Monthly Archives: February 2013


The highly publicized case known as Eric v. Lola reached its pinnacle on January 25, 2013. In a Judgment rendered by a divided bench, the Supreme Court of Canada rendered judgement in favour of “Eric”, recognizing the constitutional validity of the existing legal treatment of “de facto” or “common law” spouses in Quebec (Quebec (Attorney General) v. A, 2013 SCC 5).

Contrary to all other Canadian provinces, common law spouses in Quebec do not enjoy the legal protections afforded to married or civil union spouses upon the breakdown of their relationship, such as the partition of the family patrimony and partnership of acquests, the right to claim a compensatory allowance, and most notably to request spousal support. Historically, the Quebec legislature justified this distinction under the guise of respecting the freedom of choice of non-married spouses who did not wish to be subject to the rights and obligations associated with marriage (or civil union).

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Taking a Closer Look at Non-Disclosure Agreements

By Amaan Gangji

A Non-Disclosure Agreement (“NDA”) is often the first agreement entered into in an M&A transaction. During the initial stages of a proposed transaction the parties will exchange confidential information in connection with the consideration and negotiation of the proposed transaction. An NDA is designed to protect confidential information from being misused and disclosed to the public. Ideally, any party providing confidential information should ensure that an NDA is in place prior to any exchange of confidential information. This applies to transactions of all sizes.

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Buying or Selling a Business in BC – Labour and Employment Considerations

By Pratibha Sharma

Employees are a valuable asset of any successful business. However, in the context of the purchase and sale of a business, buyers and sellers often do not turn their minds to key labour and employment law considerations relating to these employees until a very late stage in the transaction. The parties to a transaction should not underestimate the impact that the transition of the workforce of a target business can have on both buyers and sellers. The purpose of this article is to highlight a few key labour and employment issues that arise in virtually all business acquisition and sale transactions in BC.

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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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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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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.

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The Obligation of Good Faith on Derivative Applications Narrowed

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

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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Changes to the Live-in Caregiver Program

By Ron McKay

Effective as of April 1, 2010, regulatory and administrative changes were made to the Live-In Caregiver Program (“LCP”).

On December 12, 2009, Minister Kenney announced a combination of administrative and proposed regulatory changes to the LCP. These changes were designed to better protect the rights of live-in caregivers and to make it easier for them and their families to obtain permanent residence in Canada, while continuing to protect the health and safety of Canadians and maintaining the project objective to respond to labour market shortages.

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Temporary Foreign Worker Program – Minimum National Advertising Standards

By Ron McKay

As of January 1, 2009, “Minimum National Advertising Standards” were adopted by Human Resources and Skills Development Canada (“HRSDC”) and Service Canada (“SC”).

On May 2010, HRSDC and SC published a further notification indicating that all occupations based on the National Occupational Classification (“NOC”) system, skill levels 0, A, B, C and D, are subject to the Minimum National Advertising Standards. Failure to comply with the requirements will result in the application for a Labour Market Opinion being denied.

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