Stikeman Elliott’s top 10 legal updates from 2021

It is that time of year again when we look back at some of the most popular legal updates written by our lawyers throughout the past year. We are excited to share with you the top posts from 2021 that caught your attention, which span a wide range of topics on key legal developments or significant precedent-setting matters affecting Canadian and international business.

As always, we look forward to keeping you informed in the coming year and continue to appreciate your feedback on our publications.

1. SPACs: An Overview of the Latest Investment Trends

Special Purpose Acquisition Corporations (SPACs) have become a popular vehicle in the corporate finance and M&A world. In this post from the Spring of 2021, corporate finance lawyers Vanessa Coiteux, Michael Decicco and Simon Romano explain the SPAC concept and the latest developments in Canadian SPACs. The post includes a Lexpert TV interview with Simon Romano, who was instrumental in bringing SPACs to the Canadian marketplace. Read more.

2. Carve-out Transactions: Not Your Average M&A Deals

As discussed in this post from our Montréal M&A Group, carve-out transactions present unique opportunities for established businesses looking to streamline their operations while raising capital through the monetization of their non‑core assets. The authors go on to discuss some of the challenges of this type of transaction and how, in our experience, they can potentially be dealt with. Read more.

3. The Duty of Honest Contractual Performance: The Supreme Court’s Latest Views

Early in 2021, litigators Michael Mestinsek, Joey Wenig and Ben Muller reviewed the Supreme Court of Canada’s important C. M. Callow Inc. v. Zollinger decision. The Callow case represents the Court’s most important statement on the issue since its seminal 2014 ruling in Bhasin v. Hrynew. As explained in the post, the Court provided guidance on the scope and operation of the duty of honest contractual performance established in Bhasin while also touching on its practical implications for contracting parties. Read more.

4. Ontario’s New Legal Online Gaming Market: Is This the Future for the Gaming Industry Nationwide?

In September, we discussed the Alcohol and Gaming Commission of Ontario’s newly unveiled plans for a modernized online gaming market in Ontario. This initiative followed the relaxation of federal criminal restrictions on single-event wagering. Ontario is the first province to announce a regulatory scheme that will allow Canadian businesses to play a significant role in the lucrative domestic sports betting market. Read more.

5. OSFI Focuses on Cybersecurity Incident Reporting and Technology and Cyber‑risk Management

As we reported late in the summer, Canada’s Office of the Superintendent of Financial Institutions (OSFI) has announced significantly stricter cybersecurity incident reporting requirements for banks, insurance companies and other federally regulated financial institutions (FRFIs). Highlights include elimination of the materiality threshold, a 24‑hour reporting window and specific consequences for failures to report. In November, OSFI followed up with a draft of its new Guideline B‑13 on technology and cyber‑risk management. Read more.

6. Interpreting Releases: The Supreme Court of Canada Clarifies the Correct Approach

Releases are contracts and should therefore be interpreted according to the general principles of contractual interpretation, the Supreme Court ruled in July. As Alexandra Urbanski of our Toronto Litigation & Dispute Resolution Group noted, the decision opens the door for courts to analyze releases in light of a wider range of considerations, including surrounding circumstances. Her post concludes by looking at how the decision could affect the drafting of releases. Read more.

7. Reverse Vesting Orders: Will They Replace CCAA Plans?

In July, our Restructuring & Insolvency Group took a look at the rise of reverse vesting orders (RVOs), which have emerged as the tool of choice in many complex CCAA restructurings. In an RVO, unwanted assets are transferred out of an insolvent business, leaving behind only the assets that are desired by the prospective purchaser. The post reviews the mechanics of an RVO and outlines some situations in which this approach may be advantageous. Read more.

8. Student Employees in Québec: Equal Pay for Equivalent Work

Québec businesses that hire students for short-term positions should take note of a Court of Appeal ruling from June 2021. As Eveline Poirier of our employment group wrote, the Court held that, like other workers, students are guaranteed “equal pay for equivalent work” under Québec law. While work experience may justify lower pay for some junior employees, in this case the skills of the students were virtually the same as those of their full-time co-workers. Read more.

9. Simplified Disclosure: The CSA Proposes to Consolidate Financial Statements, MD&A and AIF into a Single Document

One of our many securities law updates for 2021 concerned the Canadian Securities Administrators’ (CSA) proposal to simplify disclosure under NI 51‑102. This initiative includes the consolidation of annual and interim financial statements and MD&A into a single disclosure document. The proposal would also rectify certain disclosure gaps and would potentially allow venture issuers to report semi‑annually. Read more.

10. Competition Bureau Publishes New Competitor Collaboration Guidelines

In May, Irma Shaboian of our Ottawa office reported on the Competition Bureau’s newly released Competitor Collaboration Guidelines. Like the 2009 version that preceded them, the new Guidelines set out the Bureau’s approach to assessing collaborations between competitors and enforcing the related provisions of the Competition Act. Highlights include closer scrutiny of potential “sham” agreements, increased attention to algorithmic price‑fixing and a broader approach to identifying competitors, among others. Read more.

Visit our Knowledge Hub to read more articles on a variety of legal topics or subscribe to our updates.