Legal Updates

Focus on expert evidence in family courts

The process of experts giving evidence in family courts is under the spotlight in England and Wales, with the Government publishing details of new national standards that it says will reduce unnecessary delays in court and increase the quality of the evidence giving.

“It is important that expert witnesses are used effectively in deciding the future of vulnerable children,” said Family Justice Minister Lord McNally. “These new standards put the welfare of children at the heart of the system, so only the highest calibre evidence is permitted and cases are resolved quickly.”

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Nil Rate Band will trusts: time to review

This year’s Finance Act introduced some significant constraints on when debts can be deducted for Inheritance Tax (IHT) purposes.  The changes should have set alarm bells ringing for any families who are making use of nil rate band will trusts and associated loans.

IHT is usually thought of as a tax that applies to a deceased person’s estate after any debts due have been deducted.  However, to have to pay IHT on funds which are then paid away to satisfy creditors will take some getting used to – but, unless you qualify for the very specific exception in section 175A(2) IHTA 1984, that is the effect of the new rules if debts are not discharged on or after death out of the estate.

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Multistate Tax Update — November 14, 2013

The New York Department of Taxation and Finance (the Department) recently issued Advisory Opinion TSB-A-13(35)S (the Opinion). In the Opinion, the Department was asked by a catalog and online seller of wine located in California (Petitioner) whether it must collect sales tax on its sales of bottled wine in the state. New York tax law provides that such a seller must collect sales tax on wine. However, for other (nonalcoholic) tangible property sales sold in such a manner, requiring the seller to collect New York sales tax would be unconstitutional. The real question is—what makes wine so special? To fully appreciate this Opinion, it is important to understand where this Opinion departs from what would commonly occur with sales of other tangible goods, as well as the facts and circumstances surrounding the Petitioner.

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Senate Approves ENDA, LGBT Workplace Bill Faces Challenges in House

By Nancy Gunzenhauser, Susan Gross Sholinsky and Jeff Landes

With the Supreme Court’s influential decision in June, declaring the Defense of Marriage Act unconstitutional, the tides are moving in favor of federal legislation on gay, lesbian, and transgender workplace rights. On November 7, 2013, the Senate passed the Employment Non-Discrimination Act (“ENDA”), prohibiting employment discrimination on the basis of both sexual orientation and gender identity.

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Supreme Court of Canada Clarifies Requirements for Certification of Class Actions

By Jordan Watson

The Supreme Court of Canada released reasons for judgment in three cases on October 31, 2013: Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57 (“Pro-Sys“) and Sun-Rype Products Ltd. v. Archer Daniels Midland, 2013 SCC 58 (“Sun-Rype“), both cases on appeal from the British Columbia Court of Appeal, and Infineon Technologies AG v. Option consommateurs, 2013 SCC 59 (“Infineon“), on appeal from the Quebec Court of Appeal.

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Calls for change in psychiatric injury law

People who suffer psychiatric injuries after witnessing distressing events are subjected to a “harsh and outdated” system of redress, say the Association of Personal Injury Lawyers (APIL), which has called for a review of the law in England and Wales.

“The physiological impact for witnesses of distressing events can wreak havoc on their lives, sometimes permanently,” explained Matthew Stockwell, president of APIL, which has asked the Law Commission to examine the law on psychiatric injury for witnesses, or ‘secondary victims’.

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European Insolvency Regulation is being reformed

European Council Regulation (EC) No 1346/2000 on insolvency proceedings has been applicable to insolvency proceedings in the territory of the Member States of the European Union as of 31 May 2002. The Insolvency Regulation established the European framework for cross-border insolvency proceedings and is applicable if the debtor has assets or creditors in more than one Member State. After a little over ten years of application, the European Commission has carried out a needs assessment and submitted a proposal to amend the Regulation (COM 2012/744). The proposed amendments address the practical problems in the application of the Regulation. The Commission proposal is currently before the Council of the European Union. More…

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Supreme Court Certifies "Indirect Purchaser" Class Action Against Microsoft

The Supreme Court of Canada has ruled that a class action commenced against Microsoft Corporation and Microsoft Canada (Microsoft) for allegedly overcharging for their operating systems may proceed in British Columbia ( Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57 )
The representative plaintiff in the class action alleged that, beginning in 1988, Microsoft engaged in unlawful conduct by overcharging for its Intel-compatible PC operating systems and Intel-compatible PC applications software.  The plaintiff sought certification of the class action under the British Columbia Class Proceedings Act (“Act“).   The proposed class is made up of ultimate consumers, known as “Indirect Purchasers” who acquired Microsoft products from re-sellers. 
The British Columbia Supreme Court certified the proceeding as a class action.  Microsoft appealed from that decision.  The British Columbia Court of Appeal allowed Microsoft’s appeal and dismissed the action, ruling that indirect purchaser actions were not available as a matter of law in Canada and therefore the class members had no cause of action. 
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Do "Spectacular" Infill Drill Results Require Disclosure?

By Vikram Dhir and Nick Ayling

A British Columbia Securities Commission (“BCSC“) decision earlier this year should be of interest to junior mining issuers, though we suggest that the decision should be followed with extreme caution. We note that this decision relied on specific facts and circumstances and should not be taken as standing for the proposition that infill drill results are not, per se, material.

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Ontario sues Big Tobacco for $50 Billion for "Tobacco Related Wrongs"

The Ontario Court of Appeal has held that the government of Ontario can proceed with a $50 billion lawsuit against several foreign tobacco companies to recover the cost of health care services arising from “tobacco related disease ” and “tobacco related wrongs”. See Ontario v. Rothmans Inc. 2013 ONCA 353
Ontario’s case is based on legislation – The Tobacco Damages and Health Care Costs Recovery Act - enacted by the province in 2009.  The Act gave Ontario a stand-alone statutory right to sue tobacco manufacturers to recover the cost of health care services provided to the public as a result of “tobacco related disease arising out of tobacco related wrongs”. 
In substance, Ontario is claiming that since the 1950s, several of the defendants committed tobacco related wrongs  by manufacturing and distributing cigarettes in Ontario when they knew or ought to have known that smoking cigarettes and being exposed to second-hand smoke could cause or contribute to disease.  In addition, Ontario claims that all of the defendants have engaged in various conspiracies to mislead the government and the public about the dangers of smoking and to suppress information about those dangers.
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