It is a fundamental principle of contract law, one which public policy favours and subject only to certain well-established and narrowly defined exceptions, that parties are free to determine for themselves the terms of contracts voluntarily entered into. Regrettably, the Supreme Court of Canada recently departed from this principle in Tercon Contractors Ltd. v. British Columbia (Transportation and Highways), thereby injecting uncertainty into the enforceability of contractual arrangements.

The release of the Expert Panel on Securities Regulation’s final report (the Thomas Hockin report) reignited the decades-long debate of whether Canada needs a federal securities regulator. Notwithstanding broad, but not unanimous, political support for its creation, there is no compelling analysis to demonstrate that securities regulation would be improved or that the benefits of replacing our current system outweigh the risks. The constitutionality of such a move is currently before the courts.

Commercial courts have been established in various business centres around the world and are common in developed countries. Factors leading to their establishment in other jurisdictions are very much present in Canada, namely, a judiciary lacking expertise in commercial matters, overwhelmed dockets, and complex commercial disputes requiring expeditious resolution. The results are overwhelmingly positive. Canada would benefit from instituting commercial courts in all of its major commercial centres.

 

It is a commonly held perception that Alberta is a business-friendly province. With little red tape, skinny regulations, modest taxes, a sizeable pool of entrepreneurs, a can-do attitude, near-absent unionization, political invariability, abundant resources, solid infrastructure, a reasonable cost of living, great skiing, private liquor stores, and a young, well-educated workforce, it is difficult to argue against this perception. 

 

Recently, Canada’s Privacy Commissioner Jennifer Stoddart found Facebook violated federal privacy law and had failed to implement corrective measures with respect to four major privacy gaps. Curiously absent from the decision and media coverage was any mention of enforcement action resulting from such findings. Instead, the media reported the privacy commissioner and Facebook were “at odds” but (thank goodness) were “pledging co-operation” and “continuing dialogue.”