Blog Archives

Nothing but the kitchen sink: tort immunity and covenants to insure

In its recent decision in William Osler Health Centre v. Compass Construction et al., 2015 ONSC 3959, the Ontario Superior Court of Justice considered the scope of tort immunity arising from a covenant to insure in a CCDC 2 Contract (the “Contract”). Generally, tort immunity acts to prevent a party who covenants to insure another party from suing the other party for the losses which are insured. In this case, the Court considered whether the covenant to insure and related tort immunity extended only to the portion of the subject property that was under renovation or whether it extended to other parts of the subject property that were damaged in the course of construction. 

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Update on Crowdfunding in Canada

Recently Ontario joined regulators in Manitoba, Saskatchewan, Quebec, New Brunswick and Nova Scotia (the “Participating Jurisdictions”) in adopting a new crowdfunding regime which introduces a crowdfunding prospectus exemption for issuers as well as a registration framework for funding portals. “Crowdfunding” is an umbrella term used to capture many forms of capital and fund raising through many investors using an online platform, such as Kickstarter, Indiegogo and Crowdfunder. The new rules are set out in Multilateral Instrument 45-108 — Crowdfunding (“MI 45-108”) and are aimed at facilitating capital raising for start-ups, small and medium-sized enterprises. The MI 45-108 crowdfunding regime is intended to coexist and build on the existing startup crowdfunding exemptions (the “Startup Crowdfunding Exemptions”) adopted in Manitoba, Saskatchewan, Québec, New Brunswick and Nova Scotia in May 2015 (described in further detail in our earlier newsletter).

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OSC Releases Whistleblower Policy for Comment

On October 28, 2015, the Ontario Securities Commission (“OSC”) published proposed OSC Policy 15-601 Whistleblower Program (the Policy), which describes a whistleblower program that is intended to encourage the reporting of serious securities-related misconduct in Ontario to the OSC.

Under the proposed policy, the OSC will pay an eligible whistleblower a monetary award on a scale of between 5% and 15% of the total monetary sanctions imposed or voluntary payments made by a party who breaches securities laws where the aggregate monetary sanction imposed is at least $1,000,000. 

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New Guidance on Oil & Gas Abandonment Cost Disclosure

On November 5, 2015, the Canadian Securities Administrators (CSA) published guidance for disclosure requirements for abandonment and reclamation costs respecting amendments in National Instrument 51-101 Standards of Disclosure for Oil and Gas Activities (NI 51-101) that were effective July 1, 2015 (Amendments).The purpose of the guidance is to remind reporting issuers engaged in oil and gas activities that publicly disclosed estimates of future net revenue must be net of abandonment and reclamation costs. In the Amendments, definitions for the terms “future net revenue” and “abandonment and reclamation costs” were added to section 1.1 of NI 51-101.

Item 2.1(2) of Form 51-101F1 Statement of Reserves Data and Other Oil and Gas Information (Form 51-101F1) mandates disclosure of future net revenue. Disclosure is required in aggregate by country and product type for the reserves categories specified in Item 2.1(1). Item 2.1(3) details specific disclosure of abandonment and reclamation costs. New Part 7 of Form 51-101F1 provides requirements regarding the optional disclosure of resources other than reserves.

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Canadian National Securities Project Takes Step Forward

In Canada, unlike the United States and most western economies that have a robust stock market, securities law is regulated solely by the provinces and not the federal government. Over the years, the labyrinth of laws and regulations that securities dealers and issuers need to grapple with to offer securities across Canadian provinces has been reduced through an effort by provincial securities regulators to harmonize their requirements. Some provinces are working together to establish joint securities laws. On August 25, 2015, the participating provinces published a revised draft of their proposed “Capital Markets Act”. 

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Implementation of Trademarks Act amendments pushed back to 2018

Since the Canadian Government announced massive changes to the Canadian Trademarks Act (the “Act”) in 2014, practitioners and other stakeholders in the trademark space have been anxiously awaiting its implementation.

Unfortunately we are all going to have to wait a little longer.

It is now expected that the amendments to the Act which have been passed but not yet implemented will not be implemented until sometime in 2018. This pushes out the implementation date again, from an original (and optimistic) implementation date of late 2015, and a revised implementation date of  2017, to 2018. 

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Nice-ly done: CIPO now accepting voluntary classification of goods and services

Following our post from July 2015, the Canadian Intellectual Property Office (“CIPO”) is now accepting trade-mark applications filed with goods and services classified using the Nice Classification system.  As part of this process, CIPO has also updated the online Canadian trade-marks database, such that “Nice classification” is now a possible search field.  In addition, the Canadian Goods and Services Manual has been updated to allow users to search for specific terms within all 45 Nice classes, and to cut-and-paste or import text containing a list of goods and services for proposed classification by the database

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David Austin speaks on Lax Kw’alaams First Nation seeking title claim on Petronas LNG site

David Austin commented in the Financial Post about the Lax Kw’alaams First Nation seeking a title claim on a Petronas LNG site. “While the claim does not impede Petronas if it decides to proceed with the project, the Lax Kwa’alaams could go to court and ask for an injunction,” explains David.

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The Pollution Exclusion – Focus On Causation

By Samantha Ip, with assistance by Daniel Paperny

In its recent ruling in Precision Plating Ltd v Axa Pacific Insurance Co. (“Precision Plating“), the BC Court of Appeal considered when a pollution exclusion in a Commercial General Liability (“CGL”) policy would operate to release an insurer from its duty to defend its insured in a third party lawsuit. In the past, such cases typically addressed whether the loss was “sudden and accidental” or whether the released substance fell within the definition of “pollutant”. Precision Plating was focused instead on the concept of causation in the context of exclusion clauses. 

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Alert: Significant Changes to Canadian Design Law Expected in 2016

Superior visual aesthetics are an important competitive advantage in many market sectors, including fashion, housewares and consumer electronics.

Intellectual property protection has long been available for visual aesthetics, under names such as design patent and design registration; however, it has been cumbersome and expensive to pursue and maintain in multiple jurisdictions. Conventionally, countries have had their own substantive and procedural design regimes, with little harmonization between them. For example, design representations (photographs, line drawings, CAD renderings) required for registration in one jurisdiction might be completely unacceptable in another, thus requiring duplication of effort and expense. 

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