Supreme Court Clarifies Tort of Causing Loss by Unlawful Means

In A.I. Enterprises Ltd. v. Bram Enterprises Ltd., 2014 SCC 12, the Supreme Court found no liability for the tort of causing loss by unlawful means on the part of a family member whose actions in thwarting the sale of a family owned apartment building to outsiders caused a $400,000 loss, since his conduct would not have been actionable by the third party had the third party suffered the loss. The decision clarifies the scope of the tort of unlawful interference with economic relations, which the court said should be kept within narrow bounds. The court upheld the finding of the trial judge that the dissenting member was otherwise liable, however, for breaching his fiduciary duty as a director and sole shareholder of the company which managed the family's rental buildings.

Utilization of MTS Pension Surplus to be Negotiated: SCC

The "new" MTS employee pension plan (put in place when MTS was privatized in 1997) contravened the Act and memorandum of agreement governing the privatization according to the Supreme Court in Telecommunications Employees Association of Manitoba Inc. v. Manitoba Telecom Services Inc., 2014 SCC 11, by violating the s.15(2) requirement that any new plan must provide equivalent "value" (which the court interpreted to include both in the benefits paid to plan members and in the funding mechanism used to produce the benefits). The 43 million dollar plan surplus, which had been funded solely by employees, was no longer accessible to members under the new plan, and this violated the equivalency requirement. The court reinstated the trial judge's remedial order for the parties to negotiate utilization of the funds and arrive at a mutually agreeable implementation process.

Copyright Clarity: SCC

Leave to Appeal Granted re CCAA Holdback Order: MBCA

Although special deference is normally accorded to decisions of CCAA judges and leave to appeal is granted sparingly, the court in Puratone et al., Re, 2014 MBCA 13, granted leave to two secured creditors to appeal the supervising judge's order holding back almost a million dollars from the general holdback monies in a CCAA proceeding and dedicating them to an unproved and unsecured claim (which was to proceed following the lifting of the stay of proceedings order by the same judge). The secured creditors argued, among other things, that the practical effect of the holdback order was to elevate the unproven, unsecured claim ahead of their secured claims and that this improper reordering of priorities in the CCAA proceedings was a point of some significance to CCAA practice. The judge agreed that the leave application raised a question of importance to the practice and was satisfied that it was neither frivolous nor likely to hinder progress in the CCAA proceeding.

Sole Director's Improper Act Warrants Piercing of Corporate Veil: ONCA

The court has inherent discretion to pierce the corporate veil where appropriate according to the Ontario Court of Appeal in Shoppers Drug Mart Inc. v. 6470360 Canada Inc. (Energyshop Consulting Inc./Powerhouse Energy Management Inc.), 2014 ONCA 85. In this case, the court pierced the corporate veil to find the sole director and controlling mind of a corporation personally liable for the money misappropriated by his corporation, since he had signing authority over the accounts and authorised the transfer of significant amounts of money. The Canadian Appeals Monitor blog post, Piercing The Corporate Veil May Be Easier Than You Think, discusses the decision.

Legislative Update

The Securities Amendment Act (except ss. 1, 40, 44, 49 (c) and 53) was proclaimed in force December 31, 2013. The amendments allow the Manitoba Securities Commission to regulate over-the-counter derivatives, trading, clearing agencies, and trade repositories. Along with Ontario and Quebec, Manitoba has published proposed rules (MSC Rule 25-503) to regulate clearing agencies. MSC Notice 2013-49 explains the transitional matters relating to the regulation of derivatives under the amended act.

More on Anti-Spam Law

Reaction to the news that Canada's long anticipated anti-spam legislation will come into force July 1, 2014 continues to dominate the legal blogosphere. Some recent helpful additions:

• CASL Resource Centre: How to Get Ready for Canada's Anti-Spam Law - Davis LLP.

• Canada's Anti Spam Legislation: How Will You Market Post July 1, 2014? and Planning For Canada's Anti-Spam Legislation (CASL) - Suggestions For Auditing Your Organization's Current Electronic Communications Practices - Miller Thomson.

• Tool to Navigate the Regulatory Maze - Norton Rose Fulbright.

• Anti-Spam Law To Come Into Force On July 1, 2014: Impact On Charities And Not-For-Profits - BLG.

Industry Canada is conducting public consultations on a full range of CBCA corporate governance matters with a view to amending the Act to ensure the effectiveness of its governance framework. The issues under review are described in the Industry Canada discussion paper and in this Stikeman Elliott blog post. Interested parties are invited to submit their comments no later than May 15, 2014.

Year in Review Articles

Something about the start of a new year causes us to reflect on what has passed and offer predictions for the future. Here are links to some of this year's best articles arising from that impulse:

• Top Ten Canadian Franchise Law Cases And Developments Of 2013 - Cassels Brock.

• 10 Most Important Appeals Of 2013 - Canadian Appeals Monitor.

• Lexpert Top Ten Deals of 2013 - Lexpert magazine.

• Securities Law 2013: The Year In Review And What's Ahead For 2014 - McMillan.

• Five posts on securities regulatory developments to watch in 2014: Director tenure, Pay-ratio disclosure, Securities class actions and fraud-on-the-market theory, Shareholder activism and engagement: what direction?, Shareholder proposals and director election - Stikeman Elliott.

• Key Trends for 2014 Annual Report 2013 - Blakes Competition, Antitrust & Foreign Investment Group.

• Shareholder Activism in Canada - Looking Back and Looking Forward - The Official Activist Investing Blog.

Recommended Reading

The February 2014 edition of the CBA's Practice Link bulletin contains articles on navigating the business of law and a CBCA update.

If your business clients are seeking advice on whether to accept bitcoin as payment you'll want to read the following articles which examine the legal and practical implications of the unregulated currency: Legal Implications Of Accepting Bitcoin As Payment and Bitcoin E-Gold Rush: Unregulated Technology Gains Currency.

Banking for Federalism: SCC to hear Appeal in Bank of Montreal (BMO) v. Marcotte - this article from The Court discusses a trilogy of banking cases soon to be heard by the Supreme Court of Canada which the author argues have the potential to shape the future of federalism.

The cross-border perspective: name changes and other post-filing or registration events under the UCC and the PPSA - this blog post by an American lawyer discusses some of the differences between Canadian and US law on personal property security interests. The blog is a good resource for Canadian lawyers representing businesses with interests in the United States.

Federal and Manitoba 2014 Budget Highlights

Highlights of the recent federal and Manitoba budgets can be found in the following articles:

• Highlights Of Canada's 2014 Federal Budget - Torys LLP.

• Budget Briefing 2014 - Osler.

• 2014 Federal budget: More tightening, few tax breaks - pwc.

• 2014 Federal Budget - Selected Tax Measures - Blakes.

• 2014 Manitoba budget: Tax highlights - pwc.

Facta

Spring CPD: LSM

New Manitoba Private Sector Privacy Legislation (Bill 211) - On September 13, 2013, Bill 211, The Personal Information Protection and Identity Theft Prevention Act (PIPITPA) received royal assent, making Manitoba the fourth Canadian province to enact general private sector privacy protection legislation. Subject to specified exemptions, Bill 211 will apply to all organizations that operate in Manitoba and that collect, use and disclose personal information (including personal employee information). Join privacy law expert Brian Bowman at this webinar presentation on March 27, 2014, for a practical discussion of what you need to know about the new regime.

Things you Need to Know About Wrongful Dismissal - Join Robin Kersey and Jeff Palamar for a lively webinar discussion on what you need to know to advise employers and employees in wrongful dismissal cases. The webinar takes place from 12:00 noon to 1:00 p.m. on April 8, 2014. Discounts are available for group registrants.

Upcoming Conferences: CBA

Conference season is approaching fast. Options which may interest business lawyers include:

• The 2014 CCCA National Conference takes place April 6-8, 2014 in Calgary, Alberta. Its theme is Energy Matters.

• The 2014 Competition Law Spring Forum will be held May 21, 2014 at the Toronto Board of Trade.

• The 2014 National Charity Law Symposium will be presented live at the Toronto Board of Trade and online on May 23, 2014.

• The 2014 Tax Law for Lawyers Conference will be held May 25-30, 2014 at Niagara-on-the-Lake, Ontario.

• The 2014 National Environmental, Energy and Resources Law Summit takes place in Ottawa on May 29-30, 2014.