News & Publications Archive

On November 15, 2011, the Supreme Court of Yukon released its decision in Ross River Dena Council v. Government of Yukon, 2011 YKSC 84. The case is important as it is the first court decision to consider the issue of whether the Government of Yukon has a duty to consult with First Nations when recording quartz mineral claims under the Quartz Mining Act (the “Act”).  It is also somewhat unique as the recording of a quartz mineral claim by the Mining Recorder is not a discretionary act under the “free entry” system established by the Act.

This article, published in the December 2011 issue of Small Business Profit Guide, discusses employee privacy rights for information stored on work computers and the importance of adopting a well-conceived policy on computer usage.

The best way to protect your company from being found in violation of employee privacy is to adopt a well-conceived policy on computer usage and enforce it consistently.

Ken Burns discusses defined contribution and defined-benefit pension plans in the Business in Vancouver article "Devaluing retirement dreams", published in the November 29 - December 5, 2011 issue of the paper.

Valerie Mann discusses reverse break fees in the article, "Breaking up is hard (and expensive) to do", published in the November 22, 2011 issue of Business in Vancouver.

This paper examines the scope of a regulator’s authority to conduct inspections and investigations across a number of common regulatory contexts.

Keith Bergner is quoted in The Vancouver Sun article, "Certainty still a question in land rights and resource development", published on November 12, 2011.

The following articles can be found in this bulletin:

* Welcome back Deborah Cushing
* Insubordination and Just Cause Dismissal: Considerations for Employers
* British Columbia's Minimum Wage Increased on November 1, 2011
* Proposed Amendments to the Workers Compensation Act - Mental Stress
* Temporary Foreign Workers - Meeting the "Substantially the Same" Requirement

The IRS has today released proposed amendments to the Code Section 892 regulations. Code Section 892 is the provision within the Internal Revenue Code that exempts foreign sovereigns from taxation in respect of investment income earned in the U.S. The primary amendments are described in this article.

Canada is uniquely positioned to provide an abundance of secure and reliable energy. With conventional oil supply declining, the need for unconventional resources, like oil sands and shale gas, will increase. Alberta and British Columbia, Canada’s two western-most provinces, house the vast majority of Canada’s oil and natural gas deposits, making both provinces key players in the push to develop resources sufficient to meet growing energy demand in North America and beyond.

On October 19, 2011, Marko Vesely appeared on CKNW's The Simi Sara Show to discuss the recent Supreme Court of Canada decision on whether hyperlinking to defamatory material on a website constitutes publication of the defamatory content.

Entity classification refers to a set of rules used in the U.S. tax system to classify entities for the purposes of the Internal Revenue Code. Once classified, the entity will either be subject to the Code rules for corporations or the Code rules for partnerships.

On September 21, 2011, Marko Vesely appeared on CKNW's The Simi Sara Show to discuss a recent court ruling that a website's terms of use is a contract between the website visitor and the website owner, even if visitors are not asked to explicitly accept the terms of use.

Rob Sider discusses some of the differences in the termination of employment in Canada and the USA in The Financial Post article, "Don't lump Canada in with U.S., buyers told", published on September 21, 2011.

Marko Vesely in quoted in The Globe and Mail article, "Why reading a website’s fine print matters", published on September 21, 2011. In the article, Marko discusses a recent ruling on whether a website’s fine print can be enforced, even if users are not asked to explicitly accept the terms of use.

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.

Marko Vesely is quoted in the article, "BC Supreme Court orders Zoocasa to pay $32,000 to real estate agents for breaching web site’s terms of use", published in The Vancouver Sun on September 13, 2011.

Peter Roberts is quoted in the article "Man's home set to be seized despite acquittal on marijuana charges", published in The Globe and Mail on September 8, 2011.

The organization that controls most of the Internet's gTLD's (generic top level domain names, such as .com and .net) has approved the use of .xxx as a new gTLD. That has a number of trade-mark owners worried about the potential for reputational risk or damage to goodwill with the registration in the .xxx domain of their brands. The .xxx gTLD is for use by those involved in the adult entertainment industry. For everyone else, the thought of a brand being associated with this gTLD is somewhat concerning.

Keith Bergner was quoted in the Daily Oil Bulletin article, "Trans Mountain Westridge Dock Firm Service Now Up To NEB" published on August 31, 2011. 

Two recent decisions of the Supreme Court of Canada provide significant insight into the nature and purpose of the Crown’s duty to consult with Aboriginal peoples—what it is, and just as importantly, what it is not—and the interplay of the duty with administrative law principles. 

Acting as an escrow agent is a common task of lawyers in British Columbia, especially, the solicitor, as a component of transactions. The duties of an escrow agent are primarily contractual and the escrow agent must carry out the duties accordingly, in a non-negligent fashion and without misconduct. Lawyers must take care not to agree as escrow agent to duties that are in conflict with their duties as counsel, but there are additional considerations.

On August 5, 2011, Ken Burns was interviewed by Michael Campbell on CKNW radio on the subject of pensions.

Rita Andreone is quoted in the article, "News of the World Scandal as Teachable Moment", published in the August 3, 2011 edition of The Financial Post. In the article, Rita speaks on corporate governance practices and how companies need to follow up with employees on imposed codes of conduct.

Nicole Skuggedal is quoted in the article, "Work computers a privacy grey area", published in the July 19, 2011 edition of The National Post. In the article, Nicole discusses whether an employee has a reasonable expectation of privacy over their files and e-mails.

Ken Burns is quoted in The Globe and Mail article, "The hidden costs of switching to a cheaper pension plan", published in the July 18, 2011 edition of the paper.

Marko Vesely is quoted in The Vancouver Sun article, "Voicemail hacking in Canada easy when password feature is bypassed", published in the June 14, 2011 edition of the paper. Marko discusses ways a person in Canada could get into trouble for hacking voicemail.

Lewis Manning is quoted in the July 2011 issue of Canadian Lawyer Magazine in the article, "Hot-tubbing experts — should lawyers like it?". Hot-tubbing refers to the procedure of organizing all experts in a case into a panel and hearing their evidence concurrently. In the article, Lewis discusses how the energy sector deals with multiple experts.

Lisa Peters is quoted in the July 2011 issue of Lawyers Weekly in the article, "SCC clarifies real estate disclosure standards".

Nicole Skuggedal is quoted in the The Vancouver Sun article, "Employers of Vancouver riot participants victims of public backlash", published in the June 22nd, 2011 edition of the paper. In the article, Nicole discusses how firing an employee with cause over his or her involvement in the Stanley Cup riots will boil down to the severity of their actions and the impact his or her actions have on the employment relationship.

Marko Vesely was quoted in The Vancouver Sun article, "Business owners ponder legal action" published on June 20, 2011. In the article, Marko discusses whether business owners should sue those responsible for damages caused during the Stanley Cup riots.

Marko Vesely was quoted in The Globe and Mail article, "Bill for damages to be much higher than for the 1994 Vancouver riot", published in the June 20, 2011 edition of the paper. In the article, Marko says BC's Parental Responsibility Act makes it easier for people to recover from parents up to $10,000 in damages caused by their children during the Stanley Cup riots. Whether the parents are liable will be fact specific and will depend on the particular child and what the parents did or didn’t do.

Marko Vesely was quoted in The Toronto Star article, "Parents, friends turn in alleged Vancouver rioters" published on June 18, 2011. In the article, Marko says current BC legislation shifts the burden of proof of parental liability. Parents should take note of their children’s behaviour because they may have to pay for damages their children cause.

The position of Corporate Secretary has evolved over the years. For some organizations, gone are the days when the Corporate Secretary was a mere corporate record custodian, certifier of corporate organizational facts and note-taker. Bylaws, board mandates, shareholder agreements and other governance documents, not to mention job descriptions, may or may not fully describe the expectations that now often go with the role. This article examines the role of the Corporate Secretary.

Keith Bergner is quoted in the June 2011 Lexpert Magazine feature article, "Gold Rush, No Rush". This article discusses the keys to closing a deal between corporations and First Nations communities - time and mutual respect.

Marko Vesely was interviewedy by News 1130 on June 17, 2011 to discuss how insurance companies could go after parents of under-age Stanley Cup rioters to pay for damages.

With the U.S. economy not as robust as it once was, it seems that Americans are currently more interested in selling their Canadian assets, particularly recreational property, than buying Canadian assets. It is therefore useful to consider the issues that arise when a U.S. person sells Canadian real estate.

The following points are relevant:

- The U.S. person will be required to prepay tax on any gain arising from the Canadian real estate; and

- If the real estate has been rented, the Canada Revenue Agency (CRA) will require the U.S. person to catch up on any unpaid tax on the rental revenue.

This article looks at the United State's Environmental Protection Agency's (EPA) concern about the potential environmental and human health impacts of hydraulic fracturing in the United States and how the Canadian federal government appears content to delegate regulation of hydraulic fracturing to the various provincial governments and their regulatory agencies.

Rita Andreone is quoted in the article,"BC law society expands powers of articling students", published in the May 27, 2011 issue of Lawyers Weekly .

Financial pressures often prompt an employer to review the benefits provided to employees and former employees in order to determine whether changes can be made that would decrease the cost of those benefits. Other times an employer will make changes to the benefits it offers in order to attract new employees or to better respond to the demographics of its workforce. This paper explores some of the more common changes employers make in respect of the benefits they offer to active and retired employees and highlights the more significant restrictions on an employer’s ability to implement those changes.

On May 18, 2011, Chris Sanderson and Keith Bergner received the Premier's Collaboration Award (NWT) for their work on the Mackenzie Gas Project.

On May 11, 2011, the Supreme Court of Canada released its reasons for judgment in Sharbern Holding Inc. v. Vancouver Airport Centre Ltd, 2011 SCC 23.

While the case was decided under the now repealed Real Estate Act, R.S.B.C. 1996, c. 397, the findings are nonetheless of interest to real estate developers governed by the Real Estate Development Marketing Act, S.B.C. 2004, c. 41 (“REDMA”). Much of the Court’s analysis should apply in the context real estate developments and disclosure statements governed by REDMA despite some content differences between the repealed and current statute. In addition, the decision has relevance to other statutory disclosure regimes based on the concept of materiality, such as securities law regimes.

BC’s Real Estate Development and Marketing Act (REDMA) and its associated regulations and policies is an essential piece of legislation that allows the multi-family, new home market to operate. An understanding of its function is critical for both developers and property buyers in BC.

During difficult economic times, sponsors of defined benefit pension plans have had to deal with plan deficits. This paper compares how the Canadian federal government and different provinces deal with solvency funding relief, jurisdiction by jurisdiction.

Marko Vesely's article, "Defamation in Social Media" appears in the May 2011 issue of BCBusiness Magazine. Marko discusses how many people have found themselves in legal trouble simply because they did not understand how public their online comments could be. The same rules and principles that govern large media organizations now apply to individuals who publish content on blogs, Facebook, or Twitter.

This bulletin contains information on employee voting time entitlement during federal elections. Also discussed is whether employees have a reasonable expectation of privacy over their computer data.

Rob Sider is quoted in The Globe and Mail article, "Fighting against being forced into retirement", where he comments on mandatory retirement and age discrimination. The article was published on April 26, 2011.

Valerie Mann was interviewed by Business in Vancouver for the article, "Metro Vancouver following global trend of increased M&A activity". The article appeared in the April 19-25, 2011 issue.

Mandeep Dhaliwal was interviewed by Business in Vancouver for the article, "When casinos roll into the red". The article appeared in the April 5-11, 2011 issue of the paper in the Top 100 Biggest Deals - Corporate Finance section.

On March 29, 2011, Marko Vesely appeared on CKNW's The Mike Smyth Show to discuss privacy issues concerning work-supplied technology.

These days many US businesses are looking north to Canada for new markets. This paper discusses when a US business needs to worry about the Canadian tax system. The short answer comes from some of the oldest provisions in the Income Tax Act. US businesses need to worry about Canadian tax when they have a physical presence in Canada.