Osler Updates

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U.S. Supreme Court Upholds Fraud-on-the-Market Doctrine

In its highly anticipated decision in Halliburton Co. v. Erica P. John Fund, Inc. released this week, the U.S. Supreme Court confirmed that plaintiffs in securities class actions could continue to rely on the “fraud-on-the-market” presumption. Where available, the presumption eliminates the need for plaintiffs to demonstrate reliance on an alleged misrepresentation on an individual basis.

June 25, 2014

Appellate Court Recognizes and Protects Litigation Privilege in a Regulatory Investigation

An appellate court recently concluded that litigation privilege may be appropriately claimed by a target of a regulatory investigation. The Court in TransAlta Corporation v Market Surveillance Administrator reaffirmed the importance and protection afforded to litigation privilege claims, recognizing there is the need for both legal advice and the protection of an associated zone of privacy when a party is facing an investigation that could result in a prosecution with serious consequences. 

June 23, 2014

Take Note: Canada’s Notice and Notice Regime Is Coming into Force

In a statement dated June 17, 2014, the Canadian government announced the coming into force of Canada’s new Notice and Notice regime, included as part of The Copyright Modernization Act (which provides for the most recent amendments to Canada’s Copyright Act). The announcement provides that the Notice and Notice regime (i.e.,new sections 41.25, 41.26 and 41.27(3) will come into force six months following publication of the Order in Council (the precise date of which is yet to be determined). 

June 19, 2014

Federal Court Revokes Darlington Nuclear Preparation Licence Based on “Gaps” in Environmental Assessment

In a rare (and over 200-page) decision, the Federal Court of Canada revoked the Licence given to Ontario Power Generation to construct new nuclear generation units at the existing Darlington nuclear facility, and ordered that the environmental assessment under the Canadian Environmental Assessment Act be returned to the appropriate panel for further consideration including addressing certain “gaps” in the analysis undertaken in the EA. 

June 18, 2014

Duty to Consult where Government Action Impacts a First Nation’s Economic Interests

In a recent decision concerning a Ministerial decision to allocate timber undercut on the west coast of Vancouver Island, the Court recognized that a duty to consult extends to a situation where the government decision may have a potential adverse effect on a First Nation’s economic interests, as opposed to an Aboriginal right. 

June 16, 2014

Plan Nord: Québec Liberal Government Relaunches the Plan Nord

On June 4, 2014, the first budget (Budget) of the new Liberal government, in power since April 7, 2014, was tabled in the Québec National Assembly. The Budget provides for certain measures to relaunch the Plan Nord, as announced by the Liberals during the latest election campaign. 

June 12, 2014

Federal Government Initiatives Support Engagement with First Nations

Following eight months of consultations with First Nations, provincial governments and industry, the Federal Government announced two new measures to strengthen engagement and involvement with First Nations in energy projects, infrastructure and natural resources on Canada’s west coast. 

June 11, 2014

Generic Drug Company Licensees Avoid Patented Medicines Price Oversight

In two nearly identical decisions the Federal Court of Canada held that generic pharmaceutical patent licensees are not subject to the jurisdiction of the Patented Medicines Prices Review Board, including its powers to regulate drug prices.  These decisions, which may be appealed to the Federal Court of Appeal, mark a retreat from the courts’ expansive views about the jurisdiction of the PMPRB.

June 10, 2014

Courts Uphold Use of Fairness Opinions at Hearings to Approve Plans of Arrangement

In two recent decisions, separate judges from the Ontario Superior Court have questioned the correctness of a prior decision declaring a fairness opinion inadmissible at a hearing to approve a plan of arrangement. These decisions revert to the Court’s traditional practice of considering “the presence of a fairness opinion from a reputable expert” as among the indicia of fairness when considering whether a proposed plan of arrangement is fair and reasonable. 

June 9, 2014

U.S. Appellate Court Overturns Decision Rejecting SEC’s No-Contest Settlement

The United States Court of Appeals for the Second Circuit held on June 4, 2014, that the U.S. Southern District Court of New York abused its discretion when it refused to approve a no-contest settlement agreement between the SEC and Citigroup Global Markets Inc. While this decision is not binding in Ontario, the Citigroup saga had been closely watched by securities market participants and regulators on both sides of the border. 

June 6, 2014