that will be required, including for persons receiving pensions, and specify new data requirements in respect of existing disclosure statements.

• Vesting: A member’s entitlement to receive a pension will vest immediately on termination of active membership.

• Locking-in: Locking-in will be based on a threshold commuted value and will no longer be based on years of service.

• Membership Classes: Classes for pension plan membership will no longer be limited to the classes prescribed in the current regulations.

• Termination and Wind-up: Partial terminations and wind-ups will be eliminated.

Although the release of the Regulations represents a significant milestone in Alberta’s pension reform initiative, the process is not quite complete. Bill 10, the Employment Pension (Private Sector) Plans Amendment Act, 2014 was introduced in the Alberta Legislature this April and proposed several amendments to the New Act. While many of the amendments in Bill 10 are minor and technical, there are a number that are more substantive, including provisions that would allow annuity buy-outs and permit conversions of accrued defined benefits to target benefits.

In response to feedback, the Alberta government decided to refer Bill 10 to the Standing Committee on Alberta’s Economic Future for additional review, with the Committee expected to report back in early fall, 2014. In the interim the Government is still proceeding to implement the New Act. However, the legislation taking effect on September 1 will not include any of Bill 10’s amendments, whether minor or substantive.

With some exceptions, the New Act reflects an intention to harmonize pension rules between Alberta and British Columbia. Accordingly, it is noteworthy that amending legislation similar to Bill 10 has already received royal assent in B.C.

For more information, please contact a member of our Pensions and Employee Benefits Group.

Keith Bergner was interviewed by the National Post's Drew Hasselback about the Supreme Court of Canada’s rulings in Tsilhqot’in and Grassy Narrows. In the article, "Aboriginal court decisions shouldn’t be dealbreakers," Keith notes that the best way to get a project built is to do a deal that secures the backing of any affected First Nations. “That’s still the preferred approach," he said. "If anything, the Tsilhqot’in decision has in my mind reinforced the wisdom of that approach.”

On July 18, 2014 the Province of British Columbia released the long-awaited Kitimat Airshed Study (though completed on April 25, 2014, the study was not previously released pending review).

Read more here.  

Toby Kruger, Keith Bergner, John Olynyk and Lauren Cook discuss the Supreme Court of Canada's important Aboriginal law decision in Keewatin v. Ontario (Natural Resources), 2014 SCC 48. The decision confirms the power of Ontario, along with other provincial governments, to manage natural resources over lands subject to numbered treaties. Treaty 3 is one of the historical, numbered treaties entered into between Canada and First Nations in the late 1800s and early 1900s whereby signatory First Nations surrendered their Aboriginal rights and title to lands they traditionally used in return for treaty rights, including the right to hunt and fish.

Read more here.

On July 11, 2014, the Supreme Court of Canada (“SCC”) released an important Aboriginal law decision, Keewatin v. Ontario (Natural Resources), 2014 SCC 48, confirming Ontario’s power to manage natural resources over lands in north-western Ontario reserved for Aboriginal groups pursuant to Treaty 3. Keith Bergner was interviewed by the National Post and Canadian Press about the decision, noting that it ends any uncertainty about whether a province can “take up” lands that were ceded by an agreement reached with the federal government.

The interviews were also published in the Ottawa Citizen, Montreal Gazette, Calgary Herald, Edmonton Journal, Leader Post, Winnipeg Free Press, Windsor Star, Times Colonist and Star Phoenix.

Keith Bergner is quoted in Business in Vancouver article, "Tsilhqot'in case is not a template for resolving all First Nations land disputes" published on July 8, 2014.  

The article examines a recent and highly anticipated Supreme Court of Canada decision that awarded Aboriginal title to the Tsilhqot'in First Nation. In the article, Keith notes that while the decision will give guidance for future court decisions, every case of aboriginal title will have to be decided on its own merit.

In this article, "Developing the North," Christine Kowbel discusses the challenges and opportunities faced by resource projects in northern Canada.  

Employment Minister Jason Kenney and Immigration Minister Chris Alexander today announced significant reforms to the Temporary Foreign Worker Program (“TFWP”). The TFWP is being reorganized into two streams: the TFWP administered by Employment and Social Development Canada (“ESDC”) and the International Mobility Program administered by Citizenship and Immigration Canada (“CIC”). The changes to the TFWP reinforce the federal government’s position that the TFWP should be a program of last and limited resort for employers.

Temporary Foreign Worker Program

The changes to the TFWP include the following:

• The Labour Market Opinion process is replaced by a Labour Market Impact Assessment ("LMIA") process which will require additional information from employers about their recruitment efforts. ESDC will refuse to process applications where temporary foreign workers may have a negative effect on the Canadian labour market.

• Effective immediately, the processing fee for the LMIA will increase from $275 to $1,000 per position. An additional "privilege fee" of $100 may also be put into effect to offset the costs of investments in skills and job training.

• The TFWP will be administered based on wage instead of occupational classification. Temporary foreign workers who are paid at less than the reported provincial/territorial median wage will be considered low-wage. For example, the median hourly wage in British Columbia is $21.79, in Alberta is $24.23 and in the Northwest Territories is $32.53. Workers paid below the median rates will be considered to be in low-wage positions.

• A cap will be placed on the number of low-wage temporary foreign workers per worksite location. An employer applying for a new LMIA who has 10 or more employees will be subject to a temporary foreign worker cap of 10% of the workforce at a location. This cap will be phased in until July 2016 for employers who are currently over the 10% cap.

• The moratorium on the food services industry is lifted. However, effective immediately, ESDC will not process LMIA applications for specified occupations in the accommodation, food services and retail trade sectors in economic sectors where the unemployment rate is at or above 6%.

• The maximum duration for a work permit for low-wage positions will be reduced from two years to one year effective immediately. The government has also announced that the total duration that a temporary foreign worker in a low-wage position may remain in Canada will be reduced from four years but has not yet identified the new maximum. This change will come into effect in the summer of 2015.

• For high-wage positions, the employer will be required to submit a transition plan with the LMIA application to identify steps to be taken to reduce reliance on temporary foreign workers over time.

• LMIA applications for positions in highest demand (skilled trades) occupations, highest paid occupations (top 10% in a province or territory), or shortest duration occupations (120 calendar days or less) will be processed within 10 business days.

• Exceptions which were in place for pilots will be tightened.

• Enforcement activities will be increased. One in four employers using the TFWP will be inspected each year. Beginning in the fall 2014, fines of up to $100,000 may be imposed on employers who violate the terms of the TFWP.

• There are certain exemptions from the reforms for the on-farm primary agriculture and live-in caregiver programs.

International Mobility Program

• The International Mobility Program (IMP) will include all work permit applications that are LMIA-exempt, such as work permits under international agreements such as NAFTA and under working holiday programs.

• In the summer of 2015, a compliance fee of $230 will be put into effect where a work permit is employer specific and LMIA-exempt in addition to the work permit processing fee. A "privilege fee" of $100 will be put into effect for open work permits to allow for improved data collection on the employment of open work permit holders and to increase awareness of Canadians of the opportunities to live and work abroad.

• The government will undertake a comprehensive review of work permits which are LMIA-exempt. New and more restrictive guidelines for intra-company transferees with specialized knowledge have been put into effect.

Will Roberts was recently profiled in Financier Worldwide's Bankruptcy & Restructuring Handbook.  This handbook includes profiles of leading experts in the field of corporate bankruptcy and restructuring from around the world. The profiled experts have acted for and advised private and public corporations, investment funds, lenders, unsecured creditors and debtors, in addition to many other entities. 

On March 28, 2014, the Canadian Association of Pension Supervisory Authorities (CAPSA) released new Guideline #8 “Defined Contribution Pension Plans Guideline” to clarify certain best practices for defined contribution (DC) pension plan administrators.[1] This new guideline is intended to supplement, and not replace, the requirements set out in CAPSA Guideline #3 “Guidelines for Capital Accumulation Plans”. Although CAPSA Guidelines are not law, they provide pension plan administrators with a useful standard of best practices.

The new guideline is notable in that it elaborates on the responsibilities of DC plan members, such as in respect of investment selection (if applicable) and selecting from options provided on termination. It also characterizes member communication requirements differently depending on the stage of a DC plan member’s career. The new guideline was released with an accompanying reference document providing information on the various regulated retirement products available to DC plan members in the payout phase.

Specifically, the new guideline:

• provides a summary of the various CAPSA guidelines already applicable to DC plans (#3, 4, 5 and 6);

• sets out responsibilities of the plan administrator, employer, plan sponsor, third-party service providers, fund holder and plan members, all with respect to DC plans;

• gives plan administrators guidance regarding the tools and other communications they should provide to DC lan members at various stages of the members’ careers (during the accumulation phase, approaching the payout phase and during the payout phase); and

• provides guidance on what may constitute an adverse amendment for DC plans.

Please contact Megan Kaneen at mkaneen@lawsonlundell.com 604.631.9229 or a member of our Pensions and Employee Benefits Group for more information.

In this Guide, Rita Andreone, QC and Michael Lee contribute a chapter discussing corporations in Canada, with a focus on public companies and with the intention that private corporations will find it useful in structuring and measuring their own governance frameworks.

Today, for many Energy Regulators, project proponents, Aboriginal groups and intervenors, issues surrounding Aboriginal rights and title and the Crown’s duty to consult Aboriginal peoples have become a critical focus in the regulatory approval processes for major (and not-so-major) projects. In his article, "The Crown’s Duty to Consult and the Role of the Energy Regulator," published in Energy Regulation Quarterly, Keith Bergner examines the role of the Energy Regulatory in respect of the Crown’s duty to consult. 

Outrage over a dog-napping at a Vancouver tattoo parlour is leading to accusations swirling online. In this interview, Marko discusses some of the consequences of defaming someone online. 

In this article, Val Mann discusses how law firms should handle being approached by an early-stage entrepreneur. According to Val, when she is approached "she conducts an informal vetting process to make sure she understands the business idea, then talks to people at incubators and in the venture and angel communities." 

In this article, Val Mann discusses how law firms should handle being approached by an early-stage entrepreneur. According to Val, when she is approached "she conducts an informal vetting process to make sure she understands the business idea, then talks to people at incubators and in the venture and angel communities." 

Under a tide of mounting investor scrutiny, which can lead to costly proxy battles, it is particularly important for mining companies to understand the increasing range of legislative, regulatory and governance-related rules that control these meetings. This article outlines a few key points to remember in seeking to mitigate shareholder disputes, including some defensive measures and responsive strategies.

Nicole Skuggedal quoted in BC Business article "Tracking Workers in BC" discussing the BC privacy commissioner's rulings that side with companies tracking employees through mobile and GPS devices in company vehicles.  In reaching this decision, Nicole notes, the privacy commissioner would "balance the employer’s business interest with an employee’s right to privacy."

Marko Vesely is quoted in the Vancouver Sun article "Lulu app stirs controversy: dating intelligence for girls or ‘unacceptable surveillance’?" discussing the defamation issues that may arise as a result of comments made on the controversial Lulu app, an application that allows women to anonymously share ratings of their dates among their Facebook friends.

Marko Vesely was recently interviewed by Financier Worldwide for its Commercial Arbitration Annual Review.  This review examines issues and developments in commercial arbitration around the world. In the interview, Marko offers a Canadian perspective, outlining some of the key benefits of arbitration, recent changes to arbitration legislation and the practical considerations that need to be addressed when undertaking complex multi-jurisdictional arbitrations in Canada.

Len Glass was recently interviewed on CKNW’s The World Today with Jon McComb discussing the implementation of the Foreign Account Tax Compliance Act (FATCA). FATCA is meant to address tax evasion by American citizens living abroad, but is raising questions about privacy implications as it requires financial institutions in other countries to tell the IRS about US citizens’ offshore accounts with than $50,000. On the show, Len discussed  the Act and examined how it would impact Canadian financial institutions as well as US citizens living in Canada. 

Marko Vesely discusses PR and the law in Canadian PR for the Real World, a textbook featuring Canadian case studies, information on PR and the law, best practices, and PR practitioners from across the country.

Lisa Peters' article "Stop Shooting Cannonballs at my Customers’ Canoe!" discusses the Supreme Court of Canada's recent decision in A.I. Enterprises Ltd. v. Bram Enterprises Ltd., 2014 SCC 12. This is an important commercial decision as it clarifies and narrows the scope of the tort of unlawful interference in economic relations. Canadian businesses will also welcome the Court's reference to commercial certainty as one of the principal reasons to clarify and limit the scope of this tort.

Lisa Chamzuk's article, "New Wills, Estates and Succession Act Coming to BC – Application to Pension Plans", discusses the Wills, Estates and Succession Act (“WESA”)coming into force in British Columbia. The primary purpose of WESA is to simplify and coordinate the current patchwork of legislation that applies to wills and estates.

Peter Roberts guest stars on AM 650 Radio Real Estate Show; discusses joint property ownership and sales.

Peter Roberts was quoted in a Globe and Mail article discussing the BC Supreme Court judge ruling that a “ski buddy” was not responsible for the death of a back-country skier on the slopes near Revelstoke, BC. 

Peter Roberts' article “How Should a Strata Deal with the Owner From Hell? - the Final Chapter” was reprinted in the December issue of British Columbia Real Estate Developments.  In this article, Peter examines a B.C. Court of Appeal decision that settles the question of whether or not the courts can force the sale of a strata unit as a remedy for a strata occupant’s failure to abide by strata rules and bylaws. The definitive answer is, given appropriate circumstances, the court can force such a sale.

Lisa Chamzuk and Ben Heller's co-authored article, "Spam, Spammity Spam, wonderful Spam?", discusses Canada’s Anti-Spam Legislation that will be coming into force in three stages over the next four years.

Ritu Mahil'sarticle, "Constructive dismissal: should I stay or should I go?", discusses employee constructive dismissal claims becoming commonplace and the questions an employee might ask themselves when faced with a difficult working environment.

Peter Roberts was quoted in the Globe and Mail discussing a B.C. Supreme Court ruling that a majority of owners in a common law condo complex  in North Vancouver can ask for a sale of the whole property. Peter, who acted in the case on behalf of the successful owners, said the ruling "is an important decision because it makes it clear that one small group of owners cannot block everyone else from selling."

A recent decision from the Alberta Office of the Information and Privacy Commissioner (the “Alberta Privacy Commissioner”) highlights the importance of responding to all privacy complaints and cooperating, to the extent possible, with the Information and Privacy Commissioner during investigations.

Labour and employment lawyer, Nicole Skuggedal, is quoted in the Business in Vancouver article “Do you know where your mobile workers are?” published on January 13, 2014 which discusses rulings from B.C.'s privacy commissioner to affirm employers' rights to track their employees with GPS technology while on the job.

FortisBC is the dominant natural gas service provider in British Columbia, serving nearly a million customers in over 125 communities in the province. It is a public utility regulated by the British Columbia Utilities Commission (BCUC), under the Utilities Commission Act (UCA).