Canada: Doing Business In Canada – October 2016

Last Updated: October 21 2016
Article by Steven Zakem

MESSAGE FROM THE MANAGING PARTNER OF AIRD & BERLIS LLP

One of the great pleasures of being the managing partner of Aird & Berlis LLP is the ability to send our bi-annual message to our friends, supporters, clients and sources of referral around the world. I continue to dedicate myself and our firm to increasing the firm's role in the provision of Canadian legal services. We are successful in working as part of a team and one of our objectives is to be your and your client's gateway to Canada.

The past six months has seen a number of successful actions undertaken by our firm to expand its expertise. In particular, we have expanded our capability in connection with our combined multi-disciplinary intellectual property group. We now have an intellectual property group which can assist clients in the protection and acquisition of intellectual property, domestically, and with the very able assistance of non-Canadian advisors, throughout the world. We are excited that we were able to enhance our capability in this area by having a large group of talented professionals join our firm.

Also, in September 2016 I attended the International Bar Association 2016 annual conference in Washington, D.C. I did not have the opportunity to meet everyone but I met a number of the firm's friends and supporters. The experience impressed upon me the depth of our international relationships and the closeness that our lawyers have with many people around the globe. I wish to stress again our great appreciation for our relationships with all of the readers of this message and to say thank you for your support.

We continue to be a Canadian business law firm. In our view, Canada's economy is centered on mid–market businesses which sometimes reach beyond the Canadian borders but more frequently have non-Canadian stakeholders involved in the Canadian business arena. I am very proud of the many areas of expertise which we have, such as corporate/ commercial, corporate finance, commercial litigation, financial services, land use planning, mergers and acquisitions, mines and minerals, real estate and taxation. We also have numerous subspecialties of which we are very proud, such as alternative dispute resolution, employment, energy, environment, gaming, infrastructure, intellectual property, privacy, private equity, technology and transportation. Our commitment to our clients is simple – we shall deliver high-quality Canadian legal services in a timely manner and in a way which provides value to our clients. Members of our firm in all areas of our practice are always available to provide timely, high-quality Canadian legal advice.

The firm as a whole is very gratified that many of our professionals have earned external recognition. The recognition is from numerous sources including Chambers Global, Chambers Canada, Who's Who Legal, Legal 500, Martindale & Hubbell Law Directory, Martindale-Hubbell Bar Register of Preeminent Lawyers, the Lexpert/American Lawyer Guide to the Leading 500 Lawyers in Canada and The Canadian Legal Lexpert Directory, to name just a few. Also, the number of members of our firm who have active leadership roles with the International Bar Association, the American Bar Association, the Canadian Bar Association, the Canadian Tax Foundation, the International Fiscal Association (international branch) and the International Fiscal Association (Canadian branch) is increasing. Our updated Doing Business in Canada brochure (dated September 2016), which is attached, is designed to provide you with a brief education about entering the Canadian business community. If you have any questions, please do not hesitate to contact me and I shall arrange contact with the appropriate person within our firm on a timely basis.

INTRODUCTION

Canada welcomes international participants in its economy and business community. A focus of Aird & Berlis LLP is to represent international clients investing in Canada and to assist domestic clients in their business and financial dealings with international participants. At Aird & Berlis LLP, we have extensive experience and expertise in acting for international and Canadian clients. We are very proud of the international recognition given to various members of our firm by authoritative guides including: The International Who's Who of Business Lawyers; Chambers Canada; Chambers Global: The World's Leading Lawyers in Business; The Legal 500 Canada; Martindale-Hubbell Bar Register of Preeminent Lawyers; Legal Media Group Guides to the World's Leading Lawyers; International Tax Review – North America Guide; The Canadian Legal Lexpert Directory; The Lexpert/American Lawyer Guide to the Leading 500 Lawyers in Canada – "40 Repeatedly Recommended Canadian Corporate Mid-Market Lawyers," The Lexpert Guide to the Leading US/Canada Cross-border Corporate Lawyers in Canada; and The Best Lawyers in Canada.

We are the Canadian gateway for our international clients. We represent a broad range of business entities and individuals. We act for international entities doing business in Canada and Canadian entities doing business abroad. We are dedicated to providing counsel to our clients with respect to their international business activities with a particular focus on taxation, corporate finance (including mergers and acquisitions), securities, financing and real estate investments. We make your business our business and we are ready to assist your business at any time.

Our dedication to the international business arena has been exemplified by our commitment to our international practice. Our lawyers' commitment is evidenced by our active participation in various international associations where we learn from our colleagues around the world including: AIJA (International Association of Young Lawyers); American Bankruptcy Institute; American Bar Association; American Intellectual Property Law Association; American Real Estate Society, Association of Commercial Finance Attorneys; Inter-American Bar Association; International Association of Restructuring, Insolvency, and Bankruptcy Practitioners; International Bar Association; International Council of Shopping Centres; International Fiscal Association; International Municipal Lawyers Association; International Project Finance Association; International Swaps and Derivatives Association; International Trademark Association; and International Women's Forum; among many others.

DISCLAIMER

This publication is a general overview of Canadian national and provincial law that has been prepared by Aird & Berlis LLP. It is intended for those planning to start, acquire or invest in a business in Canada, and who require more knowledge about the laws and regulations that affect the conduct of business in Canada and, in particular, in the province of Ontario. This publication has been prepared by a collaboration of the practice groups at Aird & Berlis LLP and is current as of September 2016, or other date as indicated in the separate chapters.

Please note that the contents of this publication should be regarded as a summary and should not be considered as legal advice to the reader. We therefore recommend that you seek the advice of our lawyers on any specific legal issue.

Constitution, Government and Legal System

Canada was created in 1867 and currently consists of ten provinces and three territories. Canada is a parliamentary democracy whose form of government is a constitutional monarchy with Queen Elizabeth II as its head of state. The Governor General, to whom The Queen has delegated all of her powers over Canada (except the power to appoint or dismiss the Governor General), is obliged to follow the wishes of Canada's elected representatives. As The Queen's representative in Canada, the Governor General's role is largely ceremonial. Canada's two official languages are English and French and both have equal status in federal courts, Parliament and in all federal institutions.

GOVERNMENT AND POLITICS

Canada is a federal state in which legislative power is constitutionally divided between the federal government and the provincial governments. A third level of government, municipal or local government, has only the powers granted to it by the applicable provincial government. The federal and the provincial governments have exclusive jurisdiction and legislative powers over specified matters. The federal government also has "residual" jurisdiction over matters not specifically assigned to the provinces. In addition, while Canada's three territories (Yukon, Northwest Territories and Nunavut) have legislatures and govern themselves on local matters, their constitutional responsibilities are fewer than those of the provinces.

The federal government has control over matters of national interest, such as trade and commerce, transportation and communication, banking, currency, customs and excise, external relations, defence and criminal law. The provincial governments have power over matters of a local nature, such as property and civil rights within the province, municipal institutions, education, health and welfare, and the administration of justice. For more than three decades, Canada has had the Canadian Charter of Rights and Freedoms, which imposes limitations on government powers in order to protect civil liberties.

Canada has a parliamentary government. The legislative power of the federal government is vested in the Parliament of Canada, which consists of the Crown, an upper house, known as the Senate, and a lower house, known as the House of Commons. The members of the House of Commons (known as Members of Parliament, or MPs) are chosen in a general election held on the third Monday of October in the fourth calendar year following the last general election, though there is no prohibition on a general election being called on another date, when, on the advice of the Prime Minister, the Governor General dissolves Parliament. The federal government is headed by the Prime Minister, who is normally the leader of the political party that has the most members in the House of Commons. The members of the Senate are currently appointed by the Governor General on the recommendation of the Prime Minister, and appointments are distributed on a regional basis.

Canada's provinces have systems of government which parallel that of the federal government in several ways. A premier leads each provincial government by virtue of being the leader of the political party with the most support in the provincial legislature, and forms a cabinet from the elected members of the governing party. As the federal and the provincial governments are elected separately, there may be different political parties in power at each level. There are no provincial bodies equivalent to the Senate.

LEGAL SYSTEM

There are two legal systems in Canada: British-based common law and European-style civil law. Civil law predominately applies in the province of Quebec, and common law applies in all other provinces and territories. Both legal systems are subject to the Constitution of Canada.

The Supreme Court of Canada is Canada's highest court. It is the final court of appeal having jurisdiction to hear appeals from the courts of appeal of each province, as well as from the Federal Court of Appeal, which has jurisdiction over a relatively small range of specialized areas under the jurisdiction of the federal government, such as intellectual property. The Supreme Court of Canada consists of nine judges, three of whom must be from the province of Quebec. The judges of the Supreme Court, the Federal Court and certain provincial courts (so-called "Superior Courts") are appointed by the Governor General on the advice of the Prime Minister and cabinet.

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