Legal Updates

Access Board Seeks to Revise Accessibility Standards for Information and Communications Technology of Federal Agencies and Certain Technology Manufacturers, Moving to Functionality-Based Approach

On February 18, 2015, the U.S. Architectural and Transportation Barriers Compliance Board (the “Access Board”) announced the release of its Notice of Proposed Rule Making (“NPRM”), refreshing and revising the existing accessibility requirements under Section 508 of the Rehabilitation Act of 1973 (“508 Standards”) and Section 255 of the Communications Act of 1934 (the “255 Guidelines”), and merging them into a single rulemaking intended to support the accessibility of Information and Communications Technology (“ICT”) for individuals with disabilities in the federal sector.

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Ontario Court Addresses Rarely Considered E&O Exclusion

By David Buxton-Forman

In its recent decision in Hollowcore v. Visocchi, the Ontario Superior Court of Justice analyzed a rarely considered exclusion typically found in the errors and omissions (“E&O”) policies issued to engineers and architects. The exclusion removes cover for losses arising from the professional’s failure to complete drawings, specifications or schedules in time, unless the delay is the result of error or inaccuracy in the document preparation. It appears the Hollowcare judgment is the first reported judicial comment on this exclusion in Canada.

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ERISA at 40: A Time to Assess Multiemployer Defined Benefit Pension Plans

As the 40th anniversary of the landmark Employee Retirement Income Security Act (ERISA) is noted, an article by Allen B. Roberts featured in the Winter 2014 Benefits Law Journal observes that participating employees and contributing employers – as the primary stakeholders in the fortunes of multiemployer defined benefit pension plans – may not be among the celebrants. Employees who should benefit from retirement contributions and the employers who fund the payments are encountering a world different from that anticipated with the passage of ERISA. Increasingly, employers and their employees are questioning whether the promise of retirement security can be delivered cost effectively — or at all — by defined benefit pension plans maintained under union contracts. While some employers have avoided, or moved away from, the defined benefit plan model – favoring defined contribution plans or other retirement programs – those having ongoing commitments must face the current and prospective realities of the multiemployer defined benefit plans to which they are obligated to contribute.

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Contract Enforceability is a Matter of Substance over Form

Hoban Construction Ltd. v. Alexander, 2012 BCCA 75

Does a handwritten document, hastily drafted and signed in a gravel pit, constitute a legally binding contract?

The parties to the action had known each other for some time before they went into business together. The parties invested in the Malakwa Mill, which was involved in the production of wood veneer. Later, the appellants, using the notice provisions of a unanimous shareholders agreement (“USA”), advised the respondent that it wished to sell its shares in the business venture. A crude, handwritten document, parts of which were not decipherable by the trial judge, served as the alleged agreement to purchase the appellants’ shares. The respondent refused to complete the share purchase and, ultimately, the appellants sold their shares for a much lower amount to other purchasers. The appellants sought the difference, some $600,000, from the respondent.

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Website Users May be Bound by Contract Terms

Century 21 Canada Ltd. Partnership v. Rogers Communications Inc., 2011 BCSC 1196

A treatise on browsing, indexing, scraping and republishing internet content.

A case that brought to the forefront of Canadian law “browse wrap” agreements, indexing and scraping of content by search engines generally, and vertical search engines specifically, was the 434 paragraphtour de force judgment of the B.C. Supreme Court in Century 21 Canada Ltd. Partnership v. Rogers Communications Inc., 2011 BCSC 1196. The plaintiffs were Century 21 (a real estate agency) and two of its realtors. Century 21 developed a website where it published real estate listings generated by the realtors, including property information, prose description and photographs. On the other side of the dispute was Rogers and its subsidiary Zoocasa, which referred to itself as a “vertical search engine” that “scraped” and aggregated real estate listings and other related information from different sources, including from websites of real estate agencies like Century 21. Although the court found that “scraping” was not yet a universally accepted term of art, it generally accepted the following distinction between indexing and scraping:

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Forum Selection Clauses Govern

Preymann v. Ayus Technology Corporation, 2012 BCCA 30

The latest word on the enforceability of forum selection clauses.

The issue on this appeal was the enforceability of a forum selection clause in which the parties chose Austria as the forum in which to resolve any disputes arising from their agreement.

The chambers judge held that BC had territorial competence but declined jurisdiction due to the forum selection clause. Accordingly, the action was stayed.

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The Court of Appeal Settles the Priorities between Lien Claimants and Mortgagees

Bank of Montreal v. Peri Formwork Systems Ltd. 2012 BCCA 4

The latest word from the Court of Appeal on priorities between lien claimants and mortgagees and their receivers.

This Court of Appeal decision relates to an incomplete construction project in Squamish known as “Coastal Village”. The Bank of Montreal was the lead lender on the construction project and, as of June 30, 2009, just over $29 million was owing to the bank. Demand was made and shortly thereafter the owners of the project obtained a stay under the Companies Creditors Arrangement Act (the “CCAA”).

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The Obligation of Good Faith on Derivative Applications Narrowed

Holdyk v. Adolph, 2012 BCCA 37

Does the intention to wind up a company demonstrate a lack of good faith for those seeking to bring a derivative action?

This is an appeal from a dismissal of an application for leave to commence a derivative action. The main allegation by the appellant was that a bank account had been opened by the respondents using forged documents and then roughly $340,000 was diverted or withdrawn within a couple of months. The appellants sought to bring an action in the name of the company for this loss.

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ADC completes inquiry into anti-circumvention activity in relation to aluminium extrusions

The Anti-Dumping Commission (“ADC”) has completed its inquiry into the alleged anti-circumvention activity of five importers (“Importers”) of aluminium extrusions exported by Pan Asia (“Goods”), which have allegedly avoided the intended effect of the duty imposed on certain aluminium extrusions imported from China.

The findings set out in the ADC’s Final Report (“Report”), include that:

  • goods subject to dumping and countervailing duties were exported to Australia from a country to which the notice applied; and
  • the Importers sold the Goods in Australia without increasing the price commensurate with the amount of the duty payable under the Dumping Duty Act (by way of selling the goods at a loss). More…
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The Lenovo/Superfish Scandal: What You Need to Know

superfishReports in the last week stated that the computer manufacturer Lenovo had preloaded software onto various lines of computers which critically compromised cybersecurity. The software in question is a product called Superfish Visual Discovery, a program generally designed to replace advertisements seen while browsing the Internet with ads provided by Superfish. However, the method of implementation opens up a universe of potential problems.

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