Legal Updates

IRS Issues Final Regulations for Charitable Hospitals

Congressional scrutiny of tax-exempt hospital organizations arose as the distinction between tax-exempt and for-profit hospitals has been diminished by the federal government’s provision of Medicare and Medicaid to cover services that tax-exempt hospitals previously provided for free. The overhaul of the healthcare system has brought even more Congressional scrutiny, requiring hospital organizations to be very proactive in ensuring they continue to meet the original requirements for tax exemption, as well as new more rigorous requirements.

The Affordable Care Act (“ACA”), enacted March 23, 2010, added new requirements for Section 501(c)(3) organizations that operate one or more hospital facilities (hospital organizations). On a facility by facility basis, each hospital facility is required to meet the following four general requirements: More…

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Validity Of Waste Permit Doesn’t Depend Upon “Zero Environmental Risk”

On March 20, 2015 the B.C. Environmental Appeal Board in Shawinigan Residents Assn. v British Columbia (Directors Delegate, Environmental Management Act) (2015 CarswellBC 802) confirmed the validity of a waste permit, subject to an amendment requiring the monitoring of water quality immediately following a storm event greater than 1 in 200 years. The permit authorized refuse to be discharged to ground as well as effluent to an ephemeral stream from a contaminated soil treatment facility and a landfill. The contaminated soil would be processed through bioremediation and landfilling. The landfilling would involve soil encapsulation in engineered cells. More…

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Ontario’s Mineral Development Strategy

The Ontario government recently published a Discussion Paper on Renewing Ontario’s Mineral Development Strategy. The document is available on the Ministry of Northern Development and Mines website:

The Discussion Paper is described as a “first step in the development of a renewed mineral development strategy for Ontario.” The Discussion Paper notes progress made since the launch of the government’s 2006 mineral development strategy, particularly the enactment of an amended Mining Act in 2009, which recognized and affirmed existing Aboriginal and treaty rights in section 35 of the Constitution Act, 1982, including the duty to consult with Aboriginal communities and to minimize the impact of mining activities on public health and safety and the environment. More…

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Defendant Property Insurer Need Not Pay Claim Before Issuing Third Party Notice Against Those Responsible for Damage

By Jennifer R. Loeb

A recent BC Supreme Court decision in The Owners, Strata Plan 4249 v. Travelers Insurance Company of Canada confirms that an insurer defending itself in a first party policy lawsuit is entitled to issue third party notices for subrogation against those responsible for the loss.

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A full-sized penalty for a half-baked campaign

In its decision handed down last Friday, the Federal Court of Australia has ordered Coles Supermarkets Australia (Coles) to pay pecuniary penalties in the sum of $2.5million in an action brought against it by the Australian Competition and Consumer Commission.

The case is significant because, despite the fact that there was no evidence that consumers had suffered any significant harm, the penalty imposed by the Court was at the higher end of the scale. More…

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APRA comments on residential mortgage lending

APRA has released APG223, which provides useful commentary on the use of brokers by ADIs and other aspects of residential mortgage lending.

Lending secured by mortgages over residential property constitutes the largest credit exposure in the Australian banking system, and for many ADIs, represents over half their total credit exposures.  This concentration of exposure warrants ADIs paying particular attention to residential mortgage lending practices.

APRA’s Prudential Practice Guides (PPGs) provide guidance on APRA’s view of sound practice in particular areas, but do not themselves create enforceable requirements. PPGs for Authorised Deposit Taking Institutions are called APGs. More…

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EEOC Issues Proposed Wellness Program Amendments to ADA Regulations

My colleagues Frank C. Morris, Jr., Adam C. Solander, and August Emil Huelle co-authored a Health Care and Life Sciences Client Alert concerning the EEOC’s proposed amendments to its ADA regulations and it is a topic of interest to many of our readers.

Following is an excerpt:

On April 16, 2015, the Equal Employment Opportunity Commission (“EEOC”) released its highly anticipated proposed regulations (to be published in the Federal Register on April 20, 2015, for notice and comment) setting forth the EEOC’s interpretation of the term “voluntary” as to the disability-related inquiries and medical examination provisions of the American with Disabilities Act (“ADA”). Under the ADA, employers are generally barred from making disability-related inquiries to employees or requiring employees to undergo medical examinations. There is an exception to this prohibition, however, for disability-related inquiries and medical examinations that are “voluntary.”

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Permitted development rights – further changes from 15 April

The last few years have seen a shake-up of permitted development rights by the coalition government aimed at introducing greater flexibility into the planning system and promoting growth.

By way of a general reminder, permitted development rights are a national grant of planning permission which allows certain building works or changes of use without the need for a planning application. Permitted development rights are generally subject to national conditions and limitations (for example limits on height, size or location etc.).  More…

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FM must ensure credits where credit’s due

A version of this article was published in Construction News on 16 February 2015

Service credits have long been a fundamental part of performance management in facilities management contracts. However, a recent decision has shed new light on the importance of keeping service credits updated as the service requirement evolves to ensure they remain enforceable.

The commercial principle of service credits is sound. With agreements covering an intricate range of services, demonstrating losses caused by specific failures is a complex process often involving effort disproportionate to the problem itself. Instead FM contracts usually include a series of fixed (or ‘liquidated’) sums payable if certain failures occur meaning that clients can more easily recover their losses and suppliers understand their risk upfront. Without such arrangements, performance management would become unworkable. More…

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The Scottish souvenir title “scams” – a storm in a teacup?

It has an understandable attraction to it. Being a Laird or Lady of some remote Highland location. To imagine yourself as some swashbuckling character in some Game of Thrones style landscape, running around in a kilt, Golden Retriever by your side, and brandishing your sgian-dubh at any trespasser who dares encroach onto your little patch of Scotland. For most non-Scots, it brings to mind a highly inaccurate, heavily romanticised, view of Scottish Highland life and simply serves to reinforce the misconceptions of quintessential Highland society.

I am, of course, talking about the infamous Highland “souvenir” plots that have proven (and continue) to be a popular choice of unique gifts. In 2010, the Daily Record reported the case of “Lord Hicks of Lochaber” (aka Kevin Hicks, a fireman from Essex) who was so pleased with his Highland plot and Lordship title that he was reported to have proclaimed: “I’ve ordered some stationery and I intend to change my passport, driving licence, all that kind of stuff”.

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