The trust and lien provisions of Manitoba’s Builders’ Liens Act are two separate remedies that exist independently and may be pursued concurrently under s. 66 of the Act, according to the Supreme Court in Stuart Olson Dominion Construction Ltd. v. Structal Heavy Steel, 2015 SCC 43. The Act is silent as to how the two remedies interact, but the text and context of the provisions, as well as the history of the Act reveal that these are two separate remedies for unpaid persons who have done work, provided services, or supplied materials for a construction project. Registering a lien bond secures the lien claim but has no effect on the existence and application of the trust remedy and does not relieve a contractor of its trust obligations under the Act. (para. 3) The court also noted that “had Dominion paid the trust monies into court, there could have been a reduction in the amount of the lien bond by an amount equivalent to the monies paid into court.” (para.48) These articles discuss the decision: Importance of builder liens, trusts both underscored in SCC decision – Lawyers Weekly The Structal Case: Are the practical realities of the construction industry being sacrificed for legal formalism? – The Court Lien Bond has no Effect on Existence and Application of Trust Remedies Under the Manitoba Builders’ Liens Act: Stuart Olson Dominion Construction Ltd. v. Structal Heavy Steel, 2015 SCC 43 – Taylor McCaffrey LLP

The Supreme Court’s decision in Chevron Corp. v. Yaiguaje, 2015 SCC 42, confirming that an Ontario court has jurisdiction to enforce an Ecuadorian court judgment against Chevron, will have “significant cross-border implications” according to commentators, “as enforcement in Canada can now be pursued against foreign companies and their Canadian affiliates even if neither party to the original dispute has a “real and substantial” connection to Canada.” According to the court, to recognize and enforce a foreign judgment the only prerequisite “is that the foreign court had a real and substantial connection with the litigants or with the subject matter of the dispute, or that the traditional bases of jurisdiction were satisfied.” (para. 27) The court also found no merit to Chevron’s assertion that the only way a real and substantial connection with the enforcing forum can be achieved is through presence or assets in the jurisdiction. “In today’s globalized world and electronic age, to require that a judgment creditor wait until the foreign debtor is present or has assets in the province before a court can find that it has jurisdiction in recognition and enforcement proceedings would be to turn a blind eye to current economic reality,” according to the court at para. 57. For a snapshot of the varying opinions on the importance of the case see: David beats Goliath? Not quite. Jurisdictional analyses in Chevron Corp v Yaiguaje and Chevron v Yaiguaje: Small Step for the Plaintiffs, (Relatively) Small Step for Mankind – both from The Court Chevron Corp. v Yaiguaje: Judicial Activism and Cross Border Complexity – Ablawg SCC sees legal pipeline reaching from Ecuador to here for Chevron – Lawyers Weekly SCC Decision Highlights Increased Litigation Risk For Canadian Companies For Misdeeds Of Their Foreign Affiliates – Canadian Appeals Monitor

In JAFT Corp v Jones et al, 2015 MBCA 77, the appeal court agreed with the application judge that the Tax Court, while it cannot grant an order of rescission, is the appropriate forum to determine the issue at the heart of the case, whether a tax assessment was correct and liability is owing. The appellants sought a court order under QB Rule 14.05(2)(d) rescinding certain employment contracts based on their position that there was an honest and fundamental mistake as to the effect of the agreements and transactions that led to the disputed tax liabilities. In the court’s view, adequate alternative remedies were available in the Tax Court and the application judge had not erred in declining jurisdiction.

Federal Bill S-4, the Digital Privacy Act, received royal assent June 18, 2015, amending PIPEDA to bring it more into line with provincial privacy legislation and introducing a new mandatory data breach notification scheme. With the exception of the data breach scheme (which will require regulations), all amendments came into force on June 18th. Details of the new legislation are outlined in the legislative summary and in the following articles: Recent amendments to Canada’s private-sector privacy legislation: What does it mean for your business? - Fillmore Riley Digital Privacy Act Amends PIPEDA - Slaw Businesses Should Re-evaluate Approach to Privacy with Passage of Digital Privacy Act and Digital Privacy Act is Now Law – McCarthy Tetrault Digital Privacy Act – Davies Despite opposition from several quarters (the CBA, the FLSC, IFIC, and others) private member’s Bill C-377, An Act to amend the Income Tax Act (requirements for labour organizations), received royal assent June 30, 2015 and will come into force and apply to the fiscal periods that begin six months after the date of assent (starting January 2016). The new law amends the Income Tax Act to require unions to file annual information returns disclosing a long list of previously undisclosed financial information such as union assets, liabilities, transactions, and certain salaries. Since the bill requires the Minister of Finance to publish the returns online, the public will have access to the information. Bill C-59, omnibus budget legislation, received royal assent on June 23, 2015. Among other things, the Bill implements income tax measures proposed in the budget and amends certain intellectual property legislation (in force by regulation or order in council). Sections 269, 278 to 291 and 298 to 302 of Economic Action Plan 2014 Act, No. 2, S.C. 2014, c. 39, will come into force January 15, 2017, by order in council P.C. 2015-441. The amendments affect the Bank Act and the acts of several other financial organizations. Provincial Sections 2, 4, 5 and 8 of The Consumer Protection Amendment and Business Practices Amendment Act (Motor Vehicle Advertising and Information Disclosure and Other Amendments), S.M. 2013, c. 34, were proclaimed in force June 1, 2015, enacting advertising of motor vehicles and all-inclusive price rules and setting out an enforcement regime. Bill 28, The Personal Property Security Amendment Act, was introduced May 25, 2015 and passed second reading June 29, 2015. As indicated in the explanatory note, the bill proposes amendments to the Act dealing with vexatious registrations.

The CRTC released further guidance on CASL compliance on September 4, 2015, providing clarification on whether you can rely on implied consent to send commercial electronic messages. The guideline addresses the difference between express and implied consent; what constitutes an existing business relationship; proving consent; and record keeping. For an up-to-date look at CASL one year in, see the Fillmore Riley article Keeping up with CASL.

The Office of the Superintendent of Financial Institutions released  Draft Guideline E-21 - Operational Risk Management for comment on August 20, 2015. The guideline, applicable to all federally-regulated financial institutions other than the branch operations of foreign banks and foreign insurance companies, sets out OSFI’s expectations for the management of operational risk. OSFI is inviting comments on the draft until October 9, 2015. For an overview of the proposed guideline see this McMillan article.

Blakes has just published a new edition of Doing Business in Canada, their almost 200 page “introductory” guide to the laws and regulations affecting the conduct of business in Canada. Force Majeure – this Aikins Law article stresses the importance of clearly defining the criteria for determining what constitutes a force majeure event. Differences Between The Oppression Remedy And Derivative Actions – this Clark Wilson article discusses Rea v. Wildeboer, 2015 ONCA 373, an Ontario decision providing “much needed guidance on the distinction between the oppression remedy and derivative actions.” Caution: All Lien Legislation is Not the Same – this Aikins Law article examines the differences between Manitoba and Ontario lien legislation. Decision opens working papers on taxes to CRA – this Lawyers Weekly article discusses the ramifications of the Federal Court decision in Canada (National Revenue) v. BP Canada Energy Company, 2015 FC 714, that the Canada Revenue Agency is entitled to access tax accrual working papers.

The 2015 Isaac Pitblado Lectures, Blackacre to BlackBerry: Redefining Property and Ownership, will explore how changing notions of property and ownership are affecting legal practice in such diverse areas as intellectual property, cyber security, digital assets, life leases, and testamentary dispositions. The lectures take place November 6-7, 2015, at the Fort Garry Hotel. For further details see the program agenda and registration form.

“OMG, They’re Insolvent! What Do We Do Now?” Insolvency and bankruptcy issues can cause complications in many areas of practice, including commercial, construction, real estate or intellectual property law. Attend this afternoon program on October 22, 2015 to learn about the latest developments in this area from our expert panel. The Aboriginal Law Series continues on December 8, 2015 with a primer on Understanding Treaties. Panelists will explore the current legal framework around treaty making and treaty interpretation in Canada, navigating between pre-confederation and post-confederation treaties, modern treaties and those treaties currently being negotiated. Register now to attend in person or by tele-presentation. The Law Society is bringing back popular presenter Martin Latz for two limited enrollment programs in December: GAIN THE EDGE!® Negotiation Strategies for Lawyers on December 3, 2015 and Advanced Negotiation Strategies for Lawyers on December 4, 2015. Register before October 30, 2015 to take advantage of the early bird discount.

Insider Trading: the Recent Cases, including Re Finkelstein, Re Agueci and others – the Securities Law section is hosting this webinar featuring Ontario Securities Commission counsel Cullen Price on October 29, 2015, from 12:15 to 1:45 pm. Participants can attend in person at the offices of Fillmore Riley LLP, or via webinar. 3rd Annual Professionalism Issues for Business Lawyers – speakers at this half-day OBA webinar will discuss the most current ethical and professionalism issues impacting business lawyers, including conflicts, entity regulation, and the benefits and pitfalls of technology.