On April 27, 2012, the Federal Government announced that it plans to amend to Investment Canada Act (ICA) to give the Minister of Industry more freedom to disclose whether an investment is likely to be found to be of net benefit to Canada (through Bill C-38, the Jobs, Growth and Long-term Prosperity Act, introduced on April 26th). In its news release, the Government said:
“Through the Jobs, Growth and Long-term Prosperity Act, the Harper Government has introduced amendments to the Investment Canada Act to provide the Minister of Industry with a greater ability to publicly communicate information on the review process, while preserving commercial confidences. The amendments would also promote investor compliance with undertakings by authorizing the Minister to accept security, when offered by an investor, for payment of any penalties ordered by a court for a contravention of the Investment Canada Act.
The amendments would allow the Minister to disclose publicly the fact that he has sent a preliminary notice to an investor that he is not satisfied that the investment is likely to be of net benefit to Canada. They would also allow the Minister to publicly explain his reasons for sending the notice as long as it would not cause harm to the Canadian business or the investor.
The Harper Government recognizes that strong confidentiality protection is critical to ensure that investors provide the information necessary to conduct reviews as well as to prevent the harm that could come from disclosure.”
The announcement is consistent with recent statements in the Federal Budget, tabled on March 29, 2102 (see: 2012 Budget Includes Changes to Canada’s Foreign Investment Regime), in which the Government said that it would be introducing “targeted improvements” to the administration of the Investment Canada Act “in the interests of greater transparency while preserving investor confidentiality.”
Bill C-38 would, if passed, broaden the exceptions to the existing privilege protections under the ICA to allow the Minister to publicly explain why an investor has been sent a notice under subsection 23(1) of the ICA (a preliminary notice that the Minister is not satisfied that an investment is likely to be of net benefit to Canada, the relevant substantive test for approving reviewable investments under the ICA).
The ICA contains a broad privilege provision, which provides, subject to a number of exceptions, that information received in relation to the enforcement and administration of the ICA is privileged. The ICA also allows investors to make representations and submit undertakings within 30 days of receipt of an interim notice from the Minister (or as agreed between the investor and the Minister).
On April 27, 2012, Industry Canada published a new guideline regarding the availability of mediation where the responsible Minister believes a non-Canadian has failed to comply with undertakings (i.e., commitments) in relation to an approved Investment Canada Act investment.
The new Investment Canada Act guideline provides that, where the responsible Minister believes that a non-Canadian investor has failed to fulfill undertakings, the following steps may be taken: (i) Investment Review Division officials may discuss potential resolutions for the non-implementation of undertakings, (ii) new undertakings may be negotiated, or (iii) the Minister may demand the non-complying investor to justify non-compliance with its undertakings (and commence proceedings where an investor fails to comply).
Interestingly, the new Investment Canada Act guideline states that: “[the] Minister recognizes that, in some instances, a resolution achieved through discussion may be preferable to potentially lengthy and costly legal proceedings.”
While it is not clear what precipitated the issuance of this new guideline, it may be that it was issued following lengthy and contentious proceedings relating to the alleged non-compliance of U.S. Steel with undertakings made in relation to its acquisition of Stelco in 2007.
For a copy of the guideline see:
For more about Canadian foreign investment rules see:
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CANADIAN CONTEST RULES/PRECEDENTS
Do you need contest rules/precedents
for a Canadian contest?
We offer many types of Canadian contest/sweepstakes law precedents and forms (i.e., Canadian contest/sweepstakes law precedents to run common types of contests in Canada). These include precedents for random draw contests (i.e., where winners are chosen by random draw), skill contests (e.g., essay, photo or other types of contests where entrants submit content that is judged to enter the contest or for additional entries), trip contests and more. Also available are individual Canadian contest/sweepstakes precedents, including short rules (“mini-rules”), long rules, winner releases and a Canadian contest law checklist. For more information or to order, see: Canadian Contest Law Forms/Precedents. If you would like to discuss legal advice in relation to your contest or other promotion, contact us: Contact.
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On April 26, 2012, the U.S. Federal Trade Commission (FTC) announced that it negotiated a settlement of about $15.5 million with operators of an allegedly deceptive prize promotion scheme.
Oxford University Press (OUP) will be publishing a new competition/antitrust related journal called The Journal of Antitrust Enforcement. The new journal is to be edited by Ariel Ezrachi (Oxford CCLP) and William Kovacic (George Washington University).
From OUP:
“The Journal of Antitrust Enforcement is published by Oxford University Press and provides a platform for cutting edge scholarship relating to public and private competition law enforcement, both at the international and domestic levels.
The journal covers a wide range of enforcement related topics, including: public and private competition law enforcement, cooperation between competition agencies, the promotion of worldwide competition law enforcement, optimal design of enforcement policies, performance measurement, empirical analysis of enforcement policies, combination of functions in the mandate of the competition agency, competition agency governance, procedural fairness, competition enforcement and human rights, the role of the judiciary in competition enforcement, leniency, cartel prosecution, effective merger enforcement and the regulation of sectors.”
Yesterday, the Canadian Council of Chief Executives (CCCE) published a new report on the competitiveness of Canadian agricultural processors in global markets and in particular Asia, entitled: Golden Opportunities and Surmountable Challenges: Prospects for Canadian Agriculture in Asia.
From the CCCE:
“Canada’s agri-food sector has the potential to become a growth engine for the entire economy if the federal government moves quickly to negotiate preferential trade agreements with fast-rising Asian markets, a new report concludes.
‘The rise of China, India and other emerging markets has dramatically changed the outlook for Canadian farmers and agricultural processors,’ says Michael Gifford, Canada’s former chief agricultural trade negotiator and the author of the report. … Mr. Gifford’s paper is the fourth in a series of reports commissioned by the Canadian Council of Chief Executives (CCCE) to explore the impact on Canada of Asia’s growing economic power. …
Mr. Gifford notes that, for decades, Canada’s agri-food sector has struggled with boom-and-bust cycles, frequent surpluses and low farm incomes. As in many other industrialized countries, agricultural production increased rapidly in the second half of the 20th century, outstripping population growth.
However, the rise of China, India and other emerging markets is driving major changes in the global agri-food market. Across Asia, rapid urbanization and income growth are contributing to an unprecedented expansion in the number of middle class consumers, and a consequent increase in demand for meats, vegetable oils, dairy products, fruits and sugar as well as processed food and restaurant meals.
All of this augurs well for countries such as Canada that are net agricultural exporters, Mr. Gifford says. ‘Asia’s expanding appetite for imported food provides Canadian agricultural producers with golden opportunities to grow and prosper – provided that the federal and provincial governments and industry work together to identify and overcome a variety of external and internal challenges.’”
CANADIAN CASL (ANTI-SPAM LAW) PRECEDENTS
Do you need a precedent or checklist
to comply with CASL (Canadian anti-spam law)?
We offer Canadian anti-spam law (CASL) precedents and checklists to help electronic marketers comply with CASL. These include checklists and precedents for express consent requests (including on behalf of third parties), sender identification information, unsubscribe mechanisms, business related exemptions and types of implied consent and documenting consent and scrubbing distribution lists. We also offer a CASL corporate compliance program. For more information or to order, see: Anti-Spam (CASL) Precedents/Forms. If you would like to discuss CASL legal advice or for other advertising or marketing in Canada, including contests/sweepstakes, contact us: contact.
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April 24, 2012
The Federal Government appears to be enhancing its online anti-spam legislation resources in advance of Canada’s new Anti-spam Act coming into force. One of the latest examples of this is its new spam and fraud related glossary available at: Glossary. The Government’s new glossary includes definitions of many spam, fraud and Internet crime related terms. For more about Canada’s new anti-spam legislation see: Anti-spam Act.
The Canadian Bar Association’s National Section on International Law has published its April 2012 newsletter and is calling for articles for its next newsletter (see: National Section on International Law).
Included in the International Law Section’s Spring newsletter are articles on sanctions, the Kyoto Protocol, substituted service, the new emergency arbitration rules of the International Criminal Court and international investment arbitration.
Manitoba’s Consumer Protection Office has announced that new consumer protection laws for fair and clear cell phone contracts will come into effect later this year (on September 15, 2012).
According to the Consumer Protection Office, the new rules “focus on ensuring that contracts are clear and provide all important information for consumers” and to ensure that “cell phone contracts are fair to both consumers and businesses”.
The new legislation will: (i) require companies to provide a copy of the contract to consumers before the contract begins, (ii) require companies to fully disclose and explain all charges fees and terms, (iii) restrict companies from making unilateral changes to contract terms, (iv) allow consumers to cancel contracts at any time, for a reasonable cancellation fee, (v) require the minimum monthly cost to be included in advertisements, and (vi) restrict automatic contract renewals.
Manitoba’s decision to introduce stricter regulation of cell phone contracts and disclosure follows similar recent enforcement actions, including by the Competition Bureau (see: here), CRTC (see: here, here, here and here) and Canadian Transportation Agency (see: here), as well as a number of recent cases where significant or novel penalties were imposed, including a recent landmark Supreme Court of Canada misleading contest case in which punitive damages were awarded (see: here, here and here).
These cases and initiatives also appear to signal an increase in the regulation of advertising in Canada in general and heightened scrutiny of price advertising and disclosure in particular (see e.g.: Is the Price Right? Increased Regulatory Scrutiny and Class Actions for Representations Involving Price).
Templates/precedents and checklists to run promotional contests in Canada
Templates/precedents and checklists to comply with Canadian anti-spam law (CASL)
