In Royal Bank of Canada v Keller & Sons , 2016 MBCA 46, the court dismissed the appeal of two unsecured creditors who argued that the Receiver had compromised the integrity of the farm sale process by not properly considering the interests of unsecured creditors and by asking one of them to make an offer that included a settlement proposal for outstanding disputes. The court acknowledged that the interests of unsecured creditors must be taken into account when reviewing the fairness of sale processes, but in this case, where the shortfall meant only secured creditors had a material interest in the proceeds, it was reasonable for the Receiver to reject the settlement proposed by the unsecured creditor in favour of a higher offer.

Relying on the jurisprudential foundation concerning the interpretation of commercial contracts set forth in Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, the court in Elias et al. v. Western Financial Group Inc., 2016 MBQB 75 used parol evidence to interpret an equity injection adjustment clause in a unanimous shareholder agreement which differed significantly from similar clauses in the parties’ share purchase and shareholder agreements. Given the fact that the SA, SPA and USA were clearly related to each other and to the future share purchase, and given the lack of clarity concerning the meaning of the three EIA clauses, the court found it necessary to consider the circumstances surrounding the preparation and execution of the USA. In the end, the court found that the different wording in the SPA was unintentional and incorrect, and ordered that it be rectified to render it consistent with the EIA clause in the USA.

The narrow issue for determination by the master in Bankruptcy of Tammy Lynn Lloyd, 2016 MBQB 66, was whether registration of a financing statement at a later time but on the same date as an assignment in bankruptcy is made, is sufficient to provide priority to the secured creditor over the trustee in bankruptcy, in light of s. 20(b)(i) of The Personal Property Security Act. “To allow PPR registrations later on the same day as an assignment in bankruptcy has occurred would frustrate the purpose of the BIA, and in particular, section 71,” said the court, and in such conflicts “the doctrine of federal paramountcy applies and the federal statute governs.” (para. 26) The auto leasing company’s appeal of the trustee’s disallowance was dismissed.

The court granted a property owner’s application to vacate a lien filed out of time by a sub-contractor in 6705058 Manitoba Ltd. v. Penguin Heating and Cooling Technologies Inc., 2016 MBQB 62. The issue considered by the court was whether and when the sub-contract was abandoned. After articulating and applying the principles concerning abandonment at para. 40, the court concluded that the sub-contractor had no intention to perform any further work on the property and knew or ought to have known that it had received notice of termination on the date of abandonment. The court also rejected the sub-contractor’s argument that the time was extended by a later inspection of the property and delivery of materials, finding at para. 50 that the attendances at the property were unauthorized and not performed pursuant to the sub-contract giving rise to the lien rights.

In Stuart Olson Construction Ltd. v. Structal Heavy Steel, 2016 MBQB 56, the most recent decision in the ongoing stadium litigation, the court ordered Stuart Olson to pay more than 4 million dollars into court to the benefit of Structal under the trust provisions of the Builders’ Liens Act, but dismissed Structal’s motion seeking damages in the same amount for breach of the trust provisions. Even if jurisdiction existed to consider ordering compensation on a summary basis, it would be inappropriate to do so, said the court, given the complex issues to be determined between these litigants, including rights of set-off, res judicata, abuse of process and issue estoppel.

Federal Bill C-15, the Budget Implementation Act 2016, No. 1, introduced April 20, 2016, passed second reading on May 10, 2016 and is now before the Standing Committee on Finance and before the Senate for pre-study. The bill implements certain initiatives from Budget 2016, including changes to the Canada Deposit Insurance Corporation Act and the regulatory system governing financial services. The backgrounder outlines the key measures in the legislation. For further information on the proposed bail-in regime see: Federal Government Introduces Bail-In Legislation: Bill C-15 - McCarthy Tétrault Amendments to Canada’s Bank Restructuring Legislation: Bail-In and Financial Contract Safe Harbours - Blakes Bill C-15 Implements Bank Recapitalization Regime – Torys LLP Bill C-4, An Act to amend the Canada Labour Code, the Parliamentary Employment and Staff Relations Act, the Public Service Labour Relations Act and the Income Tax Act, passed second reading on March 7, 2016 and was referred to a standing committee for study. The committee adopted the bill without amendment on May 9, 2016. Bill C-4 repeals two labour-related bills passed by the former government: it amends the Canada Labour Code, the Parliamentary Employment and Staff Relations Act and the Public Service Labour Relations Act to restore the procedures for the certification and the revocation of certification of bargaining agents that existed before June 16, 2015. It also amends the Income Tax Act to remove the requirement that labour organizations and labour trusts provide annually to the Minister of National Revenue certain information returns containing specific information that would be made available to the public. For further information on the latter, the Bill C-377 amendments to the Income Tax Act, see the CBA article Contained explosion: CBA comments on just a piece of Bill C-4 Bill C-5, Economic Action Plan 2015 Act, No. 1, was introduced and received first reading on February 5, 2016. It repeals Division 20 of Part 3 of the Economic Action Plan 2015 Act, No. 1, which authorizes the Treasury Board to establish and modify terms and conditions of employment related to the sick leave and disability regime of employees of the core federal public administration, notwithstanding the provisions of the Public Service Labour Relations Act. S-201, the Genetic Non-Discrimination Act, passed by the Senate with amendments on April 14, 2016, received first reading before the House of Commons on May 3, 2016. It prohibits any person from requiring an individual to undergo a genetic test or disclose the results of a genetic test as a condition of providing goods or services to, entering into or continuing a contract or agreement with, or offering specific conditions in a contract or agreement with, the individual. Specifically it amends the Canada Labour Code to protect employees from being required to undergo or to disclose the results of a genetic test, and provides employees with other protections related to genetic testing and test results. It also amends the Canadian Human Rights Act to prohibit discrimination on the ground of genetic characteristics. Provincial Sections 2 to 4, 5(1)(b), 6, 7 (insofar as it enacts section 59.11) and 8 to 12 of The Employment Standards Code Amendment Act (Leave for Victims of Domestic Violence, Leave for Serious Injury or Illness and Extension of Compassionate Care Leave), S.M. 2016 c.2, have been proclaimed in force effective June 1, 2016. The legislation, the first of its kind in Canada, amends The Employment Standards Code to allow employees who are victims of domestic violence to take up to 10 days of leave, as well as a continuous leave period of up to 17 weeks. The proposed legislation is described as innovative and ground breaking in these blog posts: Manitoba Employment Standards Legislation to Include Leave for Victims of Domestic Abuse – Lawson Lundell Victims of domestic violence could get paid leave in Manitoba - FindLaw Canada Manitoba Proposes Domestic Violence Leave - Slaw As noted in this TDS post, other new leave of absence provisions (compassionate care and long term leave for serious illness) have been added to the Code effective April 1, 2016.

The Competition Bureau released updated Intellectual Property Enforcement Guidelines on March 31, 2016. The guidelines discuss the circumstances in which the Bureau, acting under the Competition Act, would seek to restrain anti‑competitive conduct associated with the exercise of IP rights to maintain competitive markets.

Amendments to the Canadian take-over bid and early warning regimes (set out in National Instrument 62-104) were adopted by all provinces and came into force May 9, 2016. Key changes include: extending the minimum deposit period to 105 days (from 35); a minimum tender requirement of more than 50% of the outstanding securities subject to the bid; and a minimum extension period of 10 days after the minimum tender condition and other requirements have been met. See these articles for further details on the new regime: Amendments to Canadian take-over bid and early warning regimes now in force - Osler 105-day take-over bids - what impact on take-over defences? - BLG Canada's New Take-Over Bid Rules Seek To Level The Playing Field – McCarthy Tétrault

The Board’s Role in Crisis Management – this Osler white paper prepared for the Institute of Corporate Directors discusses board attitudes and approaches to crisis management and summarizes the findings of a comprehensive survey, roundtable meetings, and panel discussions held across Canada. You are not alone in a default - Third party interests in commercial leases – this Sotos LLP paper explores a landlord’s options and remedies on default by a commercial tenant and the considerations to be given to third parties such as franchisees, the CRA, and bankruptcy trustees. Legal Resurrection: Tax Appeals and Dissolved Corporations – this post from The Court discusses 1455257 Ontario Inc. v Canada, 2016 FCA 100, a Federal Court of Appeal decision analysing the proper process for a dissolved corporation to challenge a civil action, in this case, a notice of assessment from the CRA for taxes still owed by the dissolved company. Strategies For Protecting Your Brand From Trademark Trolls In Canada – soon to be enacted changes to the Trade-marks Act may open the door to trademark trolls, according to the author of this IP Update article. The author outlines several defensive strategies that can be implemented to protect brand owners from this threat before the amendments come into force in 2018.

Barron Henley, a renowned legal technology expert and efficiency consultant, will be in Winnipeg to present two all day programs at the Law Society in June: Microsoft Word for the Legal Profession (June 14, 2016) and Legal Technology Academy (June 15, 2016). Learn what technology tools best suit your practice and master Word’s complex formatting and features in classes designed by and for lawyers. Special rates are offered for small firm and student registrants and fees include refreshments and materials (including a Word manual and pre-formatted templates for the Word course). Summer CPD Replays The CPD Replay schedule is now posted on the LSM website. If you missed attending one of these popular programs the first time around replays are a cost effective way to catch up on your CPD hours during the slower paced summer months. Find a program and date that works for you, with a wide variety of programming topics offered from July 18 to August 10, 2016. Don't see a time that fits your schedule? These DVDs are available for purchase and can be viewed at your own convenience.

Equity Crowdfunding Rules – Chris Besko, of the Manitoba Securities Commission, will discuss equity crowdfunding rules at this June 7, 2016 meeting of the Securities Law section. The meeting takes place from 12 noon to 1:30 pm at the offices of Fillmore Riley LLP. Update on the Manitoba Provincial Nominee Program – Fanny Levy, Director of the Manitoba Provincial Nominee Program, is the featured speaker at this Securities Law section program on June 8, 2016. It takes place from noon to 1:30 pm at the offices of Myers Weinberg LLP, in the Cargill Building, 8th Floor – 240 Graham Ave. Immigration, Employment Law, Human Rights and Tax – Life was better when things were less complicated – at the last CCCA section meeting of the year on June 22, 2016, Reis Pagtakhan will address the increasingly complex issues surrounding temporary foreign workers. The program will be held at Aikins Law, 30th floor, 360 Main Street, starting at noon.