Procedural Fairness and the Provincial Nominee Program: MBCA

In Jiang v. Manitoba (Minister of Labour and Immigration), 2014 MBCA 27, the Court of Appeal examines the workings of the two distinct streams of the provincial nominee program allowing foreign nationals to try to achieve permanent resident status in Manitoba: the business program and the skilled workers program. In refusing to quash the order of the application judge upholding the denial of the appellant's application under the business program, the court found that "the fact that the skilled workers program provides apparently more extensive (appeal) procedures does not mean that the business program (which allows for a reconsideration of an application but not an appeal) has breached procedural fairness. So long as the business program fulfilled the minimum requirements for natural justice, it does not have to provide exactly the same procedures as those provided for the skilled workers." (para. 31) The court also noted that decisions under the business program are discretionary and that merely addressing identified concerns does not entitle an applicant to be nominated. "The applicant must do more than fulfill the minimum requirements. It should be remembered that the question to be decided here is not whether this particular applicant can satisfy the Program that she will remain in Manitoba, but rather, given the pool of applicants, which of them will be most likely to remain in Manitoba and contribute to the economic development." (para. 42)

Arbitrator Must Hear Evidence in Commercial Lease Dispute: MBQB

The arbitrator erred in making a finding concerning a term of a commercial lease in the "complete absence of evidence" according to the court in Domo Gasoline Corp. v 2129752 Manitoba Ltd., 2014 MBQB 87, which remitted the matter back to the arbitrator to hear evidence concerning cigarette pricing. The lease provided for Domo to pay additional rent tied to its non-fuel sales, except those designated as "promotional sales" products. After an audit disclosed that Domo had never reported the sale of cigarettes during the 20 year lease period, the landlord issued a default notice. The arbitrator established a two part "promotional sales" test, and then, without hearing any evidence as to what price the cigarettes were sold at or how Domo arrived at its pricing strategy, found that cigarettes should have been part of the additional rent calculation since they were undiscounted.

Legislative Update

Federal

The federal government introduced Bill C-31, the Economic Action Plan 2014 Act, No. 1, on March 28, 2014. The omnibus budget implementation bill proposes several significant legislative amendments arising from the 2014 budget, including changes to the Bank Act to regulate over-the-counter derivatives and financial benchmarks; changes to the Proceeds of Crime (Money Laundering) and Terrorist Financing Act to regulate virtual currencies and introduce due diligence requirements for financial institutions; and an overhaul of the Trade-marks Act. There's no shortage of commentary on the wide-ranging changes. Here are just some of the articles:

• Important Changes To Canada's AML Laws: Here We Go Again≠ - Blakes bulletin

• Sweeping Changes to Canadian Trade-marks Act: At What Cost to Trademark Owners?, Bill C-31 And The Proposed Trademarks Act: Is it Ultra Vires? and Bill C-31: What Are The Practical Issues Of Trademark Rights In A Non-Use Regime? - Bereskin & Parr

• Fumbling Towards Accession: Canadian Government Proposes Massive Trademark Law Overhaul - Canadian Trademark blog

The Prepaid Payment Products Regulations came into force May 1, 2014, requiring federally regulated financial institutions that issue pre-paid payment products to disclose all fees, terms and conditions, and prohibiting fee increases and expiry dates not in compliance with the regulations. Further details on the new regulations can be found in this blog post.

Bill S-4, the Digital Privacy Act, was introduced in the Senate on April 8, 2014. It proposes amendments to the Personal Information Protection and Electronic Documents Act (PIPEDA) to establish mandatory breach reporting requirements and to give the Privacy Commissioner additional authority, particularly with regard to compliance agreements. For further details see the legislative summary and background documents.

Manitoba

The Manitoba Liquor and Lotteries Corporation Act and Liquor and Gaming Control Act was proclaimed April 1, 2014, amalgamating The Liquor Control Commission and the Manitoba Lotteries Corporation and modernizing liquor laws and licensing. This Winnipeg Free Press article summarizes the changes.  

Amendments to The Workplace Safety and Health Act and regulations came into force April 1, 2014. The Workplace Safety and Health Amendment Act and regulation 90/2014 will "build a stronger safety culture by providing for stop-work orders and immediate penalties for unsafe workplaces" and ensuring that workers are aware of their rights, according to this government news release. This HSInsider blog post describes the changes in more detail.

Bill 54, introduced April 17, 2014, proposes amendments to The Labour Relations Act requiring the Manitoba Labour Board to make regulations setting out the time periods within which it will make decisions following the hearing of a complaint, application or referral to the Board. In the case of applications for union certification or decertification, the Board would be required to make regulations setting out the time period within which it will hold a hearing. This government news release describes the proposed amendments in more detail.  

Bill 65, The Workers Compensation Amendment Act, was introduced April 28, 2014. As indicated in the explanatory note, the bill amends The Workers Compensation Act to broaden the offences relating to claims suppression by employers, to establish a committee tasked with preventing workplace injury and illness, to authorise an inspection authority, and to increase fines and expand administrative penalties. This news release provides a more detailed explanation of the proposed changes.

Recommended Reading

Doing Business in Canada - this 158 page McCarthy TÈtrault LLP booklet provides a broad overview of the legal considerations that non-residents should take into account to help ensure their success as they enter into business ventures in Canada. Among other things, it addresses foreign investment laws, competition law, mergers and acquisitions, taxation, real property, employment and privacy laws.  

The penalty for poor consultation - this excerpt from the CBA's Eco Bulletin newsletter discusses cases imposing penalties on the Crown for improper consultation with aboriginal groups regarding resource development. The article, written by Sacha Paul, can also be found on the TDS blog.  

Franchise Law In Canada: Where We Are And Where We Are Headed - this article discusses the growth of franchising across Canada and how it is affecting the legal profession.

Immigration Changes Impact Canadian Franchisees - Moratorium On Food Service Industry Access To Temporary Foreign Worker Program - this article looks at the recent edict barring restaurants from using the temporary foreign worker program to hire foreign workers and how it affects restaurant owners and franchisors.  

Canadian Tax - the May 2014 issue of Gowlings tax update includes articles on the McKesson case and on New Reporting Requirements for Internet-Based Businesses.

Spring CPD: LSM

May and June are busy months for CPD at the Law Society. Here's what's available:

The Great Legal Reset - Join Mitch Kowalski as he examines the challenges facing law firms and suggests a provocative model for the successful law firm of 2025. The program takes place at the Law Society classroom from 12:00 noon to 1:30 pm on May 27, 2014.  

Presenting With Confidence - The final session of the Leadership Skills series will be held May 29, 2014 from 9:00 am to 12:00 noon at the Law Society classroom. This interactive presentation will help you to hone your presentation skills and communicate more effectively.

Paul Unger of Affinity Consulting Group will present three back-to-back technology programs on June 12, 2014 at the Law Society classroom. Register for one or more sessions to learn what you need to know about iPad for Legal Professionals, Managing your Technology, and Acrobat for Legal Professionals.

Canada's Anti-Spam Law: What Your Clients Need to Know - presenters Brian Bowman and Andrew Buck will review how Canada's new Anti-Spam law is about to fundamentally alter online marketing activities in Canada at this lunch hour webinar on June 17, 2014. Register as a group and receive a discount.

MBA/CBA Programs

The Manitoba and Canadian Bar Associations are hosting several programs over the next month that may interest business lawyers:

Introduction to European Union Law - George Derwin will provide an overview of the treaties creating the European Union, EU institutions, law-making procedures and legal system at this lunch hour session on May 15, 2014. It takes place at the Law Society classroom from 12:00 noon to 1:30 p.m.  

Employee Monitoring - Melanie Bueckert, author of The Law of Employee Monitoring in Canada, will provide an update on the latest developments regarding electronic employee monitoring in Canada on May 20, 2014. The lunch hour session will be held at the Law Society classroom.

Manitoba's New Regulatory Cocktail: One Part Legislation, One Part Modernization, with a Generous Dash of Stakeholder Input - Mary M. McGunigal will provide an overview of the new regulatory regime and highlight key provisions of The Liquor and Gaming Control Act

Contaminated Sites Remediation Act Amendments - Dean Kasur, Manager Environmental Programs and Strategies - Manitoba Conservation and Water Stewardship, will discuss the amendments to The Contaminated Sites Remediation Act and Contaminated Sites Remediation Regulation which came into effect April 1, 2014. The program will be held at Civil Legal Services on June 5, 2014, from 12:00 noon to 1:30 p.m. 

The Hollinger Saga: Lessons Learned - the Business Law section will host this session with speaker John Pozios on June 5, 2014. The program takes place from 12:00 noon to 1:30 p.m. at the Law Society classroom.

Register with the CBA for these online presentations:  

Drafting and Negotiating Business Relationship Agreements - May 21, 2014

Avoiding the 10 Biggest Mistakes Business Lawyers Make - May 27, 2014

What's New in Securities Class Actions? Recent Developments & Emerging Trends - May 27, 2014

Drafting and Negotiating Shareholder Agreements - May 28, 2014

Upcoming Conferences

The topic to be explored in the 2014 Competition Law Spring Forum is the interface between competition legislation and industry-specific regulation. The one-day forum takes place May 21, 2014 at the Toronto Board of Trade.

The Canadian Bar Association's 2014 Tax Law for Lawyers Conference takes place May 25-30, 2014 in Niagara-on-the-Lake, Ontario. The conference features six days of programming highlighting significant issues in corporate and personal taxation and estate planning. See the conference agenda for further details.

Save the date for the 2014 CAIRP Annual conference, which will be held August 14-16, 2014, in Ottawa, Ontario.