PitbLAWg | Winnipeg Manitoba Canada

The Missing Link: Supreme Court of Canada Weighs in on Hyperlinking

Adam Herstein — Wed, 02 May 2012 20:58:09 +0000

The Supreme Court of Canada (SCC) has weighed in on a very contentious and important issue in Internet law, known as hyperlinking. A hyperlink is a word, phrase, or image that a computer user clicks on, taking the user to a new document altogether, or to a new section within the current document the user is then looking at.

In October, 2011, the SCC decided the case of Crookes v. Newton. Newton wrote an article about Crookes and posted that article on Newton’s website. The article contained links to another website, on which was posted material about Crookes. Crookes wanted Newton to remove the links, on the basis that Crookes felt the material linked to (and not Newton’s original article), was libelous.

The SCC unanimously ruled that linking to content considered defamatory or libelous, is NOT the same thing as directly publishing such content. The SCC said that ruling otherwise could have a ‘devastating’ effect on the Internet in our country. So, linking is not publishing. This is a significant finding, because without publishing, there can be no defamation.

The Internet is built on linking web sites to one another. For example, we see it every day in tweets, blog posts, articles on online newspapers and in all sorts of other places on the Internet. Many of us likely don’t give much thought to linking to one web site or another when we post on the Internet. It simply is part of the Internet culture that is continually evolving.

So, the SCC appears to be understanding the Internet. For now, the bloggers and tweeters among us can continue to do what they do best, without fear that a link may put them out of business.

BC ruling may affect Corporate Tax Planning

Seth Nerman — Tue, 01 May 2012 20:56:24 +0000

A recent Court of Appeal decision from British Columbia may have devastating consequences for businesses engaged in corporate tax planning and asset protection.

In Abakhan & Associates Inc. v. Braydon Investments Ltd. (“Braydon“), the Court of Appeal held that any transfer of assets made with a view to protecting such assets from current and/or future creditors might be in breach of the The Fraudulent Conveyances Act (British Columbia) (The Act), despite a lack of a dishonest intent.

In Braydon, a holding company had been used by its principal for the purpose of real estate investment. It had recently sold one of its properties for a substantial sum, resulting in significant capital gains tax.

The principal was introduced to an investment opportunity and persuaded to form a corporate partnership to operate a motor vehicle and leasing dealership. The investment opportunity was not without risk and as a result, the principal did not want to jeopardize the assets currently held by the holding company. That being said, the principal saw an opportunity to carry back losses which might occur thereafter in the leasing company against previous years income of the holding company.

In order to accomplish both goals, a new company was incorporated and the assets of the holding company were rolled into the new company using a complex series of tax deferred rollovers and cross redemptions of shares.

The holding company, now bereft of its assets, approached creditors to obtain financing in order to start up the leasing dealership. The financial statements of the holding company would not have shown any of the assets as they had been rolled out to the new company.

The leasing dealership was a financial disaster and the holding company experienced significant losses. Within a short period of time, the holding company declared bankruptcy and the trustee in bankruptcy went after the assets that had been transferred to the new company.

The Court of Appeal held that a fraudulent conveyance had taken place because one of the purposes of the rollover transaction (there was also the tax purpose) was to defeat the future creditors of the leasing dealership. The Court of Appeal stated that a fraudulent intent was not a pre-requisite to a breach under the Act.

The decision was appealed to the Supreme Court of Canada, but the application was dismissed in June 2010.

It has yet to be seen how Manitoba courts will treat the Braydon case, but rest assured, it already has had a significant impact for corporate and tax practitioners and their clients. If you would like to read more about the Braydon decision, including a summary of the evidence used at trial, please see this article by Robert A. Millar, published in the Spring/Summer 2012 issue of “Rebuilding Success.”

Spousal Support in Canada

Natalie Paul — Mon, 16 Apr 2012 20:52:35 +0000

In Canadian Family Law, spousal support is available for married spouses and common law partners.

The two main purposes of spousal support are: the need for one party to receive support; and compensation for sacrifices in earning power made during the relationship.

There are some difficulties when determining the quantum of spousal support. Specifically, it is important to note that spousal support is not legislated by the government, as compared to child support which is legislated. Nonetheless, there are Spousal Support Advisory Guidelines that are in place and are used as a tool to assist parties, courts or lawyers in determining the quantum and duration of support. As outlined in its name, these guidelines are advisory in nature and are therefore not legally binding. Once the quantum of spousal support has been determined, the type of payment structure and duration will need to be established. These include:

- periodic payments;

- lump sum payments; and

- duration may be definite or indefinite.

It is important to note that there may be tax implications when spousal support is involved. Specifically, spousal support may be tax deductible for the payor and included as income for the recipient. The tax implications are only applicable when the payments are made periodically and based on a written agreement or a court order.

I discuss spousal support in more details in my Whiteboard Session . If you would like more information, or would like to discuss this matter further, please feel free to contact me at 204.956.3506.

Federal Government makes changes to Immigration funding in Manitoba

Paul Hesse — Fri, 13 Apr 2012 20:49:46 +0000

The federal government is taking big steps to take back control over immigration in Manitoba. Newcomers already in Manitoba and future immigrants will be affected.

The first big change is to settlement services. The federal government has been transferring approximately $36 million each year to Manitoba to pay for settlement services for immigrants, such as language training, skills upgrades and helping immigrants integrate into the workforce. Now the federal govenment has given notice that those contracts will not be renewed in one year’s time. Funding for settlement services will now be controlled directly at the federal, rather than provincial level. Manitoba itself only provides $1.25 million of provincial money towards these services. It is too early to know exactly how people will be affected. Will some agencies close? Will Welcome Place or the Immigrant Centre change the programs they offer?

Currently there are approximately 200 programs funded by the province with this federal funding. Undoubtedly some of those programs will now be cut or modified. Service providers are shocked since they felt there weren’t any warning signs of such a dramatic change. Those of us who have been watching federal immigration changes are less surprised.

The second big change is to the Provincial Nominee program itself. This is the program that brought in around 16,000 immigrants to Manitoba last year. The vast majority of Manitoba immigrants obtain permanent residence (and eventually citizenship, in many cases) thanks to the program. The program is the result of a 1998 agreement between the province and the previous federal government to give more control to Manitoba so it could choose the type of immigrants it wanted. Since 1998, the program has been expanded. It is one of the major reasons why Manitoba has seen population growth and an increased demand for housing.

Now, the federal government has capped the number of immigrants who can arrive in Manitoba each year under the program. As of July 1st, 2012 more applicants will now be required to undergo standardized language testing. This is consistent with the trend under federal immigration programs (such as the Federal Skilled Worker program). However, it is frustrating for immigrants from English-speaking countries like the United States and the United Kingdom. Under federal immigration rules, a graduate of Harvard University still needs to wait a few months to get an appointment to write an exam to prove that she knows English. The federal government is now imposing such a system on certain categories of Manitoba Provincial Nominee program applicants, regardless of their country of citizenship.

While these changes affect other provinces as well, Manitoba is arguably most affected. Manitoba brings in more immigrants through the Provincial Nominee program than any other province. It also brings in a larger percentage of its immigrants through the program than other provinces such as British Columbia, Alberta or Ontario.

Those of us who watch immigration closely are not surprised by these changes. There have already been other dramatic federal immigration changes that weren’t much noticed in Manitoba. In the recent federal budget, the government decided to retroactively cancel Federal Skilled Worker applications filed before February 27, 2008 that still hadn’t received a selection criteria decision. The government will refund $130 million in application fees paid by those applicants. This change will affect around 280,000 people, including spouses and children of those applicants. The news went unnoticed because those affected generally live outside of Canada. With the recent events in Manitoba, those already in Canada are starting to notice.

Recently, Canadian immigration rules have been changing every month and sometimes faster. More changes will surely be coming. We will continue to provide updates on these changes as they are announced.

Preventative Maintenance and Documentary Disclosure

Candace Everard Grammond — Fri, 30 Mar 2012 20:45:05 +0000

When an individual or any organization becomes involved in a dispute or a potential dispute, it is important to remember that all relevant evidence needs to be preserved. Under Court rules, both sides have an obligation to disclose all relevant documents to the other. “Documents” are defined very broadly and include any information recorded or stored by means of any device.

As such, when a potential dispute presents itself, you should take all reasonable steps to preserve all relevant documents in your possession, control or power. This includes documents held by a third party service provider such as financial institutions and accountants. Electronically stored data is often overlooked and should not be as this data is an important and often irreplaceable source of evidence.

Once the relevant documents are identified, they should be preserved intact and unmodified, and should remain accessible. The sooner that you gather all of your documents together the better; your litigation lawyer will thank you as it will make their task easier as the litigation progresses! For more information on this topic please refer to my recent Whiteboard Session video.

POTENTIAL PROBLEMS FOR LENDERS USING “ALL OBLIGATIONS MORTGAGES”

Ned Brown — Tue, 27 Mar 2012 20:42:02 +0000

An “All Obligations” mortgage is one which, by its terms, secures all of the mortgagor’s present and future obligations of all types, from time to time owed to the mortgagee, limited at any one time to the maximum principal or face amount stated in the mortgage. This type of mortgage has become increasingly popular with both lenders and borrowers because it facilitates a borrower using the equity in his/her home to obtain a lower (than otherwise would be the case) interest rate. However, the writer has ascertained some potential problems – mainly for lenders – where this type of mortgage is utilized. For more information, please refer to my complete paper on the subject.

You Inherit, They Tax

Caroline Kiva — Mon, 26 Mar 2012 20:33:57 +0000

If you are contemplating your estate plan and concerned with issues that will affect the legacy you leave to your loved ones, you should read the Winnipeg Free Press article by Joel Schlesinger in the Money Matters column on March 24th, 2012 in which I was interviewed. To view a copy of the article, click here.

Internet cached webpages: What are they and how can you deal with them?

Brian Bowman — Mon, 19 Mar 2012 20:30:56 +0000

During the course of my practice I’m often asked to provide social media law advice, typically to organizations or individuals who want defamatory, proprietary or privacy invasive content removed from the Internet. Once content has been successfully removed from a website I often discuss with clients issues related to Internet cached webpages. So I thought it would be helpful to provide some general information on what Internet cached webpages are and how you can deal with them in situations where you don’t want to have certain content available online.

What are Internet cached webpages?

When search engines such as Google, Yahoo, and Bing crawl a website, they take a snapshot of what the site looks like at that time. This “snapshot” is known as a cached webpage and it’s stored by the search engine. The cached webpage is what the search engine then uses to determine whether the site matches a user’s specific query.

When a user clicks on the cached webpage, they will be taken to the version of the webpage that was online when the site was last crawled and not the current version. The cached webpage can be accessed when the current version of the site is unavailable due to Internet congestion, a slow website, or the webpage has recently been removed.

How can you deal with Internet cached webpages?

It is very difficult to remove a cached webpage from a search engine if you’re not the webmaster of the website. If you’re not the webmaster and you’d like a cached page removed from Google, Yahoo or Bing, you have three options:

You can contact the site administrator and ask them to take the steps necessary to have the cached webpage removed from the search engine in question. Google typically responds to such requests from webmasters within 2-3 hours and Yahoo typically responds in 5 hours;
You can seek a court order or other legal document to have certain content removed from the website/cached webpage; or
You can just wait until the search engine crawls the site again and updates its cached webpages. This option can take the longest amount of time to see results since it might be 1-2 months before the site is crawled again.

Google offers an additional tool to have a cached webpage removed by a party who does not own the webpage in question. My understanding is that this process will only work for HTML pages and will not work for PDFs or .doc files):

The webpage must be have been updated since the cached version;
Go to (http://support.google.com/webmasters/bin/answer.py?hl=en&answer=1663691) and click on Google Public URL Removal Tool;
Sign in to Google;
Then it will prompt you for the URL you’d like removed;
Click Continue;
Type a word that appears on the out-of-date cached version of the page but not anywhere on the live version. Its better to use single words and not phrases; and
Click Remove cache.

Given the technical nature of this topic, and fact that I’m not a techie, I’d recommend that you work with a technology professional and not rely on this post. That being said I hope this helps and at least provides you with some general information to get you started.

Brian Bowman Interview with Maritime Morning — Weekend Edition News 95.7 // News 88.9 // News 91.9

Brian Bowman — Tue, 06 Mar 2012 20:23:10 +0000

Brian Bowman recently had an interview with Erin Trassord of Maritime Morning, a local radio station in Halifax, regarding Google’s new Privacy Policy. To listen, click here

Workplace Harassment Liability for Employers

David Newman — Fri, 03 Feb 2012 15:15:31 +0000

Employers in Manitoba may not be aware of recent amendments to regulations to the Workplace Safety and Health Act (the “Act”) which place a number of strict duties on employers relating to the creation, maintenance and enforcement of certain workplace policies. The protection of workers in their employment remains one of the key purposes of the Act. This protection extends not only to the physical safety of employees, but, just as importantly, to their mental health.

Recent trends across Canada indicate strongly that employers are being held increasingly more accountable for taking the required measures to ensure workers are not being unnecessarily exposed to factors which may have an adverse effect on their mental health. In a world where there are new forms of liability around every corner, ensuring that organizational culture is conducive to promoting employee mental health is of paramount importance to employers.

Among the mental health issues that occur are stress, anxiety and depression, all of which can arise as the result of an employer’s failure to prevent occurrences of workplace harassment. Employers are expected to take proactive steps to prevent such occurrences, by actively ensuring the following steps are taken in their workplaces:

Developing and implementing harassment prevention policies;
Routinely updating existing policies;
Educating and training workers in the adherence to policies;
Providing new employees with policies;
Publicly posting policies in the workplace; and
Ensuring compliance by investigating and following up complaints promptly and thoroughly.

The Act and regulations set the minimum standards and define prohibited harassment. Employers who breach the Act or the regulations may be prosecuted and found guilty of an offence. Penalties include fines of up $250.000.00, with even heavier penalties for repeat offences, and imprisonment up to six months, and prohibition from working in a supervising capacity for six months. Officers and directors of the employing Corporation who directed, authorized, assented to or acquiesced in, or participated in the offence are likewise liable to such penalties. Employers are therefore strongly encouraged to look at their existing harassment policies, and to determine whether their current practices are compliant with the law. Looking ahead to anticipate and take steps to prevent potential liability issues is highly important. Employers further need to ensure that new policies and practices are properly implemented and routinely updated as new changes in the law continue to unfold.

For further information about how to comply with the new mental health standards, please contact David G. Newman, Q.C. at newman@pitblado.com or phone 956-3521.