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Contracting Out: Court finds contract applies over Limitations Act
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Shara N. Roy | March 27, 2017Shara N. Roy | March 27, 2017
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Lenczner Slaght Collaborates with Legal Aid Ontario View article
July 19, 2022July 19, 2022
On the Docket
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Over the last several years there has been a trend towards increased adoption of summary proceedings for resolving patent cases in Canada. In particular, we have previously commented on decisions of the Federal Court (e.g., Kobold partial SJ motion) and Federal Court of Appeal (e.g., Canmar Appeal) that signalled a willingness to move away from the historic reluctance of those courts to approve summary judgment for patent infringement actions. We had also noted that summary proceedings were a trend to watch this year.
September 8, 2022Here’s a look at the leave application decisions that the Supreme Court of Canada will be releasing on September 1, 2022.
August 30, 2022It has been just under a year since the new dismissal for delay provision in s. 29.1 of the Class Proceedings Act started resulting in dismissals for delay. In essentially all of the decisions rendered to date, judges have strictly construed those provisions to require the dismissal of matters where the statutory criteria for avoiding a dismissal are not present. The recent decision of the Ontario Superior Court in Lubus v Wayland Group Corp is now an outlier that takes a different approach.
August 24, 2022The Patented Medicines (Notice of Compliance) Regulations (PMNOC Regulations ) is a complete code. In Apotex Inc v Eli Lilly Canada Inc, the Ontario Court of Appeal weighs in on the drawn-out battle between patent owners and generics on whether monetary relief is available outside the parameters of the PMNOC regime. It is not.
August 19, 2022In FibroGen, Inc v Akebia Therapeutics, Inc, the Federal Court of Appeal set aside an order requiring a party to make certain fact witness statements from a discontinued action public, restoring the proper balance and safeguarding the confidentiality of documents that had been designated as confidential or highly confidential information.
August 10, 2022The Court of Appeal for Ontario has once again reaffirmed the deference afforded to first instance judges in cases of contractual interpretation that rely heavily on the factual matrix—even where the underlying facts and history are unique.
August 2, 2022Employment law misclassification class actions are becoming increasingly common. In those cases, the plaintiff says that employees have been misclassified by their employer in such a way as to render them ineligible for certain benefits under applicable provincial employment standards legislation which the employee claims that they should have been eligible for. The two most common categories of alleged misclassification are employees being allegedly misclassified as independent contractors, and ordinary employees being misclassified as managers. While some misclassification cases have been certified, courts have refused to certify many others due to a lack of sufficient commonality. The recent decision of the Ontario Superior Court of Justice in Le Feuvre v Enterprise Rent-A-Car Canada Company is an example of a case that falls into the latter category and was not certified.
July 26, 2022Last week, the Supreme Court of Canada released its decision in SOCAN and Music Publishers of Canada v ESA, the latest instalment in a decade long battle about whether and how copyright owners should be compensated for making works available online (even if those works are not subsequently downloaded or streamed by a user).
July 21, 2022The Supreme Court of Canada’s decision today in Law Society of Saskatchewan v Abrametz is a significant one for all lawyers practicing before administrative tribunals. In brief, the decision confirms that the three-part Blencoe test for delay and abuse of process in administrative proceedings continues in force. To establish that a delay rises to the level of abuse of process, a party must establish...
July 8, 2022Associate Chief Justice Gagné’s decision in Benjamin Moore & Co v Attorney General of Canada, 2022 FC 923 (“Benjamin Moore”) marks the second time that the Federal Court has had to weigh in to tell the Commissioner that it was not applying the correct test for patentability of computer-implemented inventions. Unlike past decisions (discussed below), the Court in Benjamin Moore, provided instruction on how the Commissioner ought to assess patentability of such inventions. As a top line, these instructions appear to level the playing field – reducing the artificially high standard that computer-implemented inventions face during patent examination.
June 28, 2022-
Earlier this year, we launched our Supreme Court of Canada Decisions Project. Our dataset contains information about every Supreme Court of Canada decision going back to the mid-1950s.
June 28, 2022Summary adjudication can be enticing. In the right circumstances, it saves the parties time and money. Unsurprisingly, there is a growing trend in Canadian intellectual property litigation to use summary adjudication that we have been actively monitoring (see, e.g., our comments here, here, here, here, here and here).
June 27, 2022Bill C-27 and the Proposed Artificial Intelligence and Data Act: Oversight of AI in Canada is ComingJordana Sanft & Jenene RobertsOn June 16, 2022, Canada’s Minister of Innovation, Science and Industry introduced Bill C-27, titled “An Act to enact the Consumer Privacy Protection Act, the Personal Information and Data Protection Tribunal Act and the Artificial Intelligence and Data Act and to make consequential and related amendments to other Acts” (short title, the Digital Charter Implementation Act, 2022), in the House of Commons.
June 21, 2022Historically, many class actions practitioners considered certification the primary fight in a case. It was common that cases would settle not long after certification, so the whole ballgame was perceived to be in the certification motion. Yet with the courts consistently reaffirming the low bar for certification, we are seeing a greater number of class actions determined on their merits after certification. And as the recent case of Rebuck v Ford Motor Company shows, success on certification is by no means a guarantee of success on the merits.
June 17, 2022In February 2022, we launched our Supreme Court of Canada Decisions Project. The core of that project is a publicly available database that contains detailed information about every Supreme Court of Canada decision going back to the mid-1950s. Anyone interested in analyzing the data for themselves can download a copy of our database and the coding manual at supremecourtdatabase.com.
April 25, 2022Iron Man’s suit is at the centre of an intergalactic copyright infringement battle brought by Horizon Comics Productions Inc. (“Horizon”) against Marvel Entertainment, LLC et al. (“Marvel”). The alleged infringement is largely directed to Horizon’s Canadian created Radix comic book series (the “Works”) and Marvel’s Iron Man suit from the movie Iron Man 3.
April 19, 2022The Supreme Court of Canada recently granted leave to appeal in the decision of Murray-Hall c Procureure generale du Quebec, opening the door for the Court to consider the constitutionality of provincial legislation purportedly aimed at regulating cannabis production and possession in the province of Quebec. The case is significant because it focuses on the validity of provincial legislation which directly contradicts federal legislation on the same issue.
March 29, 2022In our blog 2021 Year in Review & 2022 Trends to Watch for Pharmaceutical Patents, we identified Alexion Pharmaceuticals Inc v Canada (Attorney General) as an important case to watch in 2022 as leave to the Supreme Court was filed.
March 28, 2022For the second time in less than a year, Justice St. Louis of the Federal Court has set aside the issuance of a Notice of Compliance (“NOC”) to an innovator drug company and remitted the matter to the Minister of Health (“Minister”) for what will be a third determination in Catalyst Pharmaceuticals, Inc v Médunik Canada (“Catalyst 2022”).
March 25, 2022Kaitlin Soye & Jacqueline ChanFollowing a ‘with prejudice’ dismissal of a patent infringement action in the US, the defendant sought summary judgment in the parallel Canadian proceeding, Google LLC v Sonos, Inc. The defendant argued that: (1) there was no genuine issue for trial on infringement considering admissions by the plaintiff in the US; or (2) summary judgment was warranted under the doctrines of res judicata or abuse of process. This case is interesting because of the substantial similarities between the patents at issue in the US and Canadian actions, including identical claims. Notwithstanding these similarities, the motion for summary judgment failed. Among other reasons, the Court concluded that the plaintiff had not made any factual admissions in the US proceeding, and even if it had, any such factual admissions would not necessarily be determinative of Canadian infringement because of legal differences in claim construction between the US and Canada.
March 11, 2022-
The proposed amendments to the Patented Medicines Regulations had the projected effect of lowering drug prices by billions of dollars over the next ten years. But by overreaching its jurisdiction, these amendments have lost some of its bite. The Quebec Court of Appeal determined several provisions to be ultra vires.
March 2, 2022An intellectual property battle among major athletic brands is brewing in the United States. Lululemon is suing Peloton. Peloton is suing Lululemon. And Nike is suing Lululemon.
February 23, 2022Jordana Sanft & Jenene RobertsThere have been two recent and notable developments with respect to artificial intelligence (“AI”) and intellectual property (“IP”) rights in Canada. A preliminary legal question at the intersection of AI and IP is whether AI can be granted authorship in the case of copyright or inventorship in the case of patents for something that it generated. Jurisdictions around the world are facing the same issues. This blog post discusses Canada’s first foray into this new frontier.
February 17, 2022On February 8, 2022, the Competition Bureau released several recommendations for amending the Competition Act in its response to Senator Wetston’s call for submissions on Canada’s competition policy framework. The paper, entitled “Examining the Canadian Competition Act in the Digital Era”, identifies areas that the Competition Bureau believes are ripe for modernization. The paper, and Senator Wetston’s request for submissions, occur during a time when the federal government has indicated an openness to amending the Competition Act. While nothing in the Bureau’s submission has the force of law, the Bureau’s views on these matters will undoubtedly be taken very seriously, and some of the amendments the government is already considering mirror those in the Bureau’s submission. Consequently, the Bureau’s paper provides insight into the future direction of competition law in Canada.
February 11, 2022On February 4, 2022, CAIRP held its 19th Annual Review of Insolvency Law. The conference brought together insolvency law practitioners from across Canada for a showcase of papers authored for the latest edition of the Annual Review of Insolvency Law publication. The journal itself is now available in full on CanLII. Each panel was anchored by an ARIL paper whose author(s) led spirited discussions on contested topics important to the future of the insolvency practice.
February 7, 2022If there is a theme unifying the Court’s most significant private law decisions of 2021, that theme is coherence. From the principles of good faith policing contractual discretion, to the principles defining what policy decisions of public authorities are immune from negligence, this year’s decisions display a Court paying careful attention to order and structure.
Click here for Scott Rollwagen and Kaitlin Soye's case commentary on the top 10 SCC private law cases in 2021.
January 27, 2022In 2022, the use of summary proceedings in patent matters continues at the Federal Court. In Janssen Inc v Pharmascience Inc, the Court:
January 26, 2022On October 1, 2020, section 29.1 of the Class Proceedings Act (“CPA”) took effect. This provision, designed to address the phenomenon of class actions being started and then languishing in the system without advancement, provides for a mandatory dismissal of an action where, by the one year anniversary of the claim, the plaintiffs certification record has not been filed or there is no established timetable (by consent or Court order). This was a significant improvement to a class actions system that previously had no real tool for dealing with class actions that were languishing.
January 25, 2022The recent patent infringement case of Kobold Corporation v NCS Multistage Inc is interesting for two reasons: (1) it shows how a summary judgment motion can advance a case even if certain issues require a full trial; and (2) it is the first time a court has interpreted the defence of prior use since the 2018 amendments to section 56 of the Patent Act. This post considers the use of summary adjudication. Click here to read our companion post which considers the substance of the prior use defence.
January 13, 2022On January 7, 2022, the Federal Court released the public reasons in Kobold Corporation v NCS Multistage Inc. This summary judgment motion is the first judicial consideration of the prior use defence since the substantial amendments to section 56 of the Patent Act in 2018. Our comments on the procedural aspects of this summary judgment motion are available in a companion post here.
January 13, 2022-
The Competition Bureau’s focus on greenwashing continues to grow. This past week, the Bureau announced in a news release that it had reached a $3 million settlement agreement with Keurig Canada Inc. in respect of concerns over misleading and false claims about the recyclability of its single use Keurig K-Cup Pods. The agreement marks a growing trend in enforcement activities against “greenwashing”, the practice of making false or misleading environmental ads or claims about a product’s environmental benefits.
January 12, 2022In 2021, the Canadian pharmaceutical and life sciences industries were once again at the forefront of innovation, developing and commercializing new vaccines, drugs, and medical devices. The media continued to shine a light on the advances made to protect the public from COVID-19, including regulatory approvals for new mRNA and adenovirus vector vaccines. In the pharmaceutical patent litigation arena in particular, we saw some new trends develop. There were important developments in proceedings relating to pharmaceutical patents, advances in cases and legislative developments relating to the Patented Medicine Prices Review Board (“PMPRB”) as well as judicial review applications and appeals in patent-related fields.
January 6, 2022Many of you have seen our weekly blog posts that provide predictions as to how likely it is that particular cases will get leave to the Supreme Court of Canada. Those predictions are based on a dataset of every Supreme Court leave application decision from January 1, 2018 to the present. While those predictions are one use of our data, it’s not the only use. Here we present another: a quantitative year in review of leave applications decided by the Supreme Court of Canada in 2021.
January 5, 2022At the outbreak of the COVID-19 pandemic, a buyer of any business, particularly a theater operation heavily affected by public health restrictions, might understandably ask themselves; “Can I walk away from the deal?”
December 15, 2021The bench and bar have long recognized that lengthy trials decrease access to justice. That is no surprise: trials are expensive, long trials more so, and lawyers generally think that the longer the trial, the longer it takes to receive a decision.
December 1, 2021Interventions have long been extremely common at the Supreme Court of Canada. Most cases will have at least a few interveners while particularly high profile or contentious cases may have as many as 15 or 20. In Canada (Minister of Citizenship and Immigration) v Vavilov, for example, there were 24 groups of interveners, including the Attorneys General of four provinces.
November 18, 2021Andrew Moeser & Jacqueline ChanFor the first time, the Federal Court has dealt with the issue of whether a party is permitted to appoint co-solicitors of record. The Court held that a party may not appoint co-solicitors as of right, but it provided guidance on the circumstances in which co-solicitors may be permitted. It remains to be seen how “special” such circumstances must be, especially since such arrangements are not uncommon in modern practice.
November 17, 2021The application of the test for jurisdiction in the copyright context can sometimes be an exercise in gut feel. Luckily for litigants who prefer to make decisions based more on case law than feelings, the Divisional Court recently provided clarification on the application of the test for jurisdiction for statutory torts, like copyright infringement. The Ontario Divisional Court’s decision in Pourshian v Walt Disney Company (“Pourshian”), an appeal of a motion for an order to stay the plaintiff’s copyright infringement action on the basis of lack of jurisdiction, will hopefully take some of the guess work out of jurisdictional issues in the future.
October 26, 2021On September 3, 2021, the Ontario Court of Appeal (“ONCA”) released its decision in MDS Inc v Factory Mutual Insurance Company, which considered the proper interpretation of corrosion exclusions and resulting damage exceptions in standard-form property and casualty insurance policies.
September 28, 2021A recent decision of the Canadian International Trade Tribunal (CITT) provides rare guidance on the issues that can arise when counsel to an administrative tribunal enters private practice and begins to advise parties to matters before the tribunal. In Certain Container Chassis, the CITT rejected a motion seeking to remove counsel to a complainant because counsel had recently been employed by the Tribunal.
September 23, 2021-
Sana Halwani & Jacqueline Chan
In the last case heard before her retirement from the Supreme Court of Canada, and writing for a unanimous Court, Justice Rosalie Abella affirmed the Federal Court of Appeal’s ruling that tariffs set by the Copyright Board are not mandatory (York University v Access Copyright). Justice Abella also rejected the FCA’s narrow approach to fair dealing and reiterated the nature of fair dealing as a user’s right, to be approached in the educational context from a student’s perspective and not exclusively from the institutional perspective.
August 5, 2021Here’s a look at the leave application decisions that the Supreme Court of Canada will be releasing on July 29, 2021.
July 28, 2021Here is a look at the leave application decisions that the Supreme Court of Canada will be releasing on July 22, 2021.
July 20, 2021James W. HutchinsonHere’s a look at the leave application decisions that the Supreme Court of Canada will be releasing on Thursday, July 15, 2021.
July 13, 2021Here’s a look at the leave application decisions that the Supreme Court of Canada will be releasing on July 8, 2021.
July 6, 2021Three months ago, we launched our Supreme Court of Canada Leave Project. Part of that project is a machine learning algorithm that provides predictions of the likelihood of different cases getting leave to the Supreme Court. Since launch, we’ve made fourteen weekly predictions for leave applications to the Supreme Court of Canada. Our model has provided predictions for the likelihood that leave would be granted from 123 decisions of Courts of Appeal across the country.
June 25, 2021Here’s a look at the leave application decisions that the Supreme Court of Canada will be releasing on June 24, 2021.
June 22, 2021As part of our series on summary adjudication, we previously commented on the Federal Court’s recent use of a summary trial to resolve a patent infringement dispute. The abbreviated procedure of a summary trial addresses many of the Federal Court’s traditional concerns with summary judgment (e.g., lacking live evidence).
June 21, 2021Sana Halwani & Jacqueline ChanCopyright holders in Canada have scored a major victory in the fight against online piracy. The Federal Court of Appeal (“FCA”) in Teksavvy Solutions Inc v Bell Media Inc recently affirmed that site blocking injunctions may be ordered against Internet Service Providers (or ISPs), even as third parties to a copyright infringement action.
June 18, 2021Here’s a look at the leave application decisions that the Supreme Court of Canada will be releasing on June 17, 2021.
June 15, 2021-
Since the amendments to the PM(NOC) Regulations in 2017, both generic and brand side litigants have struggled with the question of whether the second person’s Notice of Allegation governs the issues in the proceeding, or the Statement of Defence. The Federal Court of Appeal has answered in this week’s decision in Sunovion Pharmaceuticals Canada Inc v Taro Pharmaceuticals Inc: it is the Statement of Defence.
June 11, 2021As many will know, Lenczner Slaght maintains an ongoing database of every application for leave to appeal to the Supreme Court of Canada that was decided from January 1, 2018 onward. We use this data to train a machine learning algorithm to predict the likelihood of cases getting leave, which we use for various purposes.
June 11, 2021Here’s a look at the leave application decisions that the Supreme Court of Canada will be releasing on June 10, 2021.
June 8, 2021As vaccine rollouts quicken and Ontario looks forward to a loosening of COVID-19 restrictions, the Ontario Bar Association and the Commercial List Users’ Committee (CLUC) convened its annual Education Day on June 2, 2021.
June 7, 2021Here’s a look at the leave application decisions that the Supreme Court of Canada will be releasing on June 3, 2021.
June 1, 2021Adam H. KanjiHere’s a look at the leave application decisions that the Supreme Court of Canada will be releasing on May 27, 2021.
May 26, 2021Here’s a look at the leave application decisions that the Supreme Court of Canada will be releasing on May 20, 2021.
May 18, 2021Here’s a look at the leave application decisions that the Supreme Court of Canada will be releasing on May 13, 2021.
May 11, 2021Here’s a look at the leave application decisions that the Supreme Court of Canada will be releasing on May 6, 2021.
May 4, 2021On April 29, 2021, Canadian Lawyer held the webinar titled “Virtual Advocacy: Views from the Bench”. Justices Kathryn N. Feldman (Ontario Court of Appeal), David M. Masuhara (British Columbia Supreme Court), and Roger R. Lafrenière (Federal Court) joined Mediator and Arbitrator, Robin Dodokin, to share their views on how advocates can succeed and adapt in virtual proceedings. As lockdowns remain in place across the country, their advice was timely and valuable.
May 3, 2021-
Peter Griffin, Lawrence Thacker and Derek Knoke acted as counsel to G2S2 Capital Inc., a bondholder and lender to Calfrac Well Services Ltd. (“Calfrac”) in a restructuring and recapitalization implemented pursuant to a plan of arrangement (the "Plan of Arrangement") under the Canada Business Corporations Act ("CBCA").
April 28, 2021Here’s a look at the leave application decisions that the Supreme Court of Canada will be releasing on April 29, 2021.
April 27, 2021On April 9, 2021, The Advocates’ Society held a virtual panel discussion on the topic of Commercial List Advocacy. Co-chaired by Peter Osborne of Lenczner Slaght and Deborah Palter of Thornton Grout Finnigan LLP, Commercial List judges and seasoned practitioners shared the dos and don’ts of 9:30 appointments, pre-trial hearings and judge-led mediations. We also heard directly from judges about what they want to see when you appear before them and received practical advice on effective oral advocacy in the era of Zoom-court. What follows is a short summary of the key takeaways.
April 21, 2021Here’s a look at the leave application decisions that the Supreme Court of Canada will be releasing on April 22, 2021.
April 20, 2021William C. McDowell & Adil AbdullaIn brief, the decision by Justice Boswell of the Commercial List suggests that solicitor/client privilege has been narrowed, and litigation privilege has become easier to lose. For seven years, Catalyst Capital and West Face Capital have been at war. Their latest skirmish, over privilege, might change the way that lawyers interact with witnesses, investigators, and the media.
April 15, 2021Here’s a look at the leave application decisions that the Supreme Court of Canada will be releasing on April 15, 2021.
April 13, 2021Here’s a look at the leave application decisions that the Supreme Court of Canada will be releasing on April 8, 2021.
April 7, 2021Here’s a look at the leave application decisions that the Supreme Court of Canada will be releasing on April 1, 2021.
March 30, 2021Here’s a look at the leave application decisions that the Supreme Court of Canada will be releasing on March 25, 2021. Each week, we’ll be providing a short blog post that summarizes some of the upcoming cases and gives a prediction, of the probability that leave will be granted. These predictions will be based on our proprietary machine learning model and dataset of every leave application decision released by the Supreme Court of Canada from January 1, 2018 onward.
March 23, 2021In the spring of 2020, we posted an analysis of the Supreme Court of Canada’s 2019 Year in Review and summarized some of the statistics found in that document. Unfortunately, the general statistics found in the 2019 Year Review were high level and limited the analysis we could provide about what was happening at the Supreme Court of Canada. We also could not find any publicly available and current datasets that would allow us to provide a more detailed analysis.
March 22, 2021-
Securities law class actions are now common in Ontario. However, courts are still addressing some of the core elements of the conceptual approach to such issues. The recent decision in the Ontario Court of Appeal in Drywall Acoustic Lathing and Insulation, Local 675 Pension Fund v Barrick Gold Corporation (“Barrick Gold”) is a highly significant decision in this area, particularly in its treatment of the “public correction” requirement for securities class actions.
March 18, 2021The Supreme Court of Canada released its long-anticipated decision in Wastech Services Ltd v Greater Vancouver Sewerage and Drainage District today, a major decision concerning the scope of the obligation to perform and enforce contracts in good faith. While it rejected any suggestion that it is the Court’s role to impose unbargained-for terms on a private agreement, the Court affirmed a general power—that cannot be excluded—to police the exercise of discretion under contracts where its exercise would undermine the purpose of the parties’ agreement.
February 5, 2021Sequels in the movie business, just like appeals in the judicial system, carry certain undeniable risks. For every triumphant The Empire Strikes Back, there are dozens of Speed 2: Cruise Control, Jaws: The Revenge, Weekend at Bernie’s II (or, heaven forbid, Return of the Jedi) which exist as a cautionary tale to revisiting the same material again.
January 27, 2021The Federal Court of Appeal has historically held that summary judgment is usually not the preferred means of resolving patent infringement actions. These cases are inherently complex and technical, and usually involve expert evidence. In the Federal Court of Appeal’s view, a trial judge who has had the opportunity to hear all of the evidence live is best suited to resolve these disputes (see Suntec Environmental Inc v Trojan Technologies Inc).
January 26, 2021Since its enactment in 2018, section 53.1 of the Patent Act has been the subject of much discussion. This provision allows courts tasked with construing the claims of a patent to consider communications previously made by the patentee to the Canadian Patent Office in the course of patent prosecution (known as the “prosecution history” or the “patent file wrapper”). Recently, the Federal Court has provided differing interpretations regarding the limitations of this section.
January 25, 2021As I have posted before, I’m a fan of using empirical data to inform legal practice. Much as the evidence-based medicine movement has taken hold in the field of medicine, the practice of law should, wherever possible, rely on objective data to inform our decision-making. Unfortunately, empirical legal work remains at an early stage. While there are some academics embracing empirical analysis, much of legal academic scholarship does not involve the quantitative analysis of empirical data. In my view, it is important for lawyers to test our intuitions whenever we can by reference to whatever data is available.
January 20, 2021In 2020 the Supreme Court of Canada tested the boundaries between public and private law, releasing several decisions in which the Court struggled with the role that Courts should be playing in holding parties to public standards of justice and fairness in their private dealings.
Click here for Scott Rollwagen's case commentary on those key decisions.
January 15, 2021The Supreme Court of Canada has announced important changes to the Rules of the Supreme Court of Canada that will take effect on January 27, 2021. The amendments were published in the Canada Gazette here, and the Supreme Court of Canada has also published a plain language guide for these amendments here. While these changes are fairly minor in the grand scheme of Supreme Court practice, they will simplify the process for seeking leave to the Supreme Court of Canada.
January 8, 2021This past Friday, the Supreme Court of Canada released its much-anticipated decision in C.M. Callow Inc v Tammy Zollinger (“Callow”), the first of two appeals heard in December 2019 seeking clarification on the scope of the organizing principle of good faith recognized in Bhasin v Hrynew (“Bhasin”).
December 21, 2020On January 1, 2021, significant changes to the Rules of Civil Procedure will come into force. The COVID-19 pandemic has materially transformed the day-to-day practice of litigation, and these rule changes are a significant attempt to capture the pragmatism and efficiencies that the pandemic has pushed litigators to adopt to keep their files moving.
December 17, 2020-
On December 13, 2020, news broke that Cleveland’s professional baseball team was changing its name. After the 2021 season, the Cleveland baseball team will no longer use the name “Indians”.
December 16, 2020As we near nine months since the emergence of COVID-19 in Ontario, The Honourable Doug Downey, Attorney General for Ontario, recently reflected on the pace of change that resulted within the legal system.
December 4, 2020On November 24, 2020, Canadian Lawyer held the Young Lawyers Summit: Thriving in Today’s Changing Legal Industry. Like everything this year, the group gathered virtually for a packed agenda of panel discussions ranging from becoming a thought leader to making time for mental rest and wellbeing. What follows is a short summary of the sessions that we found particularly relevant given our varied experience and roles at the firm.
November 27, 2020Patent infringement actions are inherently complex and technical. They often involve complex scientific inquiries and expert evidence. The Federal Court has historically held that summary judgment—which does not include live evidence—is generally not the preferred means of resolving patent infringement actions. Instead, such determinations are best left to a trial judge who has had the opportunity to hear all of the evidence live (e.g., Suntec Environmental Inc v Trojan Technologies Inc).
November 25, 2020Referring to living “in an era in which data is constantly flowing across borders”, Canada recently introduced Bill C-11. If enacted, it will radically alter the Canadian privacy litigation landscape. Bill C-11 contains the Consumer Privacy Protection Act (“CPPA” or the “Act”), and the Personal Information and Data Protection Tribunal Act (“PIDPTA”), and makes a number of consequential amendments to existing legislation. Bill C-11 would bring Canada closer to the European Union’s General Data Protection Regulation, which set the standard for data protection in the developed world.
November 25, 2020Earlier this week the Court of Appeal for Ontario released their decision in Sokoloff v Tru-Path Occupational Therapy Services Ltd. This appeal concerns the legislative framework set out in s. 137.1 of the Ontario Courts of Justice Act ("CJA"), colloquially known as the “anti-SLAPP” framework.
November 20, 2020Sana Halwani & Jacqueline ChanThe Federal Court of Appeal (“FCA”) has clarified the extent of flexibility afforded when undertaking the “Obvious to Try” test in Amgen v Pfizer, 2020 FCA 188. Although it ultimately cautioned against a segmented approach, the FCA did not dismiss the possibility that experimental steps could be assessed individually in order to make conclusions about an experiment as a whole, particularly with respect to the Self-Evident and Extent of Effort factors of the test. Despite agreeing that the Federal Court (“FC”) could have been more expansive and all-embracing in its overall conclusion, the FCA did not deem the FC’s lack of analysis to have amounted to a palpable and overriding error.
November 16, 2020Many know Amazon as the world’s largest online retailer, a mantle it carries, in part, because of just how easy it is to buy about anything. In fact, as many Canadians know, you can buy something on Amazon with as little as “1-Click”.
November 12, 2020Last week, the Federal Court published a consolidated practice notice, updating and consolidating four other case and trial management guidelines for complex proceedings and proceedings under the PM(NOC) Regulations from 2015, 2016, and 2017 (available here, here, here, and here).
November 9, 2020The concept of a duty of care is foundational to the common law concept of negligence. Whether a duty of care exists and, if so, the scope of that duty of care are hotly contested issues that have made their way to the Supreme Court of Canada many times over the last few decades. Today, the Supreme Court of Canada released its long-anticipated decision in 1688782 Ontario Inc v Maple Leaf Foods Inc, in which a narrow majority of the Supreme Court found that Maple Leaf Foods owed no duty of care to Mr. Sub franchisees in connection with a listeria outbreak and product recall. While the principles set out in Maple Leaf Foods are not fundamentally new, the majority’s decision provides insight into the application of the duty of care analysis in cases involving pure economic loss.
November 6, 2020-
The popular Canadian pastime of snowmobile litigation has turned up yet another interesting decision (Bombardier Recreational Products Inc v Arctic Cat Inc, 2020 FC 946) – this time on the topic of injunctions. This decision of Justice Roy arose from the moving parties’ attempt to vary an Order issued by the Federal Court in Bombardier Recreational Products Inc v Arctic Cat Inc, 2020 FC 691. As Justice Roy noted, the Order itself was “anything but unusual,” and was representative of injunctions issued in patent cases time and time again. Given this and the existing jurisprudence, it was perhaps a predictable result that the parties were denied any relief.
October 16, 2020In 2017, the Canada Food Inspection Agency (the “CFIA”) determined that wines produced by Psagot Winery, a vineyard located within an Israeli settlement in the West Bank, could be sold in Canada with a “Product of Israel” label to meet “country of origin” labelling requirements required under the Consumer Packaging and Labelling Act and the Food and Drugs Act. This decision was challenged by Dr. David Kattenburg, a Canadian activist, on the basis that the wine was in fact produced on occupied Palestinian territory and not within Israel, making the labelling of “Product of Israel” false and misleading and therefore contrary to the applicable legislation.
October 16, 2020A recent decision from the Ontario Court of Appeal serves as a cautionary tale for regulated professionals and their counsel considering the terms of a potential resolution of discipline proceedings where related criminal proceedings may still be on the horizon. In R v Lo, the Court of Appeal upheld a trial judge’s decision during a criminal jury trial to admit into evidence the Agreed Statement of Fact (“ASF”) from a prior disciplinary hearing on related allegations before the College of Psychologists (“CPO”).
October 13, 2020Are terminated employees entitled to the payout of bonuses during their reasonable notice period? And should this assessment be informed or affected by an employer’s bad faith or dishonest conduct that led to an employee’s termination or constructive dismissal? These were some of the questions before the Supreme Court of Canada in the eagerly anticipated decision in Matthews v Ocean Nutrition Canada Ltd. The case offered a unique opportunity for the Court to comment on the contractual duty of good faith outlined in Bhasin v Hrynew and its potential effects on employment relationships and exclusion clauses.
October 9, 2020In Chandos Construction Ltd v Deloitte Restructuring Inc ("Capital Steel") a strong majority of the Supreme Court of Canada affirmed the continuing relevance in Canada of the common-law anti-deprivation rule in insolvency. The rule invalidates any provision in an agreement providing that upon an insolvency (or bankruptcy), value is removed from the reach of the insolvent person’s creditors which would otherwise have been available to them, and places that value in the hands of others. It is a rule protecting the strong public policy in favour of the fair distribution of an insolvent person's assets among unsecured creditors.
October 2, 2020The Greenhouse Gas Pollution Pricing Act and the National Concern Doctrine: A Rights-Based Approach?Over the past two days, the Supreme Court of Canada heard appeals from decisions of the Alberta, Saskatchewan, and Ontario Courts of Appeal on the constitutionality of the federal government’s Greenhouse Gas Pollution Pricing Act (the “GGPPA” or the “Act”).
September 24, 2020The Supreme Court of Canada has released its highly anticipated pair of decisions, 1704604 Ontario Ltd v Pointes Protection Association and Bent v Platnick, which consider the anti-SLAPP framework set out in s 137.1 of the Ontario Courts of Justice Act (“CJA”) for the first time.
September 11, 2020Patrick A. Wright & Colin JohnstonA recent Divisional Court case involving the College of Physicians and Surgeons of Ontario reaffirms the importance of ensuring that findings of professional misconduct by the College’s Discipline Committee fairly arise from the allegations contained in the College’s Notice of Hearing.
September 3, 2020Adam H. KanjiOn July 29, 2020, Chief Justice Morawetz announced that the Ministry of the Attorney General (“MAG”) will be piloting a new document sharing and e-hearing platform for select civil matters located in Toronto as of August 10, 2020, with the desire of having all Toronto matters on the system by the end of August. By the end of 2020, Ontario hopes to have all Superior Court proceedings using this platform.
August 13, 2020Waiver of tort has long been a contentious subject in Canadian law. Many, many courts have permitted waiver of tort claims to proceed in class actions. Yet no court had definitively ruled as to whether waiver of tort in fact existed. It was for this reason that the Supreme Court of Canada’s decision in Atlantic Lottery Corporation v Babstock has been so highly anticipated. Most expected that the Supreme Court would finally answer whether a waiver of tort existed as an independent cause of action under Canadian law. This in turn would have significant consequences for many types of cases, including many types of class actions.
July 24, 2020-
An individual’s genetic composition is arguably one of the most personal and private types of information out there. As science and technology continue to develop, the collection, use, and disclosure of genetic information has increased exponentially. Medical genetic testing has become a key tool in helping to diagnose and treat complicated illnesses and commercial genetic testing kits, such as 23andMe, have expanded in popularity. All of this has resulted in an exponential increase in the amount personal data being collected in our everyday lives.
July 13, 2020The Federal Court of Appeal has affirmed the constitutionality of Canada’s federal anti-spam legislation (“CASL”) in 3510395 Canada Inc v Canada (Attorney General), on both federalism and Charter grounds.
July 6, 2020The COVID-19 pandemic has required courts to adapt to new ways of providing access to justice. We have first-hand experience with this new reality.
June 30, 2020Chris Kinnear Hunter & Paul-Erik VeelThe Supreme Court of Canada has released its highly anticipated decision in Uber Technologies Inc v Heller.
June 26, 2020Chris Kinnear HunterThe Investment Industry Regulatory Organization of Canada (“IIROC”) has proposed a major change to the regulatory structure of the investment industry.
June 12, 2020Patent infringement actions are inherently complex and technical. They often involve complex scientific inquiries and expert evidence. The Federal Court has historically held that summary judgment—which does not include live evidence—is generally not the preferred means of resolving patent infringement actions. Instead, such determinations are best left to a trial judge who has had the opportunity to hear all of the evidence live (e.g. Suntec Environmental Inc v Trojan Technologies Inc).
June 9, 2020Electronic filing, remote discoveries and examinations, and video-conference hearings are some of the ways litigation has adapted to the current COVID-19 emergency. No doubt, some of these new developments will remain once the crisis is over. What is sure to persist, however, is the renewed focus on an old technology: the written word. How can judges and advocates adapt to a system where oral advocacy may no longer be the default mode?
May 29, 2020As the justice system continues to adapt and respond to the COVID-19 crisis, advocates everywhere are faced with new challenges in the administration of justice. Yesterday, the Honourable George R. Strathy, Chief Justice of Ontario and President of the Court of Appeal for Ontario hosted a virtual fireside chat to share the perspective of the judiciary, discussing the effects of COVID-19 on the administration of justice and lessons learned.
May 20, 2020The old saying that "to a hammer, every problem looks like a nail" is disquietingly relevant to traditional approaches to the dispensation of justice. For a long time, commentators have observed that the legal profession and the Courts lag behind much of the rest of society in leveraging digital resources to improve the quality, speed, and efficiency of litigation.
May 15, 2020During last year's NBA Finals, Kawhi Leonard was taking on more than the Golden State Warriors. In the middle of the Finals, he filed a lawsuit against the company he formerly endorsed—Nike—in the Southern District of California (original complaint here). At issue was Leonard's "Klaw Logo," which he claimed to have conceived before his contract with Nike. An early sketch of the logo and the design Nike ultimately used are shown side-by-side here.
May 13, 2020-
In the face of the ongoing COVID-19 pandemic, and preparations for reopening some sectors of the economy, the need for medical supplies is at the forefront of everyone’s mind. While it is important that medical supplies be available, it is paramount that the supplies are safe and effective.
May 12, 2020Julia FloodOn May 11, 2020, Canadian Lawyer held a webinar titled “COVID-19: Litigation Fallout: What Organizations Need to Do to Mitigate Their Risk” as part of their online event series focused on steering organizations through crisis. The risk of liabilities and potential for litigation are top-of-mind as businesses navigate from the pandemic towards its aftermath. Michelle Kelly, a partner at Cox & Palmer, led the speakers as they discussed practical tips and what to expect upon returning to the ‘new normal’. Below are some key takeaways for organizations, and their in-house and external counsel.
May 12, 2020In Back to Methuselah, George Bernard Shaw famously wrote that an election was “as bad as a battle except for the blood”. That is perhaps dramatic in the context of the Companies’ Creditors Arrangement Act (“CCAA”), but certainly a creditor vote can be a tense and contested affair. Such was the case when Callidus Capital Corp (“Callidus”), an asset-based or “distressed lender” and secured creditor, made a “second kick at the can” to approve a plan of arrangement already rejected by unsecured creditors, and found itself barred from voting on the plan for having acted for an “improper purpose”.
May 11, 2020The legacy of the movie The Room, Tommy Wiseau’s infamously terrible 2003 cult classic, reached new heights (or lows depending on your point of view) last week when it made its mark on Canadian law in Justice Schabas’ decision in Wiseau Studio, LLC v Harper. A movie lovingly advertised as providing a viewing experience akin to “getting stabbed in the head” prompted copyright litigation and, in the process, has provided a new story of the risks of pursuing an ill-advised litigation strategy through trial.
May 7, 2020Lawyers are trained to do close and careful reading of cases. We are experts in textual analysis of individual decisions, and we can spend hours arguing over what individual paragraphs in Supreme Court of Canada decisions mean. Yet while individual decisions are important, so are the aggregate trends. Quantitative data can reveal important information that lawyers can use to engage in more effective advocacy and better inform our clients as to what to expect.
May 4, 2020Sana Halwani & Jacqueline ChanOn October 15, 2020, both parties were granted leave to appeal to the Supreme Court of Canada. We will continue to follow the developments of the appeal.
April 27, 2020It is not uncommon in the Canadian class action landscape for competing class actions to be commenced in multiple jurisdictions, each procedurally vying in the horse race of who will be named the nation’s choice as national class action. Competitors who lose that race are stopped in their tracks, having to sit along the side lines as the blue-ribbon action proceeds to trial.
April 23, 2020
