


Franchising & Distribution
FRANCHISING & DISTRIBUTION
Franchising and distribution arrangements are important elements of our global economy. A strong franchising or other distribution network enables companies to grow revenues by expanding beyond their home markets to sell their products, services and customer experiences on a national or international stage. Many brands that are global household names today achieved their success through master franchisees and distributors who bring established products, services and customer experiences to international markets.
At McMillan, we understand that businesses involved in franchising face unique contractual and legal challenges. Franchisors have invested valuable time and money in developing brands and products, and they are entrusting third parties to uphold standards and maintain goodwill. In many provinces, franchisors also must comply with statutes requiring franchise disclosure. Franchise participants require specialized legal counsel that can help protect their valuable assets, while maximizing their business opportunities.
McMillan’s franchise and distribution lawyers have extensive experience navigating the complexities of franchise law as they provide strategic legal advice on franchising and distribution arrangements to some of the world’s largest franchisors and distributors. Our team – which includes a former in-house counsel and franchise law specialist from one of the world’s best-known fast service restaurants – advises clients throughout the entire franchise life cycle. We help global brands assess and establish franchise systems, draft the legal documents required to ensure the effective operation of the franchise, resolve franchise disputes between franchisor and franchisee through mediation, arbitration or litigation, and advise on the process behind purchasing and selling a franchise.
FRANCHISE LITIGATION
McMillan’s litigation lawyers have wide-ranging experience representing Canadian, American and other international franchisors and suppliers in all manners of franchising and distribution disputes. We regularly represent brand-name franchisors and manufacturers in litigation brought by franchisees, dealers and distributors, including defending against injunctive relief, defending disputes regarding dealer and franchisee termination, and cases based on franchise legislation. These cases often relate to claims seeking rescission remedies for late or allegedly deficient disclosure, alleging failure to disclose material facts, alleging misrepresentations in disclosure documents or statements of material change, and alleging breach of the obligation of fair dealing.
Our lawyers are well-versed on provincial legislation for franchise agreements and seasoned experts at navigating disputes towards the most profitable outcomes. Nationally renowned for thought leadership in franchise legislation and law, several members of our franchise practice serve on the Canadian Franchise Association’s Legal and Legislative Affairs Committee and routinely write and lecture on franchise and distributorship issues.
Our expertise ranges from defending claims for breaches of provincial franchise legislation, deficient disclosure documents and resisting injunctions designed to restrain terminations, to enforcing non-competition clauses against and recovering inventory and payments from current and former franchisees/distributors.
In the distribution area, we advise major manufacturers, wholesalers, distributors and dealers on a full range of distribution matters, helping them create and maintain their legal relationships.
As a leader in franchise and distribution law, McMillan helps clients by:
- Drafting the complete range of franchise and supporting agreements including master franchise agreements, and distribution and sales representative agreements
- Structuring license and distribution arrangements
- Preparing franchise disclosure documents and keeping them current
- Advising on the financing, acquisition or sale of existing franchise systems or individual franchise locations
- Assisting with the termination of franchisor/franchisee, distributor and agency relationships
- Advising on the purchase or sale of distribution businesses
- Resolving franchisor/franchisee disputes
- Advising on and enforcing the protection of trademarks and other proprietary rights
- Advising on legislation governing advertising, contests, packaging and labelling, and other regulatory matters
- Preparing territorial restrictions and non-competition covenants
- Advising on the development of distribution networks
- Advising on and litigating the applicability of franchise legislation to distribution and sales representative relationships
- Advising on and defending against alleged breaches of franchise legislation and other distribution-specific legislation
- Advising on the termination of franchisees and distributors and defending termination decisions
- Defending clients in class actions
- Litigating and enforcing intellectual property rights, restrictive covenants and non-competition clauses
- Recovering inventory and enforcing payment obligations
- Resolving disputes through alternative dispute resolution, including mediation and arbitration
Primary Contacts
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Insights (74 Posts)
Net Benefit Reviews Under the Investment Canada Act – Some Practical Thoughts
Glencore plc’s recent approaches to the shareholders of Teck Resources has once again brought the Investment Canada Act into the spotlight.
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Jun 6, 2023
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The Bureau Issues Final Enforcement Guidance on the New Criminal Prohibition on Wage-Fixing and No-Poaching Agreements
Providing insights on the Competition Bureau’s 2023 Guidelines describing the Bureau’s approach to wage-fixing and no-poaching agreements.
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Jun 5, 2023
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The Franchise Resale Disclosure Exemption: Franchisors “Wing It” at Their Own Peril
Jayasena Management Corp. et al. v Savannah Wells Holdings Inc. et al. considers the franchise resale disclosure exemption under the Arthur Wishart Act.
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May 17, 2023
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Settlement Counsel – valuable addition to the dispute-resolution toolkit
Settlement Counsel is litigation counsel engaged for the sole purpose of resolving a dispute or settling a case.
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Mar 28, 2023
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Québec: Bill 96’s Impact on Franchise Businesses
Impact of new French language regulations in the franchise space.
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Feb 7, 2023
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Franchising in Canada – 2022 Year in Review
In this update we summarize some of the more significant franchise law cases and legislative developments that occurred in 2022.
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Feb 6, 2023
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No Goodwill Absent Use or Registration – Recent Decision Confirms Established Trademark Principles
Case comment on 2788610 Ontario Inc. v. Bhagwani [2022] O.J. No. 778. Interlocutory injunctions in trademark and passing off cases.
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Nov 11, 2022
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No Discovery Before Leave in Secondary Market Securities Actions
The Court in Kwong v. iAnthus denied a plaintiff's request for documentary discovery before he obtained leave to bring a secondary market securities action.
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Apr 18, 2022
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First Reported Decision Under New Brunswick’s Franchises Act on Disclosure Document Fatal Flaws
Alphataho Inc., et al v Maaco Canada Partnership LP, et al, is the first reported decision under New Brunswick's Franchises Act on disclosure fatal flaws.
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Apr 1, 2022
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Good Smoke? More Guidance on Good Faith from the Ontario Court of Appeal
A recent decision by the Ontario Court of Appeal provides more guidance on good faith.
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Feb 14, 2022
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Mandatory COVID-19 Vaccination Policy Upheld
An Ontario arbitrator upheld an employer's vaccine mandate for both a site where a 3rd party obligation existed and a related site with no such obligation.
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Jan 12, 2022
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Ontario Arbitrators Continue to Uphold Terminations of Employees who Breach COVID-19 Safety Protocols
A recent decision by an Ontario arbitrator further affirmed the notion that dishonesty during COVID screening protocols by an employee can lead to termination.
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Jan 12, 2022
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Will a Billion Dollar Termination Shift the M&A Landscape?
The authors discuss the Ontario Superior Court of Justice's decision in Cineplex v. Cineworld, a "busted deal" case about interim operating covenants.
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Dec 17, 2021
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Mandatory Vaccination Policy: “Reasonable, Enforceable”
A labour arbitrator upheld an employer’s mandatory vaccination policy, finding the policy to be reasonable and enforceable.
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Nov 11, 2021
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Certification Denied: An Important Win for Competition Class Action Defendants
Certification denied in DRAM class action.
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Nov 10, 2021
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A Tale of [NORSTEEL in] Two Cities
The recent decision in Norsteel Building Systems Ltd. v. Toti Holdings Inc. highlights the importance of trademark clearance searching for businesses.
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Nov 10, 2021
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Privacy Commissioner Releases More Guidance for Video Teleconferencing Companies
Video teleconferencing companies face unique cybersecurity and data privacy risks. The OPC has new guidance on how these companies can best address them.
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Nov 3, 2021
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Real Estate Litigation: Summer Highlights
Even in the summer months, the legal news does not let up. Here are some recent decisions and legislative developments as we head into the 2021 fall season.
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Sep 21, 2021
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Watch as that Trust is Swept Away
Suppliers and subcontractors in the construction industry should be mindful of a recent unreported decision of the Ontario Superior Court of Justice.
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Jul 30, 2021
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Another Franchisor Freshly Squeezed by Material Deficiencies in its Disclosure Document
The Court in Freshly Squeezed applied the Raibex test to determine what deficiencies in disclosure entitle a
franchisee to the two-year rescission remedy.
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Jun 14, 2021
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Québec Class action – What’s new? Examination of the defendant at the authorization stage
EIn class actions, the right to examine an affiant is the subject of conflicting case law.
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Jun 14, 2021
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Canadian Privacy Commissioners Issue Joint Guidance on Vaccine Passports
Commissioners warn that privacy considerations must be “front and centre” as organizations develop and implement vaccine passports in the coming months
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May 25, 2021
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BILL 96 – Top 10 Impacts of the Revised Charter of the French Language on your Business and When to Expect Implementation of Such Revisions
Changes to Québec’s language laws are coming. Here is a top ten list of potential impacts, and the likely timeline and process for adoption.
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May 19, 2021
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Commercial Leases During the COVID-19 Lockdown: Where are we Headed?
Ontario has also passed legislation to protect commercial tenants.
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May 17, 2021
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Mandatory Vaccination Policies for Employees: Enforceable or a Shot in the Dark?
There are vaccines, and there will be (at some point) enough for everyone in Canada to receive it. But what happens if your employees refuse to be vaccinated?
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Dec 23, 2020
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Sick, Lies, and Questionnaire: Arbitrators Uphold Terminations of Employees who Breached COVID-19 Safety Protocols
Two recent labour arbitration decisions held that attending work in breach of employer COVID protocols can lead to termination for cause.
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Dec 9, 2020
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Canada’s New Cybersecurity Certification Goes Live
The federal government has launched a voluntary CyberSecure program to help small and medium-sized organizations protect against cybersecurity threats
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Oct 13, 2020
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Mandatory Indoor Face Coverings: What Ontario Employers Need to Know
Mandatory Indoor Face Coverings: What Ontario Employers Need to Know
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Oct 6, 2020
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Amendment to Ontario Franchising Legislation
The Amendment to Ontario's franchise legislation coming into effect on September 1, 2020 brings changes that have been eagerly awaited by franchisors.
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Aug 28, 2020
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Federal Court Defends CASL, Says Prohibition on Spam is Constitutional
he FCA ruled that CASL's provisions relating to the regulation of commercial electronic messages are constitutional, despite challenge from CompuFinder
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Jul 1, 2020
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Material Adverse Effect Clauses in a COVID-19 World
Review and analysis of recent developments where parties try to rely on MAE clauses as a mechanism to avoid closing a transaction.
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Jun 23, 2020
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Privacy Penalties – Canadian Competition Bureau Wades Into Privacy Enforcement
Organizations operating in Canada are advised to immediately review their privacy-related policies and marketing to avoid false or misleading representations
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May 26, 2020
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9 Things You Should Do Right Now to Protect Your Franchise System During the COVID-19 Pandemic
Tips to help franchisors mitigate risks that may result from the COVID-19 pandemic and how to prepare for future emergency business interruptions
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May 13, 2020
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Caught by Release: Franchisees Can’t Have Their Cake and Eat It Too
New Vision Renaissance MX Ltd. v. The Symposium Café Inc confirms that Ontario Courts will uphold appropriately crafted releases given by franchisees.
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Mar 30, 2020
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COVID-19: Alberta Government Announces List of Essential Services
Alberta's Government has published lists of essential services and non-essential places of business not permitted to
offer or provide services to the public.
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Mar 29, 2020
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COVID-19: “Essential” Information About the Consequences of Continuing to Operate a “Non-Essential Business” in Ontario and Québec
An outline of the potential consequences to continuing to operate a business ordered to close by the governments of Quebec and Ontario.
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Mar 25, 2020
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Unbearable Lite-ness: Lenders’ Remedies in the Age of Missing Covenants
The author discusses the recent trend toward borrower-friendly loan documents and the remedies available to lenders in Canada.
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Mar 23, 2020
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Coronavirus: Harbinger of a New (Old) Approach to Restructuring in Canada?
Restructuring options and challenges in the time of COVID-19.
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Mar 20, 2020
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An Unsigned Certificate Remains a Fatal Franchise Disclosure Document Flaw in a Post-Raibex World
An Ontario Superior Court decision confirms that an unsigned certificate accompanying a Franchise Disclosure Document can constitute a fatal flaw entitling a franchisee to rescind the agreement.
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Feb 19, 2020
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“Can I Tell You Something in Confidence?” Legal Privilege in M&A Transactions
The authors discuss challenges to maintaining legal privilege in M&A transactions. Parties in Ontario can learn from the experience of other jurisdictions.
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Jan 22, 2020
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Contact Information Posted on Websites Not Necessarily Up for Grabs
Investigation findings of the Office of the Privacy Commissioner highlight issues surrounding the use of personal contact information posted on websites
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Dec 19, 2019
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Advisory Council Recommends that Ontario Government Clarify Provisions of the Arthur Wishart Act (Franchise Disclosure), 2000
The Ontario government recently established an advisory body called the Business Law Modernization and Burden Reduction Council.
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Nov 8, 2019
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The Supreme Court of Canada rules on the distinction between an employee and an independent contractor or franchisee in Québec pursuant to a franchise agreement
The Supreme Court of Canada rules on the distinction between an employee and an independent contractor or franchisee in Québec pursuant to a franchise agreement
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Jul 31, 2019
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The Supreme Court of Canada rules on the distinction between an employee and an independent contractor/franchisee in Québec pursuant to a franchise agreement
In recent years, many authors have analyzed the law of franchise in Québec.
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Jul 5, 2019
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The Next Phase of Canadian Cannabis: What to Expect in 2019 and Beyond
On June 14, 2019, Health Canada unveiled its Final Regulations for New Cannabis Products
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Jun 21, 2019
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Franchise Law Webcast: Trends Affecting Franchise Systems Operating in Canada
In this interactive Q&A style webinar, members of our franchise and distribution team will provide an overview of the Canadian legal landscape and recent trends affecting franchise systems operating in Canada.
Apr 25, 2019
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A Word of Warning to Franchisors – ADR Provisions May Postpone the Limitation Period for Rescission
In PQ Licensing S.A. v. LPQ Central Canada Inc., the Court' decision hinged on the alternative dispute resolution provisions set out in the franchise agreement.
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Nov 2, 2018
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No Injunction For You – Recent Victory for Franchisors Seeking to Terminate Franchise Agreements
July 2018, a recent decision by the Ontario Superior Court gives guidance to when the courts will refrain from granting interlocutory injunctions to franchisees
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Jul 10, 2018
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A Roundtable with the Commissioner – Thoughts on effective engagement with the Competition Bureau
Join Commissioner of Competition John Pecman and senior officials from the Competition Bureau for an "insider" discussion of the most effective ways to make your case to the Competition Bureau.
Details
May 3, 2018 - 4:15 PM to 6:00 PM
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Ontario Court of Appeal Finds for Franchisors: Imperfect Disclosure is Not Equivalent to No Disclosure
On January 25, 2018 the Ontario Court of Appeal released its eagerly-anticipated decision in Raibex Canada Ltd. v ASWR Franchising Corp.
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Feb 1, 2018
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Seller Beware: The Dangers of Sales Language
Winning a bid dangerous when materials use exaggerated hyperbolic language and contain injudicious claims to performance suitability reliability and functionality of goods or services offered
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Jan 19, 2018
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Proposed Changes to the Competition Bureau’s Immunity Program Will Undermine Effective Cartel Enforcement in Canada – Comments of McMillan LLP on the Consultation Draft dated October 26, 2017
Several proposed revisions to Immunity Program under the Competition Act will have unintended but serious consequence of decreasing applications for immunity
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Jan 1, 2018
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Changes to Ontario’s Franchise Legislation: Bill 154 Receives Royal Assent
Changes to Ontario's Franchise Legislation: Bill 154 Receives Royal Assent
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Nov 29, 2017
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Changes to Ontario’s Franchise Legislation Are Underway
Changes to Ontario's Franchise Legislation: Bill 154 Receives Royal Assent
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Oct 3, 2017
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Ontario Government to Grow LCBO: Recreational Cannabis to be sold at Government Stores
Ontario Government to Grow LCBO: Recreational Cannabis to be sold at Government Stores
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Sep 8, 2017
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Release Me: Ontario Court of Appeal Clarifies When Franchisors Can Enforce Releases
Release Me: Ontario Court of Appeal Clarifies When Franchisors Can Enforce Releases
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Jul 11, 2017
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Ontario Court of Appeal to Franchisors: “Comply with your disclosure requirements, or else…”
Ontario Court of Appeal to Franchisors: "Comply with your disclosure requirements, or else..."
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Jun 9, 2017
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Changing Workplaces Review Final Report – Who Must Bargain with Franchise Employees?
Changing Workplaces Review Final Report – Who Must Bargain with Franchise Employees?
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May 29, 2017
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We’ve Overpaid, Now What? OLRB Confirms Employers’ Obligations in Addressing Pension Overpayments
We've Overpaid, Now What? OLRB Confirms Employers' Obligations in Addressing Pension Overpayments
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Mar 3, 2017
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Reminder: BC Franchise Legislation in Effect February 1st, 2017
Reminder: BC Franchise Legislation in Effect February 1st, 2017
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Jan 25, 2017
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CSA Provides Cybersecurity Risk Disclosure Guidance and Best Practices for Reporting Issuers
CSA Provides Cybersecurity Risk Disclosure Guidance and Best Practices for Reporting Issuers
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Jan 6, 2017
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Now in Force: Ontario’s Healthy Menu Choices Act, 2015
Now in Force: Ontario's Healthy Menu Choices Act, 2015
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Jan 4, 2017
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Making Better Food Choices: Health Canada’s Vision for Canadians
Making Better Food Choices: Health Canada's Vision for Canadians
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Dec 14, 2016
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Arbitration Clauses and Shareholder Disputes: Clarity from the Ontario Court of Appeal
Arbitration Clauses and Shareholder Disputes: Clarity from the Ontario Court of Appeal
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Oct 24, 2016
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Proposed Amendments Could Shake Up Vancouver’s Short-Term Rental Market
Proposed Amendments Could Shake Up Vancouver's Short-Term Rental Market
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Oct 17, 2016
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Franchise Legislation has Arrived in British Columbia
Franchise Legislation has Arrived in British Columbia
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Oct 6, 2016
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A Good Liability Exclusion Clause Can Protect You From A Bad Termination Of Contract
A Good Liability Exclusion Clause Can Protect You From A Bad Termination Of Contract
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Aug 24, 2016
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From Franchisor to Joint Employer – Update on Potentially Increasing Liabilities of Franchisors for the Employees of their Franchisees
From Franchisor to Joint Employer – Update on Potentially Increasing Liabilities of Franchisors for the Employees of their Franchisees
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Aug 9, 2016
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Big Changes Coming to Canadian Franchise Legislation
Big Changes Coming to Canadian Franchise Legislation
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Apr 25, 2016
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Franchise Legislation is Coming to British Columbia
The long-discussed Franchises Act of British Columbia (the "Franchises Act") is making quick strides to becoming a reality.
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Nov 13, 2015
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Arbitration Clauses and Shareholder Disputes: Are “Fussy Distinctions” Undermining Efficient Dispute Resolution?
Arbitration Clauses and Shareholder Disputes: Are "Fussy Distinctions" Undermining Efficient Dispute Resolution?
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Aug 27, 2015
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Restructuring a Franchise in Crisis: Court Dismisses Former Dealers’ Class Action Against General Motors
Restructuring a Franchise in Crisis: Court Dismisses Former Dealers Class Action Against General Motors
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Jul 23, 2015
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Use It Or…… Else: Patent Non-Use as Abuse of Dominant Market Position
Use It Or...... Else: Patent Non-Use as Abuse of Dominant Market Position
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May 13, 2014
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New abuse of dominance enforcement guidelines
New abuse of dominance enforcement guidelines
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Sep 25, 2012
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