| The Law Society of Manitoba Professional Education and Competence |
 |
| eLaw Business Law Update | March 2018 |
| In This Issue |
| “Something More Than
Nothing” Required to Discharge Duty: SCC BLA Does Not Apply to Contracts or Work Related to Hydro Project: MBQB Oppression Remedy Not Suited to Addressing Family Dispute: MBQB Legislative Update Federal Budget 2018 Consultation on Modernizing The Builders’ Liens Act: MLRC Consultation Paper on Reviewing AML and ATF Regimes: Department of Finance Recommended Reading Spring CPD: LSM MBA Programs |
“Something More Than Nothing” Required to Discharge Duty: SCC
| In
Valard Construction Ltd. v. Bird Construction Co.,
2018 SCC 8, a decision affecting those working in the construction
industry, a majority of the Supreme Court found that
trustees of trusts contained in labour and material payment bonds owe a
duty to disclose the existence of the bond to potential beneficiaries
of the trust. According to the court, In general, wherever a
beneficiary would be unreasonably disadvantaged not to be informed of a
trust’s existence, the trustee’s fiduciary duty includes an obligation
to disclose the existence of the trust. In the circumstances of
this appeal, where the evidence was that labour and material payment
bonds were uncommon in the pertinent sector (private oilsands
construction), and where the trustee’s failure to disclose the
existence of the trust prevented the beneficiary from making a claim
within the prescribed notice period, that duty was breached. (para. 2)
The court found that Bird, the general contractor and trustee under a labour and material payment bond, committed a breach of trust by failing to notify Valard, a subcontractor, of the existence of the bond during the 120-day notice period. Bird was ordered to compensate Valard for its losses. These articles discuss the implications of the decision for the industry: Part 2: Unpaid Subcontractors Beware – Bennett Jones Do Something: General Contractor Liable for Failure to Disclose Existence of Labour & Materials Bond – CanLii Connects Do Something! Labour and Material Payment Bonds should be disclosed to claimants – Field Law |
BLA Does Not Apply to Contracts or Work Related to Hydro Project: MBQB
| Section 3(3) of The Builders’ Liens Act
exempts Manitoba Hydro from the provisions of the Act with respect to
contracts entered into for construction of the Keewatinohk Converter
Station component of Bipole III, according to the court in American Piledriving Equipment, Inc. v.
Manitoba Hydro,
2018 MBQB 27. The court rejected the argument of the plaintiff (who was
owed more than US$3 million by a bankrupt project sub-contractor) that
the intent of the legislature in enacting s.3(3) was to exclude Hydro
from the provisions of the BLA
only if statutory protections for project sub-contractors similar to
those in the BLA
existed elsewhere. In the court’s view, Hansard evidence as to the
legislative intent in enacting the Hydro exemption did not establish a
sufficiently reliable foundation to conclude that s.3(3) has no
application. |
Oppression Remedy Not
Suited to Addressing Family Dispute: MBQB
|
|
Legislative Update
|
Bill C-25, An Act to amend the Canada Business Corporations Act, the Canada Cooperatives Act, the Canada Not-for-profit Corporations Act, and the Competition Act, is in third reading before the Senate. It proposes significant changes to corporate governance, shareholder participation, and gender diversity for issuers incorporated under the CBCA. For further details see the legislative summary and these articles and blog posts from Canadian Lawyer, Blakes, BLG, Dentons, Norton Rose Fulbright, and Osler. Proposed regulations to Bill C-25, fleshing out the details of the changes to corporate law, were published December 14, 2016. They are discussed in this article from the CBA: CBA welcomes diversity measures in Bill C-25. Bill C-49, An Act to amend the Canada Transportation Act and other Acts respecting transportation and to make related and consequential amendments to other Acts, is progressing through the Senate and was referred to the Standing Senate Committee on Transport and Communications on December 8, 2017. It aims to modernize transportation laws in Canada, improving freight rail safety and efficiency; liberalizing international ownership restrictions for Canadian air carriers; and establishing new air passenger rights. For further information see the legislative summary, departmental information, and Transportation 2030 strategic plan. Bill C-69, the Impact Assessment Act, was introduced February 8, 2018 and is now in second reading before the House of Commons. It proposes significant changes to the existing environmental assessment process in Canada, as detailed in the departmental information and background documents and in the Torys article Government Of Canada Unveils Its Proposed Impact Assessment Act. Provincial The Local Vehicles for Hire Act, C.C.S.M. c. L195, came into force on February 28, 2018. It repeals The Taxicab Act and allows municipalities to make by-laws regulating the entire vehicle-for-hire industry. Further details can be found in the explanatory note to the bill and in this government news release concerning the approved regulatory changes. Bill 3, The Canadian Free Trade Agreement Implementation Act (Labour Mobility Act and Regulated Health Professions Act Amended), is in first reading. It makes administrative amendments to The Labour Mobility Act and The Regulated Health Professions Act to reflect that federal and provincial governments have agreed to a new domestic trade agreement, the Canadian Free Trade Agreement. Bill 7, The Sustainable Watersheds Act (Various Acts Amended), amends four acts to improve water management in Manitoba. For further information see the explanatory note to the bill. Bill 11, The Safe and Responsible Retailing of Cannabis Act (Liquor and Gaming Control Act and Manitoba Liquor and Lotteries Corporation Act Amended), amends The Liquor and Gaming Control Act and The Manitoba Liquor and Lotteries Corporation Act to authorize and regulate the retail sale of cannabis in Manitoba when such sales are permitted by the federal government. For further details see the explanatory note. |
Federal Budget 2018
| The
federal government tabled its budget on February 27, 2018 and legal
commentators were quick to respond, particularly with analysis of the
tax provisions. For a sampling see: Investment limited partnerships: Federal Budget 2018 - Osler 2018 Miller Thomson Federal Budget Review 2018 Federal Budget: Tax Highlights - Davies 2018 Canadian Federal Budget Commentary – Tax Initiatives – McCarthy Tétrault LLP Federal Budget 2018 — A Continued Focus On Fairness And The Middle Class - BLG Canada Strengthens Transnational Business and Human Rights Oversight - Bennett Jones LLP |
Consultation on
Modernizing The Builders’ Liens Act:
MLRC
|
|
Consultation Paper on
Reviewing AML and ATF Regimes: Department of Finance
|
|
Recommended Reading
|
In The Home Stretch? Get Ready For Implementation Of Amendments To The Trademarks Act – recent revisions to the Trademark Regulations set February 1, 2019 as the planed coming into force date for amendments to the Canadian Trademarks Act. This B&P article summarizes the amendments and suggests strategies to deal with them. Patent Term Adjustments Come to Canada – this Slaw post discusses recent amendments to the Patent Act and regulations providing for Certificates of Supplemental Protection, which can effectively extend the term of some patents beyond twenty years. “Should I Stay or Should I Go?”: Whether to Form a Limited Partnership in Manitoba rather than Ontario – this McCarthy Tétrault LLP article outlines the benefits and the drawbacks of forming a limited partnership in Manitoba to operate as an extra-provincial limited partnership in Ontario. Feds 'retreat' on passive investment taxation changes for Canadian-controlled private corporations – this Canadian Lawyer article discusses how the federal budget proposes new measures to limit deferral advantages from holding passive assets in a CCPC. 5 Business Cases To Watch In The Supreme Court's Winter Session – the Supreme Court will consider s.14.06 of the Bankruptcy and Insolvency Act and reconsider the law of constructive trust and unjust enrichment this session, according to the authors of this Bennett Jones post. Cybersecurity: Five Guiding Principles For Boards (Miller Thomson) and Cybersecurity Update: From Transaction Start To Finish (Norton Rose Fulbright) – these are just a few examples of the many recent articles on cybersecurity threats and how they are affecting due diligence and regulatory processes in small and large businesses. Canada Introduces New Corporate Social Responsibility Measures – this Gowlings LLP article discusses recent initiatives by the federal government to control the way Canadian businesses operate abroad: an independent Canadian Ombudsperson for Responsible Enterprise and a multi-stakeholder Advisory Body. |
Spring CPD: LSM
|
CLIA Cyber Liability Insurance Group Policy - LSM staff will discuss how to protect yourself from cybercrime risks and review the cyber liability coverage under CLIA’s policy at this May 17, 2018 webinar. |
MBA Programs
|
Subdivision of land outside the City of Winnipeg - representatives from Manitoba Community and Regional Planning Services will speak on aspects of the subdivision process under The Planning Act (including both standard and minor subdivision processes, updated application requirements, and how to assist clients in fulfilling subdivision conditions) at this joint meeting on March 22, 2018. The meeting will be held from 5:00-6:30 pm at MLT Aikins LLP. The General Data Protection Regulation (GDPR) – find out how Europe's new privacy law, which will apply to anyone who holds EU resident data, will affect you and your clients at this lunch program on April 26, 2018. The program will be held at the Law Society classroom, 219 Kennedy St. |
ISSN 1916-3916