Category Archives: Advisors’ guides

The Legal Issues Of Cloud-based Computing Services

by Lisa K. Abe-Oldenburg of Bennett Jones LLP

Business leaders are under tremendous pressure to maximize the value of their company’s IT and data. Staying on top of the ever-changing technology and tools available today can be daunting and give rise to complex legal issues and risks. Done well, cloud computing has the power to transform organizations, giving businesses greater competitive advantage, increasing their bottom line and shareholder value. At the very least, the use of cloud services may provide an opportunity to reduce capital costs and conceive of IT services as a variable cost or expense, in particular for new or replacement IT functionalities. Done poorly and without proper analysis and mitigation of the risks, cloud computing can be disastrous, including data corruption or unauthorized access, violations of the law, serious harm to the organization’s reputation, and (although rare) potentially fines and imprisonment for directors and officers.

What would you do if you could implement safe and secure cloud-based computing services? By following the strategies discussed in this article

What Do Trademark Owners Need to Know About the Trademark Clearinghouse for New Generic Top-Level Domains?

by Bonnie D. Headley of Bennett Jones LLP

The Internet Committee for Assigned Names and Numbers (ICANN), a nonprofit organization that oversees the use of Internet domains, has recently implemented a new generic Top-Level Domain (gTLD) program for the purpose of increasing competition in the domain name space.  Given that this program may also increase incidents of cybersquatting, or the temptation to misappropriate a legitimate trademark owner’s mark, ICANN has built into its new gTLD program several enhanced trademark rights mechanisms, including a Trademark Clearinghouse.

What is the Trademark Clearinghouse?

The Trademark Clearinghouse is a global repository for trademark data.  The Trademark Clearinghouse providers will verify

Beware Of The US “Snowbird Visa TAX BOMB!”

by Roy Berg of Moodys LLP

The current immigration bill pending before the US Congress contains provisions that will make it easier for Canadians and retirees to obtain non-immigrant status in the US. If the bill becomes law, these people will be able to obtain a “Snowbird Visa,” which will entitle the visa holder to be physically present in the US for a period of 240 days. The Canadian press has been agog with articles and commentary on the virtues of the proposed law, but few have addressed the explosive US tax consequences that might befall those who would obtain one of these visas. We refer to this as the “Snowbird Visa TAX BOMB.”

Video: Share Purchase Agreements and Cross-Border Tax

by Andrew Reback of Cassels Brock & Blackwell LLP

If Employees Are Telecommuting … Bucking The Yahoo! Trend

by Earl Phillips of McCarthy Tétrault LLP

Telecommuting may be on the way out at Yahoo! but it is very much alive elsewhere. So if you have employees who are working from home, or if you are considering it, you should think through the employment issues.

The first question is: Do you have a written agreement to set out the telecommuting rules? If not, you need one.

The Types of Employee Leaves of Absence in Ontario

by Christina J. Wallis of Dale & Lessmann LLP

The following chart provides information on the different types of leaves available to employees in Ontario under the Employment Standards Act, 2000:

A Graceful Exit – Paying Credit Facilities In Connection With An M&A Transaction

by Ana Badour of McCarthy Tétrault LLP

It is quite common that an existing credit facility has to be paid out in connection with the completion of an M&A transaction, as a result of, for example, a new credit facility being put in place to finance the acquisition which replaces the purchaser’s existing credit facility, or as a  result of both the purchaser and the target having separate credit facilities in place prior to the transaction, only one of which will be required going forward.

The process of paying out an existing credit facility should be quite straightforward as long as proper consideration is paid to the following five items:

Canada: International Aggressive Tax Avoidance And Tax Evasion

by Gabrielle M.R. Richards of McCarthy Tétrault LLP

Canada’s 2013 federal budget (Budget 2013) released on March 21, 2013 introduces a number of measures to strengthen the ability of the Canada Revenue Agency (CRA) to address international aggressive tax avoidance and to combat international tax evasion so as to maintain and protect Canada’s tax base. These measures reflect the trend in other countries such as the United Kingdom, where the March 20, 2013 budget announced significant new measures on tax avoidance and tax evasion (including “name and shame”) to increase tax compliance. These measures arrive at a time of increased social activism, media attention and political interest in one’s “fair share” of taxes being paid internationally. Further, revising deficits and falling tax revenues may be a reason for the recent focus by tax administrations on tax abuse. The Forum on Tax Administration (FTA), which actively shares information among G20, OECD and non-OECD countries, has identified compliance with tax laws as a key challenge facing tax administrations in the 21st century.

Coincidentally, on April 4, 2013 the International Consortium of Investigative Journalists (ICIJ) released information gathered from an investigation into the world of offshore money, which investigation revealed a global tax evasion web of named individuals and groups, including 450 Canadians.

The CRA quickly responded to the media coverage of the ICIJ release and

IRS Says Hundreds Of Thousands Of US Citizens Are Not Reporting Canadian Trusts

by Roy Berg and Lisa Handfield of Moodys LLP

This week [May 6, 2013] the IRS released statistics on the number of returns it received in 2010 from US citizens with foreign trusts. The results are startling (you may find the report by clicking here). In all of Canada only 324 returns were filed that report ownership in a non-US trust, which likely means hundreds of thousands of US citizens residing in Canada had not filed the appropriate returns.  This is important for two reasons: first, the penalties for not filing are draconian (but waivable); and second, last week the US Government Accountability Office (GAO) issued a report that encouraged IRS to pursue those taxpayers who file late returns using a technique known as “quiet disclosure.”

Background

The US State Department knows of more than 687,000 US citizens residing in Canada but most experts agree that the actual number is several times that number.  Many common Canadian retirement and savings vehicles

Who Owns Your Social Media Account And Connections?

by Jennifer L. Parent of McLane, Graf, Raulerson, & Middleton, Professional Association

Corporate tweeters or bloggers – employees who post promotional and often entertaining commentary on behalf of their employers’ businesses – add much of their own personal brand – their voice, their opinions, their snarky remarks – to the information they are disseminating on the company’s behalf. Often, the more personal their posts, the more followers they attract and the more the company stands to benefit. Ironically therein lies the crux of an emerging concern among corporate counsel. Who do these on-line accounts and relationships belong to?

Selected Tax Issues And Traps Associated With Estate Freezes

by Michael Goldberg of Minden Gross LLP

There are many potential issues and traps that tax practitioners need to navigate to successfully implement and maintain an estate freeze. This is the first article in a series in which I’ll discuss a number of these issues. In particular, I will discuss the following topics:

Carrying On Business In Canada – An Overview Of The Canadian Legal And Business Landscape For Investing, Starting And Operating A Business In Canada

by Heenan Blaikie LLP

1. PREFACE

Carrying on Business in Canada is a general overview of, and introduction to, Canadian legislative and business considerations involving starting and operating a business, and investing in Canada.

Carrying on Business in Canada was written by lawyers from Heenan Blaikie with significant experience and knowledge in the area of the law which each lawyer covered. The commentary herein is intended to be a general overview and should not be regarded as advice or legal opinions of Heenan Blaikie and its practitioners.

Changes to the law can occur at any time. This document reflects the law at a moment in time, but depending on when the document is read, may not reflect recent changes in the Canadian legal and business systems. Qualified advice should be sought when considering investing or starting a business in Canada. Unless otherwise provided, all money amounts are in Canadian dollars.

2. GENERAL INFORMATION

2.1 Location And Area

Canada is located principally above the 49th parallel in North America. Canada is a constitutional, federal state consisting of ten provinces and three territories. The country has an abundance of natural resources including forests, oil and gas, various mineral deposits, and water. Much of Canada is sparsely populated and a large percentage of Canada’s population of more than 33 million people live within 160 km of the border with the United States. Ontario and Quebec, with approximately 12.8 million and 7.7 million people respectively, are the two largest and most populous Canadian provinces. The powers of the federal and provincial governments are set out in the Constitution Act, 1867. Matters that cross provincial borders such as immigration, banking, the national currency, international trade and intellectual property are within the exclusive jurisdiction of the federal government. The provinces are responsible for private property rights, commerce, education and a number of social programs. The political head of the government of Canada is its Prime Minister. The system of government is similar to that of the United Kingdom, in that the House of Commons is the source of legislative authority in Canada. The Prime Minister is the head of the political party with the most members in the House of Commons. The Supreme Court of Canada is the country’s last court of appeal. Below it are two separate court systems, that of the federal government and that of the provincial government, each with its own trial and appellate divisions. Each court system hears cases on issues within either the federal or provincial jurisdiction, although all criminal matters are heard in the provincial courts. The Supreme Court of Canada is the final court for both the federal and provincial court systems.

2.2 Population And Language

Canada has two official languages: English and French. Although most Canadians consider English their mother tongue, French is the mother tongue of most people living in Quebec. The federal and provincial governments have a number of legislative initiatives to ensure

Compensation For Injuries Sustained During Sex On Business Trip

by Neil Guthrie of Borden Ladner Gervais LLP

Back in July 2012, we covered PVYW v Comcare (No 2), [2012] FCA 395, which concerned an employee in the HR department of an Australian government agency who was injured on a work-related trip to a country town in New South Wales. The injuries were sustained, not while she was conducting budget reviews and staff training, but instead during the course of a sexual encounter in her motel room with an old friend she had hooked up with: ‘the respondent was injured whilst engaging in

Employee vs. Independent Contractor: The Test Refined

by Paul Carenza and Kristin Taylor of Cassels Brock & Blackwell LLP

The issue as to whether an individual is providing services as an independent contractor or performing services as an employee is a perennial one. The Federal Court of Appeal recently weighed in to reconcile competing tests on the proper way to determine whether an individual is a contractor or truly an employee.

Don’t Photograph The Machines!

by Melissa Nott Davis of McDermott Will & Emery LLP

Speaking to the Economic Espionage Act, 18 U.S.C., the U.S. Court of Appeals for the Sixth Circuit affirmed the convictions but reversed the sentences as too modest in United States v. Howley, Case Nos. 11-6040; -6071; -6194 (6th Cir., Feb. 4, 2013) (Sutton, J.)

Clark Roberts and Sean Howley worked as engineers at Wyko Tire Technology. In November 2006, Wyko entered a deal to supply tire parts to Haohua South China Rubber Company. However, Wyko had never previously made the Haohua parts. Goodyear, a Wyko customer, used machines just like the ones Wyko needed to produce the subject tire parts. Around the same time that Wyko was struggling to design and make the Haohua parts, Goodyear asked Wyko to send a technician to repair some of its tire-assembly machines. Wyko decided to send Roberts and Howley, the two engineers who happened to be assigned to the Haohua tire part project. Both men signed confidentiality agreements before their visit, acknowledging that they might be given access to Goodyear’s trade secrets and agreeing that they would not use or disclose that information. Roberts and Howley were reminded that no cameras were allowed and were escorted by Goodyear employees while they were at the plant. At one point, Roberts and Howley were briefly left unescorted.