Modernization of Alberta’s Trustee Act

A new Alberta provincial Trustee Act was introduced as Bill 12 on March 29, 2022 and was passed by the legislature on April 29, 2022. Once proclaimed into force, the new Trustee Act (the New Act) will provide a modern framework for trust law in Alberta. Overall, the new Trustee Act clarifies the responsibilities and powers of trustees and will provide greater protections for beneficiaries. Additionally, the new provisions would reduce administrative burdens imposed by trust law, as it lessens the need for court involvement in the functioning of trusts. Here is an overview of the major changes proposed by the new legislation.

Lessening Administrative Burdens

The New Act makes changes which reduce the need for court applications. For example, the New Act stipulates that if a trustee is temporarily unable to administer the trust due to absence or incapacity, they may appoint an alternate temporary trustee to exercise their powers and perform their duties. If the trustee is unable to appoint this temporary trustee, then a designated person may do so. If this situation were to arise under the existing Trustee Act (the Old Act), a replacement trustee could only be appointed by court application.

Similarly, a court application is no longer required under the New Actto vary the terms of the trust. In the proposed legislation, the default rule is still that a variation requires approval from the court; however if the trust instrument reserves the power to any person to vary or terminate the trust, that person will have the power to do so.

Greater responsibilities and powers for Trustees

Under the proposed legislation, there are greater responsibilities for the trustees, and correspondingly, greater protections for beneficiaries. The New Act imposes a duty of care on trustees, a duty to report financial information to beneficiaries, a standard of care when investing, and a duty to act impartially and prudently between all beneficiaries and in the administration of the trust. To further address the needs of beneficiaries, the New Act provides a process to permit the removal of an unfit trustee and to allow a trustee to resign.

In addition to expanding a trustee’s responsibilities, trustees’ powers have also grown. Under the NewAct, trustees have enhanced administrative powers to buy and sell trust property, including the power to sell and lease real property. Further, a trustee is granted the power to borrow trust property or to grant a security interest in trust property. A further example of a trustee’s expanded power is that they may utilize trust income or capital to provide residence to a beneficiary.

Other notable changes

The Old Act mostly adresses testamentary trusts (trusts established by way of a will); however, the New Act also recognizes various other forms of modern trusts, including non-charitable purpose trusts.

The New Act abolishes some of the previous common law trust law rules. For example, section 37abolishes the rule that required overseeing a trustee’s decisions on an investment-by-investment basis, as well as the rule that damages for breach of trust are prohibited from being offset by gains. Furthermore, the New Act abolishes the common law rules of apportionment.

The new Trustee Act presents a complete overhaul of the existing legislation in Alberta. These changes will likely produce a more efficient trust law system, making it easier to create and manage trusts. If you have any questions about the New Act, or anything to do with trusts or estates, please feel free to contact one of our lawyers.

©2022 McCuaig Desrochers LLP. All rights reserved. The content of this newsletter is intended to provide general information on McCuaig Desrochers LLP, our lawyers, and recent developments in the law and is not to be relied on as legal advice or opinion.

This article was written by Monika Sharma and Olivia Wang.

New Canadian Immigration Streams for Ukrainians

As of February 24, 2022, Russia has launched a military attack against Ukraine and its people.  The Canadian government has implemented new measures to help the people of Ukraine affected by this attack.

The Canadian government has expressed a commitment to prioritizing applications from people living in Ukraine for Canadian permanent residence, proof of citizenship, temporary residence and citizenship grant for adoption. Additionally, they are attempting to urgently process passports and travel documents for Canadians living in Ukraine, to allow them and their families to return to Canada.

Information for individuals attempting to flee Ukraine to come to Canada

The fastest method for individuals fleeing Ukraine to come to Canada is through the Canada-Ukraine Authorization for Emergency Travel. This pathway will eliminate many of the normal visa requirements and there will be no limit to the number of Ukrainians who may apply. As of March 3, 2022, the Government of Canada stated that this pathway will be open for applications in 2 weeks, and in the interim, Ukrainians are encouraged to apply through all other programs and their applications will be prioritized.

In the interim, Ukrainians may apply for an urgent visitor visa to Canada, on a temporary basis, through the IRCC online portal. Note that this application may be difficult to complete as all visa application centres in Ukraine are currently closed. Please contact us directly if you have questions on how to fill out this visa applications amidst the current constraints.  If you cannot obtain valid biometrics or obtain a visa stamp for your passport, (both steps are required to complete the application), you are still encouraged to apply. The Canadian government may decide to make exemptions for these requirements, but it has not yet been confirmed.

The Canadian government has implemented a few amendments to immigration procedures to help facilitate the process of leaving Ukraine for Canada. For example, the Minister of Immigration, Refugees and Citizenship has issued a class-based national interest exemption, allowing those who are unvaccinated or partially vaccinated for COVID-19 to enter Canada from Ukraine. These individuals will be subject to all other public health requirements. Additionally, the Canadian government has announced that they will waive fees, retroactive to February 22, 2022, for certain travel and immigration documents.

The Canadian government is also in the process of developing a special family reunification sponsorship pathway for permanent residence. This will be available for immediate and extended family members of Canadian citizens and permanent residents currently residing in Ukraine, who want to make a permanent move to Canada. Details of this program are yet to be announced.

For Ukranian foreign nationals currently residing in Canada

The Government of Canada is trying to ensure that Ukrainians who are currently working, studying and living in Canada, can remain here. The IRCC will issue open work permits for Ukrainian visitors, workers and students who are currently in Canada and cannot go home safely.

The Canadian Border Services Agency has an administrative deferral of removals in place for Ukraine. This means that a removal order, which would normally require a person to leave Canada immediately, is not currently being enforced. This may not apply in all scenarios, if you have a removal order for Ukraine, you should get legal advice as to its immediate effect.

More information

If you would like to get more information on this topic, the IRCC has established a service line specifically dedicated to immigration inquiries for individuals living in Ukraine and Ukrainians living in Canada, at 613-321-4243. Individuals can also use the IRCC crisis web form with the keyword “Ukraine2022”, and their inquiry will be prioritized.

This article was written by Monika Sharma, Student-At-Law, articling at McCuaig Desrochers LLP

©2022 McCuaig Desrochers LLP. All rights reserved. The content of this newsletter is intended to provide general information on McCuaig Desrochers LLP, our lawyers, and recent developments in the law and is not to be relied on as legal advice or opinion.

Corporate Remedies: Reasonable Expectations of Shareholders

The remedies available to stakeholders in corporate disputes for oppression are some of the most flexible remedies available at law.  Under Alberta’s Business Corporations Act (the “ABCA”), the Court may rectify any act or omission of a corporation, its affiliates, or its directors that results in conduct that is oppressive, or conduct that is unfairly prejudicial to, or that unfairly disregards the interests of, any security holder, creditor, director or officer.  The powers of the Court in these circumstances include, but are not limited to, replacing directors, ordering the purchase of shares, compensation, or liquidation/dissolution of the corporation.

To access this broad remedy, the Supreme Court of Canada (“SCC”) ruled in the seminal 2008 decision of BCE Inc v 1976 Debentureholders (“BCE”), and restated more recently in the 2017 Wilson v Alharayeri decision,that in order to be entitled to remedies from oppression, the complainant (i.e. the party bringing the action against a corporation) must establish that: (1) the complainant had reasonable expectations regarding the complainant’s treatment by the corporation or its representatives; and (2) that those reasonable expectations were violated by conduct that was oppressive or unfairly prejudicial or unfairly disregarded the complainant’s interests.

The reasonable expectations of the complainant are foundational to a claim for relief from oppression.  Reasonable expectations will always be fact-specific, contextual (for example, expectations may differ for a shareholder of a profitable corporation, as opposed to one on the “eve of bankruptcy”) and must be objectively reasonable.  The Courts have also held that in determining whether oppression has occurred, one should look beyond strict legal rights and instead to the relationship between the parties; whether an expectation is reasonable ought to be assessed on all the words and deeds of the parties and “not necessarily only those confined to paper, and not necessarily only those made when the relationship first arose.” (Westfair Foods Ltd v Watt 1991 ABCA).

However, the SCC ruled in BCE that:

The actual expectation of a particular [complainant] is not conclusive.  In the context of whether it would be “just and equitable” to grant a remedy, the question is whether the expectation is reasonable having regard to the facts of the specific case, the relationships at issue, and the entire context, including the fact that there may be conflicting claims and expectations.… Fair treatment – the central theme running through the oppression jurisprudence – is most fundamentally what stakeholders are entitled to “reasonably expect.”

(BCE, paragraphs 62-64).

In other words, while one must consider all the facts and context, the actual expectation is not conclusive, the central issue is whether the expectation was “reasonable”—after all, fairness is a two-way street.

Further, not all shareholders are equal.  When considering the reasonable expectations of a minority shareholder, for example, the Courts in Ontario and Alberta have ruled that minority voting shareholders’ reasonable expectations may be far more limited than a majority voting shareholder with the votes to control the Board of Directors, and therefore the corporation itself.  In deciding whether an expectation is reasonable, the Courts have ruled that it is the complainant’s job to convince the Court that their expectations were reasonable, and often turn to this non-exhaustive list of factors when assessing the claims of a complainant:

  • General commercial practice;
  • Nature of the corporation;
  • Relationship between the parties;
  • Past practices;
  • Steps the claimant could have taken to protect itself;
  • Representations and agreements; and
  • Fair resolution of conflicting interests between corporate stakeholders.

The Courts in Alberta have ruled that there are limits to oppression claims; not every expectation, even if reasonably held, will give rise to a remedy in a claim of oppression because there must be some wrongful conduct, causation and compensable injury in the claim.  If you have questions or concerns about your rights, obligations, or expectations as a shareholder, director, or officer in a corporation, and whether you have a claim for a remedy from oppression, please contact McCuaig Desrochers LLP’s Business Law Practice Group for guidance and assistance.

This article was written by Jeff Arsenault, a lawyer at McCuaig Desrochers LLP, and Olivia Wang, a student-at-law at McCuaig Desrochers LLP.

©2022 McCuaig Desrochers LLP. All rights reserved. The content of this newsletter is intended to provide general information on McCuaig Desrochers LLP, our lawyers, and recent developments in the law and is not to be relied on as legal advice or opinion.

McCuaig Desrochers LLP Vaccination Policy

McCuaig Desrochers LLP’s priority is the health and safety of our clients and staff. With a safe workplace, we can ensure that our lawyers and staff are able to continue providing the highest level of legal service.

In keeping with our commitment to safety, we have implemented a mandatory COVID-19 vaccination policy at our office premises. Our policy applies to lawyers, staff, and clients alike.

We continue to offer meetings by way of virtual / videoconference technology. 

Should an in person meeting be needed, any individual attending at our offices will be required to demonstrate proof of full COVID-19 vaccination in addition to wearing a mask at all times.

Individuals who are unable to meet these requirements will be accommodated via virtual / videoconference technology.

Thank you in advance for your cooperation. Please do not hesitate to contact us if you have any questions about our vaccination policy.

Second Chance Comes for Would-be Sponsors of Parents & Grandparents

On September 23, 2021, Immigration, Refugees and Citizen Canada began the work of sending out invitations for Canadian citizens and permanent residents to sponsor their parents or grandparents for Canadian permanent resident status.

By October 4, the round of invitation ended with enough invitations sent out to meet the department’s goal of receiving 30,000 additional complete parent/grandparent sponsorship applications, the highest number of applications accepted in a year since 2014 – when limits were first applied to the intake of parent/grandparent sponsorship applications.

The acceptance of 30,000 new applications in 2021 was part of a plan announced by the department back in October 2020 when it announced the details of last year’s Parent-Grandparent Program. In their news release from that time, the department announced that “a maximum of 10,000 applications will be accepted for processing as part of the 2020 PGP intake. In 2021, IRCC will open a new intake of interest to sponsor forms to accept a total of 30,000 new applications”.

While the number of applications being accepted this year was expected, this year’s intake process (or lack thereof) was not. No new intake of interest to sponsor forms was conducted in 2021. Instead, the invitations sent over the past couple of weeks were sent to potential sponsors who submitted interest to sponsor forms in the fall of 2020. 

Individuals who completed interest to sponsor forms back in the fall of 2020 were therefore handed an unexpected second chance, with an additional 30,000 applications now being accepted from that existing pool, their chances of success increased far beyond what they could have previously anticipated.

Sponsors selected in this round of invitation will continue to have their income assessed for tax years 2020, 2019 and 2018 but will benefit from the implementation of a more facilitative threshold for their 2020 income in recognition the financial difficulty that some sponsors might have suffered during the pandemic.  The income requirement for the 2020 tax year will be reduced so that it is just the Minimum Necessary Income.   Sponsors will still have to meet the normal income requirements (Minimum Necessary Income + 30%) for previous tax years.

Invitations to sponsor were sent out via email to the email account that potential sponsors used when they submitted their interest to sponsor forms in 2020.  Individuals should make sure to check their junk mail and spam folders to make sure that they have not missed any emails from the department.  Individuals can also use the confirmation number that they received after submitting their 2020 interest to sponsor forms to check whether they have been selected using the department’s online tool found at https://www.canada.ca/en/immigration-refugees-citizenship/services/immigrate-canada/family-sponsorship/sponsor-parents-grandparents/selected.html

Invited sponsors only have 60 days to submit their complete sponsorship/permanent residence applications using the department’s newly introduced online Permanent Residence Portal, so care must be used to make sure that applications are complete and submitted on time.

We know that there are many individuals who have been waiting for the opportunity to be reunited with their parents in Canada and we hope that this new round of invitation has benefited many of them.

This article first appeared in the October 2021 edition of the Millwoods Mosaic – the Multicultural Voice of Southeast Edmonton (www.mwmosaic.ca) and is intended to provide general information only and should not to be relied on as legal advice or opinion.  We invite you to contact one of the members of our experienced immigration group for assistance.

Welcome Olivia and Monika

McCuaig Desrochers LLP is pleased to welcome both Olivia Wang and Monika Sharma as articling students.

Prior to attending law school, Olivia received her Bachelor of Commerce with Distinction in finance from the University of Alberta School of Business in 2018. She obtained her Juris Doctor with Distinction from the University of Alberta Faculty of Law in 2021. Olivia volunteered with the Edmonton Community Legal Centre, Pro Bono Students Canada, and Student Legal Services during law school.

Monika received her Juris Doctor from the University of Alberta in 2021. During law school, Monika volunteered with the Mental Health and Wellness Committee, the Edmonton Community Legal Centre, and the Faculty of Law’s Recruitment Committee. She also performed legal research for the Alberta Land Institute.

Prior to attending law school, Monika received her Bachelor of Commerce with Distinction from the University of Alberta in 2018. During her undergraduate degree, she was involved with many student groups and spent her summers working in a policy department at the Government of Alberta.

Temporary resident to permanent resident pathways: updates and new work permit availability

As we’ve previously written about, earlier this year Canada’s Minister of Citizenship and Immigration, Marco Mendicino, announced four new temporary public policies that provide pathways to permanent residents for four groups of temporary residents currently working in Canada.  The new pathways were introduced as a means of maintaining immigration levels in the face of COVID-19 travel restrictions, making it easier for educated and experienced workers currently inside Canada to obtain permanent resident status.

These temporary pathways opened on May 6, 2021, and were to remain open until November 5, 2021, or until the intake cap for each stream had been reached, whichever came first.

To recap, the public policies targeted the following categories of temporary residents: individuals working outside of Quebec with recent Canadian work experience in certain healthcare related and selected non-healthcare related essential occupations (at least one year); individuals outside of Quebec, working and having a recent credential from a Canadian post-secondary institution (January 2017 or later); and, individuals who fall into either of the previous categories but who are also proficient in French.

While the categories for French-speakers were not subject to any intake caps, the other categories would only be able to accept a certain number of applications. The category for recent international graduates from a Canadian institution was capped at 40,000 applications, the category for essential, non-healthcare workers in Canada was capped at 30,000 applications, and the category for essential health-care workers in Canada was capped at 20,000 applications.

As was expected, these new temporary pathways have proven to be quite popular. The category for recent international graduates was in the highest demand, reaching its capacity of 40,000 applications after only a few days.  The category for essential, non-healthcare workers reached the maximum number of applications (30,000) and was closed on July 16, 2021.

As of August 15, 2021, there were still less than 4,000 of a maximum 20,000 applications received in the general (non-French speaking) category for essential, healthcare workers in Canada.  Occupations eligible under the healthcare category extend far beyond the doctors and nurses that might first come to mind. There is a long list of healthcare occupations that are eligible under this category. In particular, the healthcare worker category includes some occupations that are classified by Canada’s National Occupation Classification system as being of a lower “skill level”, such as NOC 4412 – Home support workers, housekeepers and related occupations, NOC 3413 – Nurse aides, orderlies and patient service associates, and NOC 3414 – Other assisting occupations in support of health services; and individuals working in these types of occupations may want to take a closer look at this pathway as other permanent residence programs often require Canadian work experience that falls under a higher NOC “skill level”.

French speakers will have until November 5, 2021, to submit their applications under any of the streams as they are not subject to application caps.

When the new Temporary Resident to Permanent Resident Pathways were initially announced, there were no provisions that assisted applicants to extend their work permits while they waited for their permanent residence applications to be processed. Immigration lawyers and others quickly flagged this as a significant issue and communicated this to government officials.  Since eligibility for permanent residence under the pathways requires that an individual maintain their valid temporary resident status until a decision is made on their permanent residence application, individuals whose work permits expired during processing would not only lose their ability to work in Canada but would also be at risk of having their permanent residence applications refused.

This issue was remedied when on July 15, Minister Mendicino announced that beginning on July 26, 2021, individuals who applied under the new pathways would be eligible for an open work permit while they waited for their permanent residence application to be processed.

To be eligible for this one-time open work permit, an applicant must have submitted an application under one of the above-mentioned permanent residence pathway streams and meet the language requirements of the stream they applied under; they must also have been working in Canada with proper authorization at the time their permanent residence application was submitted.  At the time that they make their application for the open work permit, applicants must be in Canada with valid temporary resident status and have a work permit that is set to expire in the next four months.

The introduction of this new open work permit was much welcomed and was reflective of a department that under this immigration minister has shown a notable willingness to adjust its programs and policies both in response to the pandemic and to stakeholder feedback.

This article first appeared in the August 2021 edition of the Millwoods Mosaic – the Multicultural Voice of Southeast Edmonton (www.mwmosaic.ca) and is intended to provide general information only and should not to be relied on as legal advice or opinion.  We invite you to contact one of the members of our experienced immigration group for assistance.

This article was written by Nathan Po, a lawyer at McCuaig Desrochers LLP.

©2021 McCuaig Desrochers LLP. All rights reserved. The content of this newsletter is intended to provide general information on McCuaig Desrochers LLP, our lawyers, and recent developments in the law and is not to be relied on as legal advice or opinion.