Canada updates

Arbitration & ADR

Contributed by Borden Ladner Gervais LLP
Court of appeal declares notice to arbitrate null due to its attempt to achieve consolidation without consent
  • Canada
  • 17 January 2019

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.

Consolidation of arbitration proceedings without consent: cautionary tale
  • Canada
  • 06 December 2018

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.

Court clarifies when international arbitral awards become binding
  • Canada
  • 27 September 2018

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.

Quebec court consolidates law on third-party funding agreements: impact on commercial arbitration
  • Canada
  • 28 June 2018

Third-party funding in commercial arbitration in Canada has moved increasingly into the mainstream. Its implementation is largely influenced by the treatment of third-party funding in litigation, which is why it is important for arbitration practitioners in Canada to continue to follow jurisprudential trends regarding the treatment of third-party funding. A recent third-party litigation decision from Quebec provides valuable insight for arbitrators in this regard.

British Columbia aligns international commercial arbitration legislation with UNCITRAL Model Law 2006
  • Canada
  • 03 May 2018

British Columbia recently introduced amendments to its International Commercial Arbitration Act. The proposed amendments are intended to modernise British Columbia's international arbitration legislation and align it with accepted international standards. In so doing, the government hopes to position Vancouver as a more desirable location to host international commercial arbitration proceedings.


Aviation

Contributed by Bersenas Jacobsen Chouest Thomson Blackburn LLP
Class action regarding flight passes denied certification
  • Canada
  • 06 March 2019

The Quebec Supreme Court recently declined to certify a class action based on the application of certain sections of the Consumer Protection Act or its Alberta equivalent to flight passes sold by Air Canada. This decision is notable for carriers selling flight passes, as it clarifies the types of transaction which are subject to consumer protection laws. Carriers which sell gift cards representing a fixed monetary value should be aware of their obligations under consumer protection laws.

Federal government proposes air passenger protection regulations
  • Canada
  • 23 January 2019

The Canadian Transportation Agency is seeking a public review and comment on proposed air passenger protection regulations. Among other obligations, the proposed regulations require that carriers communicate clearly with passengers regarding their rights and recourses, entitle passengers to be rebooked in the case of delay or cancellation and – in certain circumstances – provide passengers with accommodation.

Federal Court finds that Air Canada violated Official Languages Act
  • Canada
  • 12 December 2018

In a recent case that dealt with Air Canada's duty to serve passengers in both of Canada's official languages (English and French), the Federal Court held that the airline had violated a passenger's right to be served in French. The court found that Air Canada had failed to serve a passenger in French during an incident where the passenger had been involuntarily removed from a Canada-bound flight from Fort Lauderdale and when the airline later sent him a copy of its tariff in English in response to the incident.

Court finds in favour of Air Canada in denied boarding compensation case
  • Canada
  • 14 November 2018

The Supreme Court of Nova Scotia recently ruled in favour of Air Canada, dismissing a passenger's appeal of the province's small claims court's interpretation of the air carrier's tariff provision which pertained to denied boarding compensation. Despite humble beginnings in the small claims court, the case provides some insight into how the Canadian courts may interpret air carrier tariffs and the evidence that claimants are expected to adduce to succeed in securing compensation in overbooking cases.

Federal Court quashes civil aviation safety alert
  • Canada
  • 05 September 2018

In early 2018 the Federal Court reviewed a 2015 Transport Canada decision to issue a civil aviation safety alert (CASA) against Rotor Maxx Support Ltd. CASAs are non-mandatory notifications issued by the regulator which contain important safety information and recommended actions for appropriate stakeholders. The court had previously declined to grant an injunction preventing the issuance of the CASA.


Banking

Does offshore banking confidentiality hold up in Canadian courts?
  • Canada
  • 02 June 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
  • 26 May 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
  • 19 May 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.


Corporate Tax

Contributed by Thorsteinssons LLP
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.

TFSA advantage tax: heads CRA wins, tails you lose
  • Canada
  • 14 December 2018

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.

Federal Court refuses to authorise abusive fishing expedition by CRA
  • Canada
  • 14 September 2018

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.

Cryptocurrency taxation: what business leaders need to know
  • Canada
  • 07 September 2018

In these heady days of cryptocurrency investment, the market can seem like a gold rush – offering promise, but at the expense of predictability. Cryptocurrency taxation is no different. Increasing scrutiny from all types of regulator, including the tax authorities, seems inevitable for the sector. While this may diminish potential profits when compared to the early days of cryptocurrencies, it will likely add structure, transparency and legitimacy in the long term.

Tax Court rules that Visa's services are subject to GST/HST
  • Canada
  • 20 July 2018

The Tax Court of Canada has released a landmark decision on the goods and services tax/harmonised sales tax status of certain commonplace transaction processing services – namely, Visa's payment platform offered to financial institutions. The court held that the supply of services made by Visa to the Canadian Imperial Bank of Commerce fell outside the definition of a 'financial service' under the Excise Tax Act and therefore did not qualify as an exempt supply.


Employment & Benefits

Contributed by Fasken
Federal Court: release does not prevent unjust dismissal complaint
  • Canada
  • 20 March 2019

The Federal Court recently clarified that employees may file an unjust dismissal complaint even if they have signed a release and any decisions by adjudicators to the contrary are bad law. This is an important decision for federally regulated employers that terminate without cause and offer a severance package conditional on signing a release as they must, among other things, adjust their settlement practices and releases to address the risk.

Genetic characteristics: developing form of discrimination
  • Canada
  • 13 March 2019

Employers should be mindful of a newly recognised form of discrimination that has captured the attention of legislators and the Canadian public: genetic discrimination. A bill is before the Ontario legislature that would prohibit employers from discriminating against employees based on their genetic characteristics. The courts have also started to weigh in on the issue in the context of the subjective component of discrimination or perceived disability.

New rules on police record checks in Ontario
  • Canada
  • 06 March 2019

The Police Record Checks Reform Act 2015, which recently came into force, standardises the types of police record check that can be performed and the types of information that can be disclosed. The new rules are important for employers that use police record checks to screen employees, applicants, volunteers or others. Employers must understand the differences between the three types of check to ensure that the correct check is requested in each situation.

Dazed and confused about recreational and medical cannabis
  • Canada
  • 20 February 2019

Recreational cannabis was recently legalised in Canada. However, employers are confused as to whether recreational and medical cannabis should be handled differently under human rights laws. Among other things, employers can prohibit the possession of any recreational cannabis at work even though the possession of small amounts is now legal. Nevertheless, employers are obliged to accommodate – to the point of undue hardship – employees who are addicted to recreational cannabis.

Sex, lies and videotape: good evidence?
  • Canada
  • 30 January 2019

In a recent case, an employer installed video surveillance in his office in order to catch employees rifling through his private filing cabinet. However, what was actually caught on tape was two employees doing something entirely different. This raised the question of whether the employer could use the footage as evidence to terminate the employees for just cause. A recent arbitration board's interim decision said yes.