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News and discussion on implementing risk management

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Wade-ing into the limits on post-contractual conduct: BC Court of Appeal confirms post-contractual conduct may be considered only if contract contains ambiguity

Attempts by litigants to rely on post-contractual conduct are not uncommon in commercial litigation involving contractual interpretation. However, in the case of Wade v. Duck, an important reminder is offered that Canadian contract law places strict limits on the circumstances in which courts may have recourse to post-contractual conduct when interpreting a contract.

 

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Québec Superior Court reaffirms importance of franchisors keeping their invoices

The judgment in this case demonstrates that franchisors have to properly document the sales they make to their franchisees, by keeping the sales-related invoices, for example. Franchisors that follow that practice will not find themselves unable to prove their claims, thereby incurring serious financial losses.

 

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Collective agreement, not software, drives employee entitlements

Organizations must carefully and proactively determine user requirements and document them with great specificity when designing or evaluating software options to manage payroll and benefits within their companies.

 

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514-BILLETS gets billed by the CRTC for CASL violations

This case reminds organizations that CASL applies to any form of CEM, even text messages, used to promote products and services, and that the CRTC is actively monitoring and responding to complaints involving different types of CEMs.

 

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Commercial financing: Common security types

The purpose of this article is to summarize the features of some of the more common security types used in commercial financing transactions. In any particular transaction, the security used depends on the asset types.

 

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Ontario ban on door-to-door sales in effect as of March 1st

Door-to-door sales contracts have been among the top complaints received by the Ministry of Government and Consumer Services. Starting March 1, 2018, Ontario has banned unsolicited, door-to-door sales of certain household appliances to better protect consumers from aggressive and misleading contracting at home. This will bring about some changes for some companies business model and marketing strategies.

 

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Employee forfeits $115,000.00 in bonuses by resigning; active employment clause valid

A bonus policy may state that employees who are eligible for bonuses must also be actively employed to receive their bonus payments. That is, employers may institute an “active employment clause”. Courts will uphold valid active employment clauses, as demonstrated by Bois v. MD Physician Services Inc., 2017 ONCA 857 (CanLII). MD Physician Services Inc. […]

 

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Phishing losses exceed $224,000.00 after insurer denies coverage

In August 2010, someone called The Brick’s accounts payable (AP) department, pretending to be from Toshiba Canada. The caller said he was new to Toshiba and needed some payment details. The Brick employee faxed the payment information to the number which the caller provided.

 

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Ontario government revamps Construction Lien Act: What you need to know about prompt payment, mandatory adjudication, and more

On May 31, 2017, the Ontario government introduced Bill 142 [PDF] (the Bill) that, if passed, would significantly amend the Construction Lien Act to create a prompt payment regime, require the mandatory adjudication of certain construction disputes, and implement various additional amendments to modernize the Act.

 

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Oh those trademark scammers

Never hesitate to enquire as to whether a solicitation received by email or mail regarding your Intellectual Property is legitimate. It is important to read the fine print to a solicitation to determine whether or not it comes from the CIPO.

 

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Limitation periods and emails: Can an email signature extend a limitation period?

Potential debtors and defendants should proceed cautiously when exchanging emails with potential creditors and claimants knowing that such emails may extend potential limitation periods.

 

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Update on recoverable disbursements: The recoverability of after the event or ATE insurance premiums

Whether you win or lose, litigation can be an expensive endeavour. While some of those costs may ultimately be recovered from the other party in the course of the litigation, recent case law suggests that the premiums paid for After The Event (“ATE”) insurance (also known as adverse costs protection insurance) are unrecoverable.

 

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Federal Court of Appeal denies CRA routine access to tax accrual working papers

On March 30, 2017, the Federal Court of Appeal (FCA) released its decision in BP Canada Energy Company v. MNR (2017 FCA 61), dealing with whether the Minister of National Revenue (the Minister) could compel the taxpayer to disclose the uncertain tax positions reflected in its tax accrual working papers (TAWPs).

 

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Why get an injunction anywhere else? Federal Court grants interlocutory injunction based on damage to goodwill and practical impossibility of calculating lost sales

This case and its discussion of the difficulty associated with the apportionment of lost sales may provide a path to an interlocutory injunction in cases with similar difficulties.

 

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The future of securities regulation of distributed ledger technologies

The following discussion provides a general description of blockchain and distributed ledger technologies (DLT) and the current state of the regulatory landscape in Ontario. To date, the Ontario Securities Commission has not explicitly categorized a blockchain token or coin (which are further discussed below) as an investment contract or other type of security under section […]

 

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