In companion cases Canada (Attorney General) v. Fairmont Hotels Inc., 2016 SCC 56 and Jean Coutu Group (PJC) Inc. v. Canada (Attorney General), 2016 SCC 55, a 7-2 majority of the Supreme Court confined the use of the rectification remedy to situations where the parties had a prior, ascertainable agreement that was not properly recorded in the written instrument governing their relationship. In both cases, the parties asked the court to exercise its equitable jurisdiction to rectify a written legal instrument which had triggered unforeseen tax consequences despite their intent that it be tax neutral. “Rectification is limited to cases where the agreement between the parties was not correctly recorded in the instrument that became the final expression of their agreement,” according to the majority in Fairmont and, while “a court may rectify an instrument which inaccurately records a party’s agreement respecting what was to be done, it may not change the agreement in order to salvage what a party hoped to achieve. Moreover, these rules confining the availability of rectification are generally applicable, including where…the unanticipated effect takes the form of a tax liability.” (para. 3) These articles discuss the decisions:

Supreme Court of Canada clarifies the remedy of rectification in Canadian tax cases - Osler
Rectification Requires Prior Agreement to Succeed: Intention Alone Insufficient – Cassels Brock

In Corydon Village Mall Ltd v TEL Management Inc, 2017 MBCA 8, an appeal concerning whether a landlord breached its covenant not to unreasonably withhold consent for a tenant’s request to change the permitted use in its leased premises, the Court of Appeal upheld the trial judge’s decision that a prohibited use is an exception to the obligation of the landlord not to unreasonably withhold consent to a change of use request. A significant issue in the appeal was whether the trial judge’s interpretation of the lease agreement was to be reviewed on the deferential standard of palpable and overriding error, in accordance with Sattva, or the standard of correctness, pursuant to Ledcor. Although the agreed statement of facts referred to the lease as a standard form contract, the Court of Appeal found that some of its terms had been negotiated and that it was not a “take it or leave it” contract as contemplated by Ledcor. The court found no error in the trial judge’s decision when reviewed on the more deferential Sattva standard.

“It is “very much an open question” whether a claim based on equitable fraud can only arise in circumstances where a special relationship has existed,” according to the Court of Appeal in Vitacea Company Ltd et al v The Winning Combination Inc et al, 2016 MBCA 126, which upheld the motion judge’s decision denying the defendants’ application to strike a portion of the amended statement of claim as failing to disclose a reasonable cause of action. The defendants argued that no cause of action lies in equitable fraud where the relationship between the parties is one of equal bargaining power governed by contractual terms, but in the court’s view, the current jurisprudence does not lead to that inexorable conclusion.

In Eastman Bio-Fuels Ltd et al v Small, 2016 MBCA 112, the Court of Appeal upheld the motion judge’s dismissal of the defendant’s summary judgment motion, finding that a trial was warranted given the conflicting evidence and issues at play in the breach of fiduciary duty/insider information claim. The plaintiff argued that the defendant, a former shareholder and director of the plaintiff company, relied on insider information to purchase their mortgage which was in arrears. The injunction preventing the defendant from proceeding with mortgage sale proceedings was also upheld.

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Provincial  

The Canadian Securities Administrators published Multilateral Staff Notice 51-347 Disclosure of cyber security risks and incidents on January 19, 2017. It is a follow-up to CSA Staff Notice 11-332 Cyber Security and examines the disclosure of some of the larger issuers to analyze what is being disclosed with respect to cyber security risk and cyber attacks. The review findings are summarized in this Business Class post.

The recently released Guidelines on the National Security Review of Investments provide an overview for businesses and investors looking to invest in Canada of the procedures that will be followed in administering the national security review process under the Investment Canada Act and regulations. In addition, guideline 6 provides a list of factors that the government may take into account when reviewing a transaction for national security. The blog post, Worth The Wait? National Security Guidelines Finally Published Under The Investment Canada Act, summarizes the key points.

Corporate Veil Preserved: Court Dismisses Action Against Canadian Subsidiary in Chevron Case – this Blakes post discusses the recent Ontario Superior Court decision in Yaiguaje v Chevron Corporation, 2017 ONSC 135, in which the court dismissed the plaintiffs' action to  execute against Chevron Canada’s assets to satisfy a foreign court judgment. According to this Law Times article, the plaintiffs plan to appeal.

Cybersecurity Risk Management - A Practical Guide for Businesses (McCarthy Tetrault) – this comprehensive guide outlines a framework and response plan for cybersecurity preparedness and shows how to execute it.

Several firms issued year end reviews of business law developments in January, including:

Legal Year in Review (Osler); Top 10 Business Decisions of 2016 (Lexpert); CASL — Year In Review (BLG); Year In Review: Legislation And Guidance For Financial Institutions In 2016 (Blakes); and North American M&A Decline In 2016 (Norton Rose Fulbright).

Also common were predictions for 2017, including:

Financial Services Regulatory: 7 Developments To Watch In 2017 (Norton Rose Fulbright); The Year Ahead: Ten Top Appeals to Watch in 2017 (Canadian Appeals Monitor); 2017 Canadian M&A Trends (Blakes); and 6 Business Cases to Follow in the Supreme Court's Winter Term (Bennett Jones).

Files Gone Wild: Top Ten Pitfalls to Avoid – Law Society Professional Liability Insurance claim staff recount terrible tales of actual insurance claims against real lawyers and offer tips on how to avoid such claims at this March 1, 2017 lunch program. Register to attend in person or by teleconference.

Electronic Legal Research for Luddites! - work in small groups with knowledgeable research assistants assigned to guide you through the electronic research process at this hands-on afternoon session at the Law Society classroom on March 23, 2017. Program materials and light refreshments are included in the registration fee.

Common Practice Issues: How the Code Can Help – Leah Kosokowsky, Director of Regulation at the Law Society of Manitoba, will moderate this fast paced webinar designed to demonstrate how the Code of Professional Conduct can be a practical problem solving resource in a variety of situations commonly faced by lawyers, such as withdrawal of retainer, obligations when changing firms, lawyer duties, and client capacity. The webinar will be shown from noon to 1:00 pm on April 6, 2017. Discounts up to 50% are offered to group registrants.

Sound Cybersecurity Practices For Your Law Firm – this very practical lunch program will further your awareness of cybersecurity risks, and provide you with valuable information about the technologies and cybersecurity practices you can adopt to reduce these risks. It takes place April 12, 2017 in the Law Society classroom. Teleconference registrants receive a group discount.

10th Annual Hot Topics In Real Estate - an “all star” panel will present at the 10th anniversary edition of this popular program on April 24(pm) or 25(am), 2017. We expect the program to sell out, so register early to secure your spot.

The 2017 CCCA National Conference “Agents of Change” will take place from April 2-4, 2017, in Toronto. The program aims to give in-house counsel the skills and success strategies they need to thrive in a changing environment and features keynotes, plenaries and workshops in a wide variety of areas. Register before March 4, 2017 to take advantage of early bird rates.

The CBA’s Competition Law spring conference, Sharpening Swords and Strengthening Shields: Competition Law in Contentious Times, will be held on May 25, 2017 in Toronto. Topics include recent developments in competition law, public consultations on immunity and leniency, the new mediation process at the Tribunal, and the prospect for a unified abuse of dominance provision with private access and damages. Register online or by completing a pdf registration form.

The CBA Tax Law for Lawyers conference will be held June 4-9, 2017 in Niagara-on-the-Lake. The program is aimed at those who do not specialise in tax law and includes six days of plenary and panel discussions and small group workshops with tax experts.  Early bird registration rates apply until April 1, 2017.