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Highlights
DIRECTORS' AND OFFICERS' LIABILITY
Liability Without Borders – the Challenge of Being a
Director and Officer in a Global Economy: Part II
Jeffrey S. Leon, Preet K. Bell
In the second and final installment of their article on the consequences for corporate directors and officers of globalization and increased economic integration, Jeffrey Leon and Preet Bell focus on the impact of class actions. The authors review developments in securities class actions, including the test for obtaining leave to bring an action under the secondary market liability provisions of the Ontario Securities Act ("OSA"). As can be seen from that review, application of this test can lead to liability for some directors, but not others. In addition and somewhat controversially, common law claims have been certified together with OSA claims, and officers and directors can be subject to class actions under oppression remedy provisions. Directors and officers must also recognize that productions in one jurisdiction could potentially be used by prospective plaintiffs in another jurisdiction, and counsel acting for them in different jurisdictions should coordinate positions regarding production and discovery. And what of the ability of defendants to know that case to be met? As the authors point out, some terms used in pleadings - such as "representation" - can include a vast number of misrepresentations and non-disclosures. Defendants are entitled to sufficient information to enable them to resist certification and to mount a defence. The courts' ability to certify national and global classes has also been clarified, with Ontario courts showing a willingness to certify these broad classes in limited circumstances. The authors conclude with sound advice: indemnification provisions and D&O insurance should be negotiated with recognition of increased risks posed by globalization.
OCCUPATIONAL HEALTH AND SAFETY
Ontario (Labour) v. United Independent Operators Ltd.:
Employers Must Count Independent Contractors in Determining OHSA Requirements
J. Thomas Curry, Brian Kolenda
Thomas Curry and Brian Kolenda examine the impact of the recent decision of the Ontario Court of Appeal in Ontario (Labour) v. United Independent Operators Ltd. on employers' obligations under occupational health and safety legislation. In one sense, the outcome of the case was understandable. Long-standing authority from that Court established that under Ontario's Occupational Health and Safety Act, an "employer" includes the employer of an independent contractor. The real issue was whether the requisite number of workers were "regularly employed" in the workplace, and the evidence warranted a conclusion that this requirement had been met. However, as the authors explain, the Court's decision may be significant in the context of other provisions of the statute that could also apply to independent contractors who are a regular part of the business, but operate primarily off-site.
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Board
Brian J. Gover
Editor-in-Chief
Stockwoods LLP
Edward J. Babin
Babin Barristers
Michael E. Barrack
Thornton Grout Finnigan LLP
Robyn M. Ryan Bell
Bennett Jones LLP
William Brock
Davies Ward Phillips & Vineberg LLP
J. Thomas Curry
Lenczner Slaght Royce Smith Griffin
Ivan J. Derer
Derer Law
Frank R. Foran, QC
Borden Ladner Gervais LLP
Donald H. Jack
Heenan Blaikie LLP
André Legrand
Ogilvy Renault LLP
Jeffrey S. Leon
Bennett Jones LLP
J. Bruce McMeekin
Miller Thomson LLP |