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eLaw - Business Law Update
November 2014 - No. 65
ISSN 1916-3916
In This Issue
Banks Must Reimburse Consumers For Undisclosed Charges: SCC
Compelling Reasons Required to Justify Lifting of BIA Stay: MBQB
Legislative Update
Manitoba Securities Commission Announcements
New Price Maintenance Enforcement Guidelines: Competition Bureau
Property Registry Changes
Recommended Reading
Continuing Professional Development: LSM
MBA/CBA Programs

Banks Must Reimburse Consumers For Undisclosed Charges: SCC


Pursuant to a trilogy of class action cases (Bank of Montreal v. Marcotte, 2014 SCC 55, and companion cases Amex Bank of Canada v. Adams, 2014 SCC 56 and Marcotte v. FÈdÈration des caisses Desjardins du QuÈbec, 2014 SCC 57) brought under Quebec's Consumer Protection Act, five banks must reimburse consumers for undisclosed conversion charges applied to foreign exchange transactions and pay punitive damages for their failure to disclose. The court found that neither the doctrine of interjurisdictional immunity nor the doctrine of paramountcy were engaged, and concluded at para. 84 that banks are not immune from provincial laws of general application and that "(t)here are many provincial laws providing for a variety of civil causes of action that can potentially be raised against (them)." The Marcotte decision will likely have implications beyond Quebec and even outside of the banking context according to these commentators:
Compelling Reasons Required to Justify Lifting of BIA Stay: MBQB

In Bankruptcy of Jason James Paul Wagner, 2014 MBQB 191, the court declined to lift a stay of proceedings imposed under s. 69.1(1) of the Bankruptcy and Insolvency Act as part of a  Division 1 Proposal, agreeing with the bankrupt's characterization of the motion as "wanting the court to sanction a preference of the interests of a disappointed investor over the interest of the company's secured lender and judgment creditor..." (para. 46). The corporate applicant had argued that the stay should be lifted to allow it to continue its application against the bankrupt for a declaration of oppressive conduct under The Corporations Act. The court noted that the applicant's claim was open to challenge on several bases, including the fact that: (1) the applicant was not a creditor of the bankrupt; (2) the notice of application was deficient; (3) the applicant's evidence did not reveal the requisite "compelling reason" or "material prejudice;" and, most importantly, (4) lifting the stay would jeopardize the bankrupt's ability to comply with his obligations under the terms of the Proposal.
Legislative Update

Federal

Sections 242 to 248 and 250 of the Economic Action Plan 2014 Act, No. 1, came into force October 12, 2014, amending the Employment Insurance Act and Part III of the Canada Labour Code with respect to sickness benefits for claimants receiving compassionate care benefits or parents of critically ill children benefits.
 

Section 277 of the Economic Action Plan 2013 Act No. 2, amending the Canada Pension Plan Investment Board Act, came into force October 9, 2014.
 

Sections 195 and 196 of the Jobs and Growth Act, 2012 came into force October 9, 2014, amending the Canada Pension Plan.
 

The federal government introduced Bill C-43 on October 23, 2014. Economic Action Plan 2014 Act, No. 2 is a second omnibus bill implementing provisions of the last federal budget. Among other things, it introduces amendments to intellectual property law (the Patent Act and the Industrial Design Act); the Income Tax Act; the Aeronautics Act; and the Federal-Provincial Fiscal Arrangements Act (to allow provinces to set minimum residency requirements for refugee claimants seeking social assistance). Notably, Division 28 of Part 4 enacts the Extractive Sector Transparency Measures Act, a "game changer for the extractive industry," imposing mandatory reporting requirements for entities engaged in the "commercial development of oil, gas or minerals." Details of the bill can be found in the executive summary and in these publications:
Provincial

 Sections 1, 2, 6 to 8, 10, 11, 13 and 14 of The Workers Compensation Amendment Act were proclaimed into force October 15, 2014, establishing a prevention committee to oversee SAFE Work Manitoba on workplace prevention initiatives, public awareness campaigns, planning, and budgeting. The balance of the Act (introducing greater rewards for employers who act to increase workplace safety and penalizing those who suppress claims) will come into force January 1, 2015. See the explanatory note to Bill 65 and the government news release for further details.

The Apprenticeship Employment Opportunities Act (Public Works Contracts) was proclaimed September 30, 2014 and will come into force November 3, 2014. It requires the government of Manitoba and any public sector body designated in the regulations to develop and implement an apprenticeship policy such that only contractors who employ apprentices qualify for public works contracts.
Manitoba Securities Commission Announcements

Manitoba is among several provincial securities regulators to announce final amendments to National Instrument 58-101 (Disclosure of Corporate Governance Practices) and Form 58-101F1 (Corporate Governance Disclosure), expected to come into effect December 31, 2014. The amendments will require non-venture issuers to provide annual disclosure (in their proxy circular or information forms) regarding the representation of women on their boards and in senior management positions. A copy of the rule amendments, a summary of the changes, and the comments and responses of participating jurisdictions are appended to this copy of the notice.

The Commission has also announced changes to its derivatives trade reporting rule (91-507) and reminds derivatives market participants about the requirement to obtain a Legal Entity Identifier by October 31, 2014, the date the amendments came into force.
New Price Maintenance Enforcement Guidelines: Competition Bureau

The Competition Bureau released Price Maintenance Enforcement Guidelines on September 15, 2014, outlining the Bureau's approach to enforcing s. 76 of the Competition Act, including with respect to common business practices such as minimum resale pricing, manufacturer-suggested resale pricing and minimum advertised pricing.
Property Registry Changes

As part of its Client Service Improvement Initiative, the Property Registry is introducing a new advanced accounts management system. All clients doing business with the Property Registry will be required to have a Land Titles Deposit Account. Any law firms handling matters that involve LTO filings must implement a client file numbering system by January 2015 in order to meet Law Society trust accounting requirements. Lawyers with questions on how the new system will affect their trust accounting practices are advised to read this post on the Law Society website and to attend one of the upcoming continuing professional development session on this topic (described below).

The Registry has also announced fee changes effective January 4, 2015.   
Recommended Reading 
Continuing Professional Development: LSM 

New Legislation: The Municipal By-Law Enforcement Act - Courts will no longer enforce municipal by-law infractions once this new legislation is proclaimed and municipalities need to prepare now for this major change. Learn what you need to know to help your municipal clients set up new systems at this November 7, 2014 lunch program.

The Property Registry Land Titles Deposit Accounts - Law firms handling matters that involve Land Titles Office filings must set up a Land Titles Deposit Account and implement a client file numbering system by January 2015 in order to meet Law Society trust accounting requirements. Register to attend one of these in-person or tele-presentation sessions to learn how to relate the Property Registry changes to your daily processes, and to ensure you meet your professional obligations.

Everyday Ethics Series - Register for multiple sessions in this 6 month series of lectures on ethics issues featuring Allan Fineblit, Q.C. and save money as you learn what you need to know to practise responsibly. Upcoming sessions include Money 101 (Billing, Accounting, Borrowing and Lending) on December 3, 2014, and Privilege and Confidentiality on January 9, 2015.
MBA/CBA Programs

Recent Amendments to the Trade-marks Act - Presenters Sam Gabor and Kelsey Desjardine, will review changes to the Trade-marks Act likely to come into force in 2015 and examine their impact on trademark practice in Canada. The lunch hour program will take place November 26, 2014 at the offices of Taylor McCaffrey LLP.

Members and non-members can participate in these online CBA programs:
Anti Money Laundering: Regulatory Updates and Best Practices - learn what you need to know to comply with the new anti money laundering regulations at this November 13, 2014 webinar.

Corporate Tax: An Introduction (YLD) - this half-day webcast will give you the tools to address common tax challenges in commercial transactions. It takes place December 8, 2014.
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