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News and discussion on implementing risk management

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Finance and Accounting

Uncertain ground: Owners may be liable for unforeseeable environmental effects

In Huang v. Fraser Hillary’s Limited, 2018 ONCA 527, the Ontario Court of Appeal recently ruled that foreseeability of harm is not an element of the tort of nuisance in the context of historical environmental contamination of a neighbouring property by a dry-cleaning business.

 

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Contractual terms by convention: When parties fail to explicitly set contractual terms

One of the frequent issues encountered in contractual litigation is parties failing to negotiate and set to writing the contractual obligations that exist between them. So long as the parties are getting along and no questions are raised about anyone’s obligations, the lack of written contractual terms may not be an issue and convention will general dictate the parties’ interactions.

 

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Uniting risk management with strategic planning

Who can argue that the consideration of what might happen (what some refer to as risk) should be part of the strategic planning process? Objectives and strategies should be set only after thinking carefully about where you are, what is happening around you, and what may happen in the future.

 

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The nascent CRISPR-Cas9 patent landscape in Canada

CRISPR-Cas9 is a technology with the potential for an unimaginable impact on society. CRISPR (Clustered Regularly Interspaced Short Palindromic Repeats) allows scientists to edit genomes in living organisms at the cellular level by guiding a “scissor-like” protein to targeted sections of DNA within a cell, and then prompting it to alter or “edit” the DNA in some way.

 

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Robust information about purchasers/assignees may be required before contracts will be assigned under the CCAA

In Dundee Oil and Gas Limited (Re), 2018 ONSC 3678, Justice Dunphy provided some important guidance on information that should be provided to the court in support of a motion for an order assigning contracts pursuant to section 11.3 of the Companies’ Creditors Arrangement Act, RSC 1985, c. C-36.

 

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Contracts of purchase and sale: Removing subjects

Most people familiar with the purchase and sale of real property are familiar with subject to clauses, the full legal significance of such clauses can be a source of confusion. The misunderstanding of the legal meaning of subject to clauses was at the heart of the litigation in Dhaliwal v Binepal.

 

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Emerging risks: who is watching?

Who should be alert and watching for emerging risks: things that might happen (a better expression than the ‘R’ word, ‘risk’, because of its negative impression) that might affect the achievement of enterprise objectives?

 

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Canada moves forward with a remediation agreement regime

It is likely that many organizations will choose to enter into a remediation agreement with the hope of obtaining a stay of the charges and avoiding the risk of a lengthy prosecution and subsequent criminal conviction.

 

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TCC Clarifies child care expenses in Kwan

Kids are expensive. There’s no doubt about that. The Canadian government provides a small subsidy by allowing a limited amount of child care expenses to be deducted from income taxes.

 

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Ontario court declines to enjoin termination of franchise agreement

In the recent decision Azmoon Trading Inc. v. Caffe Demetre Franchising Corp., 2018 ONSC 2868 (“Azmoon”), the Ontario Superior Court of Justice dismissed a Franchisee’s motion for injunctive relief prohibiting the Franchisor from terminating the franchise agreement (the “Agreement”).

 

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Rules of the game (Part 1): Copyright protection of video games in Canada

The Canadian Copyright Act does not identify video games as a specific type of work and the courts have not directly stated what type of “work” video games fall under, but the courts have recognized that video games are protected under copyright.

 

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Good decisions take time and more

Do risk, governance, and audit practitioners consider the problem of decisions where insufficient time was taken to obtain the necessary information, consult with all affected parties, and THINK about the options?

 

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Vicarious liability for the intentional torts of workers

It is not always clear when an organization will be liable for the intentional wrongs committed by its representatives. Recent case decisions underscore the difficulty in determining in what circumstances an organization will be held vicariously liable for the intentional wrongs of its workers as well as the challenges in trying to gauge whether a court will find that there was sufficient connection between such intentional wrong and the worker’s duties.

 

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Why are SOX compliance costs increasing so much?

From a recent survey by Protiviti, the information on how many organizations had to issue a cyber-security disclosure is interesting. Apparently, this generally resulted in an increase on SOX compliance hours – although the reason for a significant increase is not clear.

 

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What happens to your franchise agreement in the event of a change in the law?

Because franchise agreements are often signed for long periods of time (generally two to ten years), it is very important for any franchisor, and for anyone drafting a franchise agreement, to make sure that the risk (which is very real and constant) of laws or regulations being changed or of new laws or regulations, or new case law, is covered by appropriate provisions that properly tailored to the network’s industry.

 

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