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Time Theft, Critical Minerals and Artificial Intelligence: Timely Topics – March 2023

Timely Topics with McCarthy Tétrault curates the latest market trends on a monthly basis to help you stay informed of developments that can affect your business. This content is current as of March 1st , but please connect with us if you have any questions on any of the topics below.

Here are this month’s trending topics:

1) Time Tracking Software to Combat Time Theft? Considerations for Employers

As the effects of the COVID-19 Pandemic become further entrenched in our economic reality, Canadian employers and employees continue to take steps to adjust to changing workplaces. A recent decision from the BC Civil Resolution Tribunal (the “Tribunal”), outlined in our recent blog post, provides a cautionary tale for employees in the modern workplace, including those working remotely.

In the recent decision, the Tribunal assessed an alleged case of time theft, ultimately ruling in favour of the employer. The Tribunal held that time theft in the employment context is a “very serious form of misconduct” and is sufficient to warrant termination for just cause. Additionally, the Tribunal awarded the employer damages for theft of time.

While this decision is welcome by many employers, employers considering the installation of software to track employee activity should be cognizant of the privacy-related and other legal risks, such as allegations of breach of contract or constructive dismissal, and are encouraged to obtain legal advice before acting.

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For further information regarding the evolving employment landscape surrounding time-theft and related issues, please contact a member of our Labour & Employment Group.

2) AI: A Top Concern for Legal Departments

The recent release of artificial intelligence (AI) bot ChatGPT has put a spotlight on AI since January, especially following the $10 billion investment in ChatGPT’s owner. In addition to the exploration of challenges and opportunities for consumers, businesses and policymakers alike, AI has also become a hotspot for investments.

As tech departments across industries continue to incorporate more and more AI into their business operations, AI remains a top concern for legal departments.

Charles Morgan, national co-leader of McCarthy Tétrault’s Cyber/Data Group explains “with the arrival of generative AI, the disruptive potential of artificial intelligence is taking shape. This is leading not only to a significant uptick in market consolidation, but also to a notable transition from responsible AI “policy” to regulation, both in Europe and Canada.  Our clients are looking to us to provide guidance not only on their compliance and governance obligations, but also as regards to managing litigation risks and increasingly thorny risks in M&A transactions.”

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If you’d like to discuss your organization’s AI plans and concerns, please contact a member of our market-leading Cyber/Data Group.

3) Canada’s Critical Minerals Update: New Regulations for Alberta

Canada continues to take significant steps to capitalize on increased global demand for critical minerals. Late last year, the Federal Government released its highly-anticipated Canadian Critical Minerals Strategy (the Canadian Strategy). The Canadian Strategy ties together several of the federal initiatives that have come out over the last few years, including the Critical Mineral Exploration Tax Credit and the Strategic Innovation Fund to help encourage exploration for critical minerals and develop projects.

Provincial jurisdictions are additionally embracing opportunities in the critical minerals sector. On the heels of the Canadian Strategy, Alberta announced new and amended regulations “to strengthen Alberta’s mineral regulatory framework” and help diversify Alberta’s vital energy industry. These include the Metallic and Industrial Minerals Tenure Regulation (Tenure Regulation). These new regulations follow the prior introduction of the Mineral Resource Development Act (MRD Act) and the corresponding strategy and action plan for developing Alberta’s minerals and mineral products industry introduced in 2021, as discussed in our recent blog post. The Act is meant to provide greater regulatory certainty and predictability for investors, developers and other industry stakeholders.

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For further information on what these developments mean for your business, please contact a member of our Global Metal & Mining Group.

4) New Prohibition on Non-Canadians Purchasing Residential Properties: What it Means for Businesses

Earlier this year, the two-year Prohibition on the Purchase of Residential Property by Non-Canadians Act came into force along with regulations. While the focus of the press has been on its impact to citizens and residential transactions, there are a number of potential unintended consequences for commercial transactions.

Sarit Pandya, Partner in McCarthy Tétrault’s Real Property & Planning Group explains: “The Regulations expand the scope of the Act significantly beyond what was initially expected (e.g. residential houses or condo units) and into the prohibition of the purchase by “non-Canadians” of land zoned for residential or mixed use purposes. Market participants will need to be cognizant of the test for “control”, which determines “non-Canadian” status. The 3% threshold in that test is significantly less than might have been expected and will capture a significant number of players in the commercial real estate space. Further details regarding key risk areas and potential unexpected commercial impacts can be found in our recent blog posts.

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Given the significant uncertainty about the application of the Act and Regulations, it is important to understand the new legislation and how it may impact commercial transactions.

This newsletter is designed to provide general information only. This newsletter does not provide legal advice on specific issues. You are encouraged to consult with legal counsel should you require assistance in addressing a particular issue or concern.

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