Settling a Regulatory Claim Does not Preclude Subsequent Class Action: SCC

Investors benefitting from a regulatory settlement for market timing trading in mutual funds are not precluded from seeking certification in a class action proceeding against the mutual fund managers following the SCC decision in AIC Limited v. Fischer, 2013 SCC 69. The decision clarifies the "preferable procedure" analysis at certification and examines how access to justice concerns underlie that analysis. These articles discuss the implications of the decision:

• Supreme Court Clarifies Class Action Preferability Analysis And Ability To Bring Civil Claims Following The Settlement Of Alleged Regulatory Offences, Davies;

• Regulatory Settlement Will Not Prevent Class Action: SCC Certifies Fischer, McCarthy Tetrault.

Facilitating Interprovincial Cooperation in Securities Regulation: SCC

• Supreme Court Of Canada Clarifies The Limitation Period For Secondary Proceedings In Securities Enforcement Context, Osler;

• Securities Regulation: The Supreme Court Of Canada Speaks Again, Bennett Jones;

• Supreme Court Defers To Securities Commission On The Interpretation Of Limitation Periods In Secondary Proceedings, Dentons.

Indirect Purchaser Class Actions Given Green Light: SCC

Three recent Supreme Court of Canada cases clarify Canada's test for certification of class actions and open the door for consumers to use class actions to bring indirect purchaser price-fixing claims: Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57, Sun-Rype Products Ltd. v. Archer Daniels Midland Company, 2013 SCC 58, and Infineon Technologies AG v. Option consommateurs, 2013 SCC 59.

• Supreme Court of Canada trilogy holds that indirect purchasers may advance class action for recovery of unlawful price-fixing, McMillan;

• Canada's Supreme Court Reshapes Consumer Class Actions and Clarifies the Test for Certification Across Canada, Osler;

• Supreme Court releases the indirect purchaser trilogy, McCarthy Tetrault.

"Badges of Fraud": MBQB

The AG can proceed in its action to recover unpaid income taxes from the old Transcona Country Club following the dismissal of the new club's summary judgment appeal in The Attorney General of Canada v. Transcona Country Club Limited, 2013 MBQB 216. The court was satisfied that there was circumstantial evidence as to whether the sale of the old TCC's assets was a fraudulent conveyance. In addition, the court concluded that the AG met its burden of proof to proceed to trial on the issue of piercing the corporate veil and with respect to the oppression remedy.

Anti-Spam Law in Force July 1, 2014

Industry Canada released revised and final CASL regulations on December 4, 2013, and confirmed that most of Canada's long awaited anti-spam legislation will come into force July 1, 2014. Provisions dealing with installation of computer programs and the CASL private rights of action will come into force January 15, 2015 and July 1, 2017 respectively. Information about the law and regulations can be found here, in the regulatory impact analysis statement, and in the following articles which discuss the implications of the changes for businesses, charities, and their advisors:

• Anti-Spam Law to Come Into Force on July 1, 2014 - BLG article summarizing the requirements of the new law and the exemptions;

• Canada's Anti-Spam Law Is Coming - Are You Ready? - snIP/ITs blog post;

Update on Legislation

The Securities Act to allow the Manitoba Securities Commission to regulate over-the-counter derivatives. It also provides for the recognition and regulation of clearing agencies and trade repositories, among other things.

Securities Update

Manitoba is one of three provinces (with Ontario and Quebec) to have published province-specific harmonized derivatives rules, which take effect December 31, 2013. A detailed discussion of the new rules can be found in this Dentons' article.

The Canadian Securities Administrators have published for comment proposals to amend the regulatory framework for trading in securities and managing investment funds under the national registration rules (National Instrument 31-103 and related instruments). Key elements of the proposed amendments are discussed in this Norton Rose Fulbright article. Comments must be received by March 5, 2014.

The Manitoba Securities Commission (like most other provincial regulatory authorities) has published for comment Multilateral CSA Notice 45-312, which proposes a new prospectus exemption that would allow TSX-V issuers to raise capital by distributing securities to their existing security holders. This Dentons' article describes the proposed exemption. Comments must be made by January 20, 2014.

Companies' Creditors Arrangement Act panel on October 29, 1013. The panel judges are dedicated to dealing with court appointed receivers and orders under the act and the practice direction sets out the procedure to be followed when bringing an application before a member of the panel.

Recommended Reading

Contract law update: developments of note - this Lawson Lundell paper identifies the important trends in commercial and business contracts arising from the year's contracts case law;  

The decision in CFI Trust v. Royal Bank of Canada, 2013 BCSC 1715 is "essential reading for counsel assisting financial institutions and any business dealing in secured transactions" and contains "one of the best (opening paragraphs) in the history of Canadian law" according to the author of the BLG article Important new decision clarifies claims against financial institutions and defences under the Personal Property Security Act.

The November 2013 edition of the CBA's Business Law section newsletter contains articles titled Proposed cooperative capital markets regulator and Commercial restrictive covenants enforceable, as well as an update on the CBA Legal Futures Initiative from the business structures and innovation team.

Sales Tax - the CBA's Commodity Tax, Customs and Trade section newsletter contains articles on Customs Notice 13-015, Nominee corporations and JV elections, tax planning and implementation, and assessing GST/HST for financial services.

Leadership Skills Series: Tools, Techniques and Strategies

The Law Society has developed a series of continuing professional development sessions designed to help lawyers become leaders. The next session in the series, Resilience and Embracing Change, focuses on change management. It is designed to help lawyers manage the people side of change and support themselves and their staff through transitions. It takes place February 7, 2014, from 9:00 a.m. to 3:00 p.m. at the Law Society classroom. Presenters Judy Mathieson and Denise Zaporzan will also host upcoming sessions in the series: Generational Diversity: Maximize Performance Throughout Your Organization (March 14, 2014), and Presenting With Confidence (May 29, 2014). Register for more than one session and save money.

2014 MBA Mid-Winter Conference

The Manitoba Bar Association's Mid-Winter Conference will be held January 23-25, 2014, at the Fairmont Hotel. Continuing professional development sessions are scheduled all day Thursday and Friday, and include the following sessions of interest to business lawyers: The Commissioner of Competition's Annus Horribilis in the Competition Tribunal; Effective Lease Review; Canada's New Anti-Spam Law; and Farming Operations for the 21st Century.  

Spring Conferences

The dates have been set for the CBA's annual spring conferences on competition and tax law. The 2014 Competition Law Spring Forum will be held May 21, 2014 at the Toronto Board of Trade, and the 2014 Tax Law for Lawyers Conference takes place May 25-30, 2014 at Niagara-on-the Lake, Ontario. See the CBA website for further details or to register.