Scott H.D. Bower

Scott H.D. Bower

Bennett Jones LLP

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Supreme Court of Canada Revisits Oppression

A corporation's failure to follow legal formalities under the Canada Business Corporations Act, RSC 1985 c C-44 [CBCA] does not, by itself, establish oppression, the Supreme Court recently held in Mennillo v Intramodal inc.,...more

11/22/2016 - Appeals Business Corporation Act Canada Oppression Remedy Shareholder Litigation Shareholders Supreme Court of Canada

When is Communication Between a Client’s Accountant and Lawyer Privileged?

Communications between lawyers and their clients’ accountants or other non-legal professionals are not in themselves privileged but can be where the communication is in “furtherance of a function essential to the...more

10/6/2016 - Attorney-Client Privilege Canada Privileged Communication Tax Practitioner Privilege

Canadian Contractual Interpretation Just Got More Difficult

Supreme Court of Canada Revives Correctness Test for Interpreting Standard Form Contracts - There is a new exception to the new Canadian approach for reviewing the interpretation of contracts: a trial court’s...more

9/19/2016 - Canada Contract Disputes Contract Interpretation Corporate Counsel Standard Forms Supreme Court of Canada Young Lawyers

Whole Agreement Clause Upheld by Court of Appeal

A properly-worded whole agreement clause is effective to exclude liability for innocent and negligent misrepresentations, the Alberta Court of Appeal recently held in Houle v Knelsen Sand and Gravel Ltd, 2016 ABCA 247...more

9/9/2016 - Appeals Canada Contract Drafting Contract Terms Negligent Misrepresentation Representations and Warranties

Host Liability, 10th Edition

This booklet is intended as a basic guide to host liability, which is the potential for personal and corporate liability for injuries sustained by employees, clients and other persons as a result of alcohol intoxication. This...more

6/13/2016 - Canada Corporate Liability Duty of Care Employer Liability Issues Personal Liability Social Host Liability Supreme Court of Canada

Internal Investigations and Privilege: A Redux

An internal investigation into a workplace accident was privileged, and thus protected from disclosure, the Alberta Court of Queen’s Bench recently held in Alberta v Suncor Energy Inc, 2016 ABQB 264 [Suncor]. The Court found...more

5/18/2016 - Attorney-Client Privilege Canada Confidential Information Internal Investigations OHSA Privileged Communication Workplace Injury

Trial Court’s Interpretation of a Contract Much Harder to Overturn, the Supreme Court of Canada Confirms

To overturn a trial court’s interpretation of a contract on appeal, it is not enough that the trial court was wrong, it must be really wrong, the Supreme Court of Canada recently affirmed in Heritage Capital Corp v Equitable...more

5/9/2016 - Arbitration Canada Contract Interpretation Supreme Court of Canada

One Arbitration Binds the Next: Alberta Court of Appeal Says Res Judicata Applies to Arbitrations

The doctrines of res judicata and issue estoppel can, as a matter of law, apply to subsequent arbitration proceedings, the Alberta Court of Appeal recently held in Enmax Energy Corporation v TransAlta Generation Partnership,...more

1/26/2016 - Arbitration Estoppel Power Purchase Agreements Res Judicata

Are CCAA Proceedings a Panacea for Assignment or Novation Without Consent?

A purported assignment of a contract without consent and an alleged novation were ineffective, the BC Court of Appeal recently held in Barafield Realty Ltd. v. Just Energy (B.C.) Limited Partnership, 2015 BCCA 421 [Barafield]...more

11/12/2015 - Canada CCAA Consent to Assignment Novation Private Utility Rental Property

Is an Internal Investigation Privileged?

An internal investigation into whistleblower allegations was privileged, thus protected from disclosure, the Alberta Court of Queen’s Bench recently held in Talisman Energy Inc v Flo-Dynamics Systems Inc, 2015 ABQB 561...more

9/23/2015 - Anonymity Attorney-Client Privilege Canada Conflicts of Interest Internal Investigations Privileged Documents Whistleblowers

Unpaid Subcontractors Gain Protection: the Supreme Court of Canada Clarifies the Builders’ Liens Act

An unpaid subcontractor has both a builder’s lien and a trust remedy, the Supreme Court of Canada (SCC) just determined in Stuart Olson Dominion Construction Ltd v Structal Heavy Steel, 2015 SCC 43. In a unanimous decision,...more

9/21/2015 - Construction Liens Contractors Prime Contractor Subcontractors Supreme Court of Canada

Dangers of a Self-Drafted Letter Agreement

Court Unwilling to Impose a Reasonableness Limit on Expenditures - Exploration expenditures incurred to earn into a mining claim did not have to be reasonable, the B.C. Court of Appeal recently held in American Creek...more

7/21/2015 - Canada Contract Disputes Contract Drafting Contract Interpretation Mining

Inconsistent Administrative Tribunal Decisions: The Alberta Court of Appeal Weighs In

Conflicting interpretations of the same statute by an administrative tribunal are unlikely to be reasonable, let alone correct, the Alberta Court of Appeal recently held in Altus Group Limited v Calgary (City), 2015 ABCA 86...more

3/27/2015 - Canada Statutory Interpretation Tribunals

New Good-Faith Duty of Honesty in Contractual Performance Recognized by Supreme Court of Canada

In a precedent setting case, the Supreme Court of Canada has: (1) recognized good faith as a "general organizing principle" of Canadian contract law; and (2) recognized a new duty of "honest performance", which requires...more

11/26/2014 - Canada Contract Formation Good Faith SCC

New Good-Faith Duty of Honesty in Contractual Performance Recognized by Supreme Court of Canada

A new duty of honest performance has been imposed on all Canadian contracts by the Supreme Court of Canada. The notion of a general and independent doctrine of good faith performance of contracts has historically been...more

11/14/2014 - Canada Contract Disputes Good Faith

Legal Privilege

Privilege provides special protection that exempts certain documents and other forms of communication from having to be disclosed in legal proceedings. Its protection is powerful, but it can be easily lost if the privileged...more

11/13/2014 - Attorney-Client Privilege Canada

Proving An Operator’s Gross Negligence: Is Intention Required?

Establishing an operator’s gross negligence requires “a degree of intentionality”, the Alberta Court of Queen’s Bench recently held in Bernum Petroleum Ltd v Birch Lake Energy Inc, 2014 ABQB 652 [Bernum]....more

11/10/2014 - Canada Gross Negligence Intent Negligence

Regulatory Proceedings and Litigation Privilege: ‘Zone of Privacy’ Bolstered in Alberta

Litigation privilege applies to regulatory proceedings where the consequences of the proceedings are significant, and the privilege cannot be excluded by statute without express and clear language, the Alberta Court of Appeal...more

6/20/2014 - Appeals Canada Litigation Privilege

Confidentiality Clauses and Privilege: A Delicate Balance

Parties to a mediation have a wide latitude to contractually shape the extent of confidentiality that applies, and even may exclude exceptions to settlement privilege, the Supreme Court of Canada recently held in Union...more

5/13/2014 - Confidential Information Contract Drafting Contract Interpretation Mediation SCC

Myth of Trial No Longer Governs: Alberta Embraces New Summary Judgment Test

Effecting a cultural shift, a new summary judgment test has been embraced by the Alberta Court of Appeal in Windsor v Canadian Pacific Railway Ltd, 2014 ABCA 108 [Windsor]. This new test will make it easier to obtain summary...more

3/24/2014 - Canada Summary Judgment

Default Notices and Freehold Leases: Take Two

There may be a sign that last year’s dire consequences for a freehold oil and gas lessee who does not quickly respond to a default notice by commencing legal proceedings may be moderating somewhat, at least in certain...more

1/17/2014 - Canada Mineral Leases Natural Resources Notice of Default Oil & Gas

Host Liability, 9th Edition - Liability for Injuries Sustained by Employees, Clients or Others as a Result of Alcohol Intoxication

This booklet is intended as a basic guide to host liability, which is the potential for personal and corporate liability for injuries sustained by employees, clients and other persons as a result of alcohol intoxication. This...more

12/3/2013

SCC Confirms the Ability of Taxpayers to Seek Rectification to Remedy Errors that May Impact Tax Positions

Uninteded tax consequences of a contract can be avoided by rectification, the Supreme Court of Canada ruled in Québec v Services Environnementaux AES inc., 2013 SCC 65 (AES). ...more

12/2/2013 - Canada SCC Tax Deferral Tax Liability

Damages for Royalty Error Limited to Two Years: Ignorance of Mistake May Not Stop Limitations Clock

A royalty holder must make reasonable inquires to confirm that a royalty has been properly paid and will be limited to a two-year recovery if not, the Alberta Court of Appeal has ruled in Canadian Natural Resources Limited v...more

11/29/2013 - Canada Oil & Gas Royalties Statute of Limitations

Broken a Contract? The Alberta Court of Appeal May Have Good (or Bad) News For You

A recent decision of the Alberta Court of Appeal has opened the door for defendants in contract cases to implicate other would-be contract-breakers, thereby potentially reducing the defendants’ exposure to liability while...more

10/8/2013 - Breach of Contract Canada

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