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On the Docket
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Here’s a look at the leave application decisions that the Supreme Court of Canada will be releasing on December 19, 2024.
December 18, 2024In Bertsch v Datastealth Inc, the Superior Court confirmed the enforceability of an ESA-minimum termination clause that excluded common law notice periods. This decision, resulting from a Rule 21 motion to strike, marks a welcome shift for employers in the court’s longstanding reluctance to uphold termination provisions in employment contracts.
December 10, 2024The Federal Court of Appeal’s decision in Galderma Canada Inc v Canada (Attorney General) (“Galderma FCA”) arose from what seemed like a straightforward production order, but ended up providing clear guidance on the jurisdiction of Canada’s Patent Medicine Prices Review Board (PMPRB). The key takeaway: the PMPRB’s jurisdiction extends only to patented medicines, not all medicines.
December 6, 2024The Court of Appeal for Ontario (“ONCA”) will hear the appeal of Dufault v The Corporation of the Township of Ignace (“Dufault”) this Friday. While Ontario courts previously recognized that creating jurisprudence based on hypothetical situations is a slippery slope, since the decision in Waksdale v Swegon North America Inc, courts in Ontario have repeatedly invalidated termination clauses in employment agreements by considering hypothetical breaches of employment standards legislation.
December 5, 2024In the recent decision in Bayer Inc v Amgen Canada Inc, Case Management Judge Duchesne of the Federal Court dismissed a request for samples on the basis that Bayer failed to demonstrate that the proposed testing could lead to a result that would assist the trial judge in determining an issue in the proceeding.
December 2, 2024Canada’s federal structure means national class actions naturally raise potential constitutional questions. Those questions become potentially more thorny where a class action is pursued not on behalf of individuals across multiple provinces and territories, but instead provincial and territorial governments themselves. The Supreme Court’s recent decision in Sanis Health Inc v British Columbia addressed many of those concerns and ultimately defined a broad scope for national class proceedings, including where a proposed class includes other provincial or territorial governments.
December 2, 2024Christopher Yung authored the blog Live and Let Dye – Litigation Maneuvers Prior to a Shareholder Vote, published on commerciallist.com.
November 27, 2024The Ontario Court of Appeal’s decision in Aroma Franchise Company Inc v Aroma Espresso Bar Canada Inc has reshaped the disclosure obligations of...
November 22, 2024When we think about the broad direction of government policy, we generally think about the statutes introduced by the legislature. However, the reality is that much of the laws that impact us are subordinate legislation: regulations, rules, and policies that are enacted by Ministers, boards and agencies, or other government actors pursuant to rule-making power provided to them under legislation. For nearly a decade, challenges to subordinate legislation were extremely challenging. The Supreme Court of Canada’s 2013 decision in Katz Group Canada Inc v Ontario (Health and Long‑Term Care) set a high bar for challenging such subordinate legislation. The Court in that case held subordinate legislation “must be ‘irrelevant’, ‘extraneous’ or ‘completely unrelated’ to the statutory purpose to be found to be ultra vires on the basis of inconsistency with statutory purpose.”
November 11, 2024Madison Robins and Solomiya Zakharchuk co-authored the blog Arrivederci, for Now, published on commerciallist.com.
November 7, 2024-
As part of our series on summary proceedings in IP cases, we previously commented on the Federal Court of Appeal’s guidance on when and how a court should determine if summary trial is appropriate. In this post, we consider Associate Judge Horne’s recent decision in Toronto-Dominion Bank v Dyas (“TD Bank”), which deals with when a Case Management Judge should schedule (or refuse to schedule) a summary trial.
November 1, 2024“There is nothing more dangerous than someone who knows a little law.” My late father, a longtime criminal prosecutor turned judge, used to say this to me when I first started law school and immediately assumed I could solve any legal problem that came my way. What I lacked in knowledge, I made up for in confidence.
October 22, 2024The recent decision in Munchkin Inc v Angelcare Canada Inc presents an example of circumstances in which foreign parent companies can be held liable for patent infringement in Canada.
October 17, 2024The proceedings in Canada (Privacy Commissioner) v Facebook Inc arose from the Privacy Commissioner’s investigation into Facebook’s practice of sharing users’ personal information with third-party apps. At the Federal Court, Justice Manson dismissed the Commissioner’s application, finding that the Commissioner had not shown that Facebook failed to obtain meaningful consent from users to disclose their data, and had not shown that Facebook failed to adequately safeguard user data. In its latest decision, Justice Rennie of the Federal Court of Appeal allowed the Commissioner’s appeal, concluding that Facebook indeed breached Personal Information Protection and Electronic Documents Act (PIPEDA)’s requirement to obtain meaningful consent from users prior to data disclosure and its obligation to safeguard user data.
October 17, 2024As important as corporations are to modern commerce, Courts have long struggled with how to make these fictional persons responsible for their actions when allegations against them require the Court to assess their state of mind. The problem is as old as the modern corporation, and can cause exasperation when corporations fail, leading Lord Chancellor Thurlow in the 18th century to remark that a corporation, being a fiction, “has neither a body to kick, nor soul to be damned.”
October 16, 2024Fall Regulatory Round Up
Activity abounds on the regulatory landscape from modernization and transparency initiatives to consultations, collaborations, and even potential implementations. Our Fall Regulatory Round Up highlights significant developments for drug products and patents that are of interest to those in the life sciences and biotech spaces. We will be following these important regulatory initiatives as they continue to unfold and will provide updates of interest.
September 30, 2024On September 19, 2024, The Advocates’ Society held its 14th Annual Securities Symposium. As part of the program, Patrick Gadson (Vinson & Elkins LLP, New York) and Kelly Osaka (Dentons Canada LLP, Calgary) joined Brian Kolenda (Lenczner Slaght LLP, Toronto) to discuss emerging trends in shareholder activism and ESG litigation. Their discussion, summarized below, emphasized the importance of understanding market participants and political sentiment, while highlighting upwards trends in greenwashing-related litigation, and the increasing prominence of proxy firms.
September 24, 2024In its recent decision, Mud Engineering Inc v Secure Energy Services Inc, a divided Federal Court of Appeal considered the effect of the parties’ failure to prove ownership in the context of a summary trial. Though both the majority and the dissenting opinions agreed that the Patent Act creates a rebuttable presumption of ownership, they differed on which party should bear the burden of proving ownership once that presumption has been successfully rebutted and on the effect of that rebuttal on the underlying infringement action.
September 9, 2024Christine Windsor & Mina AlamIn Poonian v British Columbia (Securities Commission), a majority of the Supreme Court of Canada clarified provisions in the Bankruptcy and Insolvency Act (the “BIA”) that govern when a bankrupt is not released from a claim upon an order of discharge. The Supreme Court concluded that while bankruptcy may release bankrupts from administrative penalties, it will not release them from orders to pay amounts obtained by fraud.
August 8, 2024In March 2024, The Body Shop Canada (“TBS Canada”) filed a Notice of Intention to make a Proposal under the Bankruptcy and Insolvency Act after its UK parent company completed a cash sweep of TBS Canada. The cash sweep instantly eliminated TBS Canada’s liquidity, forcing it to suspend online orders and close 33 retail stores.
July 26, 2024-
The intersection of artificial intelligence and intellectual property law is once again in the spotlight with the latest legal proceeding, Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic v Ankit Sahni.
July 18, 2024In the final instalment of our AI in the Courtroom series, we explore practical challenges that may arise when litigating in an AI world, and within the current framework of the Rules of Civil Procedure, Practice Directions, and common law. While the law is not entirely unequipped to deal with these challenges, evolution in the Rules and common law will likely be necessary as AI becomes more commonly used by various participants in the litigation process.
June 24, 2024Savvy content creators and copyright owners often use technical protection measures (also known as “TPMs”) to restrict what users can do with their works (often digital materials). The prohibition against circumventing TPMs is rooted in sections 41 and 41.1 of the Copyright Act, but their fit within the broader Copyright Act is the subject of ongoing debate.
June 13, 2024Lawrence E. Thacker and Solomiya Zakharchuk co-authored the blog Mail (Un)Deliverable, published on commerciallist.com.
June 4, 2024As widely reported by the likes of CBC, the Guardian, the Verge and CNBC, OpenAI has indicated they will “pause” the use of their AI-generated voice after users (and Scarlett Johansson herself) noted the striking similarity to Scarlett Johansson's voice from the film “Her”. This connection may have been intentional, OpenAI’s CEO, Sam Altman, posted a one-word message – “her” – on his social media on the day the AI-generated voice was unveiled.
May 24, 2024In our last comment on non-patentable subject matter, we provided our thoughts on the Federal Court of Appeal’s decision in Canada (Attorney General) v Benjamin Moore & Co (the “Benjamin Moore Appeal”). As a top line, this decision was a loss for Canadian innovation. As we discussed in detail, the Federal Court of Appeal missed an opportunity to clarify the law of patentable subject matter, adopt the IPIC framework endorsed by Associate Chief Justice Gagné, and signal to the Canadian Intellectual Property Office (“CIPO”) that its examination practices were out of step with the law. Instead, the Federal Court of Appeal further complicated an already complex area of the law, which will increase the costs of innovators to register their technologies in Canada.
May 22, 2024As artificial intelligence continues to permeate every aspect of our lives, legal challenges involving AI will proliferate. Parts 1 to 3 in our series explored many of these potential questions. AI will create new legal problems and change the texture of old ones. As always, the judiciary, with the assistance of counsel, will assume a pivotal role in navigating this landscape.
May 22, 2024A desire to expedite patent disputes may result in a party pursuing summary adjudication. We have previously commented on a number of cases relating to the use of summary proceedings for resolving patent cases in Canada. In particular, in the Federal Court of Appeal’s 2022 decision in Gemak Trust v Jempak Corporation, the FCA held that summary judgment is not appropriate where there are serious issues with respect to the credibility of witnesses, and the Court observed more generally that “while patent infringement issues are not by definition excluded from the ambit of the summary judgment process, they tend to raise complex issues of fact and law that are usually better left for trial”. We noted that in Gemak, the FCA was tapping the brakes on a trend towards increased adoption of summary proceedings in patent cases, and that for parties interested in summary adjudication, summary trial may be a more attractive option, particularly where witness credibility, and especially expert credibility, is likely to be an issue.
May 15, 2024The multifaceted nature of generative AI is bound to create legal complexities at the intersection of intellectual property law and class actions, as this emerging technology disrupts not only the tech landscape but the legal one too.
May 6, 2024Solomiya Zakharchuk authored the blog Out of Context, Out of Luck, published on commerciallist.com.
April 30, 2024-
The Federal Court of Appeal’s decision in Steelhead v ARC upholds Justice Manson’s summary trial decision finding no infringement by ARC Resources of Steelhead’s 085 Patent. In summary, the FCA held that the marketing of an apparatus that – if built – would infringe the 085 Patent did not constitute “use” (or “exploiter” in the French version) under section 42 of the Patent Act, and therefore could not be infringement.
April 29, 2024Barring a very narrow set of circumstances, sophisticated parties with equal bargaining power are generally held to the terms of their agreement. 660 Sunningdale GP Inc v First Source Mortgage Corporation is a recent example where a commercial developer, 660 Sunningdale GP, was ordered to pay the entirety of the lender fee to the lender, First Source Mortgage Corporation, even though the loan did not proceed.
April 23, 2024Bonnie Greenaway and Drew Black co-authored the blog Shareholder Wars: A Receiver Is Not the Remedy, published on commerciallist.com.
April 23, 2024Did Drake respond to an alleged feud with fellow artists, including Kendrick Lamar and Rick Ross? As reported by the LA Times, a track titled ‘Push Ups (Drop and Give Me 50)’ appeared online recently, taking aim at Lamar and several of his recent musical collaborators. However, this track remained unclaimed on any of Drake’s official platforms, causing some to question whether this track was fan-generated using artificial intelligence. This cynicism may be justified: Drake is reportedly no stranger to having to denounce fan-generated songs, and Lamar’s rumoured response was actually the work of artificial intelligence and another rapper.
April 22, 2024The current landscape is inundated with narratives surrounding artificial intelligence and its intersection with the law. From the New York Time’s lawsuit launched against OpenAI in December 2023, to the BC lawyer reprimanded for citing fake AI-generated cases, to the lying Air Canada chatbot, the legal and mainstream media is full of stories of AI or people using AI running up against traditional legal doctrine and practice. Yet, amidst this surge of AI-related incidents, Canada finds itself grappling with more questions than answers.
April 18, 2024In two decisions released on the same day, the Federal Court has confirmed that applications are summary procedures that exclude the right or ability to examine witnesses who have not sworn affidavits.
April 15, 2024In Canada, a generic pharmaceutical company can commence an action for damages under section 8 of the Patented Medicines (Notice of Compliance) Regulations (the “Regulations”), if it successfully defends a patentee’s claims in an earlier section 6 prohibition proceeding. Section 8 actions are often complex, requiring a determination of the alleged loss suffered by assessing a “but-for world” where the generic would have received regulatory approval and commenced sales at an earlier date, but for having been blocked by the operation of the Regulations. Depending on the drug(s) and patent(s) at issue, there may be several independent section 8 actions against a patentee, each started by a different generic plaintiff (see our previous post). When distinct section 8 actions are commenced pertaining to the same drug(s), patent(s), and patentee(s), issues as to relevance and scope of each action may arise.
April 12, 2024By playing their essential gatekeeping role, class action judges have in numerous decisions clarified the necessary elements of various causes of action and the availability of specific remedies in a particular case. What constitutes harm that is compensable, for example, has featured in numerous product liability class actions and the failure to show harm has put an end to many of them. For strategic and practical reasons, some class actions do not seek compensation for losses that the class members suffered. Instead, the strategy is to pursue remedies that do not correspond with personal losses such as disgorgement, nominal damages and punitive damages. Hoy v Expedia Group Inc is a recent example.
April 9, 2024A power of sale is a very common mortgage remedy used by lenders where a borrower defaults under the applicable mortgage agreement. In light of the current interest rate environment, the power of sale process has anecdotally been exercised more frequently. Lenders (and borrowers), however, should keep in mind when such a right can be restrained.
April 3, 2024In the recent decision of Wyse Meter Solutions Inc v CARMA Corp, Justice Audrey P. Ramsay rejected an attempt by a former employer to obtain injunctive relief enforcing a non-competition clause against an employee who had been required, as a condition of employment, to purchase shares in the employer.
March 18, 2024-
In Canada, numerous class proceedings have launched on behalf of governments and individuals against entities involved in the manufacture and distribution of opioids. These actions claim wrongful acts and damages that extend over 23 years, raising important legal questions for the insurers of these entities as to the extent of their obligation to defend the proceedings on behalf of their insureds.
March 7, 2024Court orders must be obeyed. If they are not, the consequences can be severe.
March 6, 2024Few pop icons have navigated the art of protecting their intellectual property as well as Taylor Swift. Not only does Taylor Swift have an outstanding knack for creating number one hits, a keen eye for branding, and an entrepreneurial spirit that is inspiring, she is also business savvy in protecting her trademarks and copyright. On this International Women’s Day 2024 we look to Taylor Swift as an inspiration in IP protection, enforcement, and commercialization, as we celebrate women who “could show you incredible things”.
March 6, 2024If your 2024 has been too busy to keep up with caselaw, below we summarize and provide the key takeaways from pharmaceutical patent decisions that have been issued from the Federal Court and Federal Court of Appeal in the last two months.
February 22, 2024After a three-week trial, the Ontario Superior Court has held that the Royal Bank of Canada had after-acquired cause to terminate a senior banker, Aidan Mittra, and dismissed Mittra’s $10‑million lawsuit.
February 21, 2024On February 14, 2024, the British Columbia Civil Resolution Tribunal (which is the equivalent of Ontario’s Small Claims Court) issued its decision in Moffatt v Air Canada. In less than a week, the decision has made international news as a result of the involvement of Air Canada’s chatbot.
February 21, 2024It has been approximately six months since the Federal Court of Appeal’s decision in Canada (Attorney General) v Benjamin Moore & Co (the “Benjamin Moore Appeal”) was released, yet no practice direction has been issued from the Canadian Intellectual Property Office (“CIPO”) to address the decision, and there is no consistency in the way that computer-implemented inventions are being examined. As the patent bar awaits a decision on the leave application to the Supreme Court of Canada, we provide our thoughts on the Federal Court of Appeal’s decision, and the missed opportunity it was.
February 16, 2024In 2020, following a series of recommendations released by the Law Commission of Ontario, the Ontario legislature passed substantial amendments to the Class Proceedings Act. Many of those amendments were drawn straight from the Law Commission’s report and were generally supported by most stakeholders.
January 19, 2024Our readers know that we maintain a database that includes information relating to every Supreme Court of Canada leave decision from January 1, 2018 onward. While we use that database to maintain a machine learning model to predict the likelihood of particular cases getting leave to appeal, we also use it to look at trends at the Court more generally. In this blog post, we provide a year in review of the Supreme Court of Canada’s leave application decisions in 2023.
January 15, 2024Lynne McArdle published the first issue of On the Docket: Cases to Watch, which features a collection of cases that move the law forward in some meaningful way. The cases in this edition are diverse in that they arise in different areas of the law: fraudulent conveyances, securities law, class actions, employment law, discovery, and Crown law.
December 22, 2023-
Recent years have seen a wave of reforms to the Competition Act being discussed and implemented. That wave has become a veritable tsunami with omnibus legislation introduced in Parliament in November 2023. That legislation proposes a number of fundamental changes to the Competition Act, which have the potential to dramatically impact Canadian businesses. While a detailed discussion of all of the amendments is beyond the scope of this blog post, perhaps the most interesting thing to litigators and businesses concerned about litigation risk, is the creation of what may prove to be a kind of pseudo-class action regime before the Competition Tribunal that ultimately allows consumers to recover losses as a result of certain types of reviewable conduct.
December 8, 2023Pleadings continue to be a popular battleground in the product liability context. Over the years, a body of law has developed respecting motions to strike for negligent design, negligent manufacture and failure to warn claims. Nevertheless, there continues to be debate as to the specificity needed for pleading these types of claims. That debate is fuelled in part by jurisprudence demonstrating a high tolerance for claims that are arguably vague and lacking in material facts. Even where a claim is struck, plaintiffs are routinely permitted to amend their pleading.
November 17, 2023On November 10, 2023, when the Supreme Court of Canada (“SCC”) released their decision in R v Greater Sudbury (City), the internet responded with widespread panic because, for the first time, the Court has confirmed that a project owner is an employer under Ontario’s Occupational Health and Safety Act (“OHSA” or the “Act”).
November 15, 2023A recent decision of the Ontario Court of Appeal illustrates how the doctrine of repudiation of contracts applies to buy-sell agreements. The Court found that a contract created under a buy-sell mechanism can be repudiated where one party's conduct undermines the integrity of the valuation machinery of the buy-sell.
November 14, 2023The complexity of regulating environmental impacts in Canada has proven to be a thorny issue on both constitutional and practical fronts. On the heels of 2021’s carbon pricing decision, the Supreme Court of Canada has again weighed in on how the division of powers can impact environmental regulation. This time, the Court considered the federal environmental assessment regime, ultimately finding that the federal legislation waded too far into provincial waters.
November 2, 2023Commercial disputes between professionals and their clients are routine. However, what is comparatively rare are disputes between the consultants (or other professionals) who advise a client and the client’s customers who may be harmed in some way by that client’s conduct. In those circumstances, there is generally no contractual relationship between the consultant and the client’s customer, and most cases have held that there is no duty of care between a professional and a person injured by the professionals’ client’s conduct. Lawyers, for example, have been held to potentially owe duties of care to non-clients in only the most exceptional circumstances. However, the recent decision of the British Columbia Supreme Court in British Columbia v McKinsey has the potential to substantially expand the scope of claims brought against professionals by persons allegedly harmed by those professionals’ clients’ conduct.
October 20, 2023On August 25, 2023, Canadians were advised that KLEENEX was blowing out of town and would no longer be available in Canada (see Globe & Mail article).
August 30, 2023The “Creativity Machine”, owned by Stephen Thaler, generated a work of art of its own accord. Thaler applied to register copyright in the artistic work titled ‘A Recent Entrance to Paradise’ with the United States Copyright Office. The application stated the Creativity Machine created the work and it was listed as the author. Thaler sought to transfer the copyright to himself as owner. The registration was denied.
August 22, 2023This blog post deals with two areas of law that are near and dear to my heart: class actions and appeals to the Supreme Court of Canada. The question I tackle in this post is whether class actions are more likely than other types of cases to be granted leave to appeal to the Supreme Court of Canada.
July 20, 2023Andrew Moeser will be sharing his expertise on patent enforcement at the joint Intellectual Property Institute of Canada and McGill University Summer IP Course. Andrew will lead a discussion on Patent Enforement: Infringement, as well as participate on a Mock Trial focused on Expert Reports and Cross-Examination of a Witness.
July 18, 2023-
In the recently released decision Boehringer Ingelheim Ltd v Jamp Pharma Corporation, Jamp brought a motion seeking an order that would require Boehringer to make their employee inventors attend to be examined for discovery, failing which the order could be enforced against Boehringer themselves. Boehringer argued that the Rules do not contemplate such an order. Associate Judge Duchesne agreed.
July 18, 2023Brendan F. Morrison & Emily RandThe King’s Bench for Saskatchewan has been turning heads and raising eyebrows 😲 following a recent decision on the legal force of emojis.
July 11, 2023The Commercial List Users’ Committee (CLUC) held its annual Education Day on June 7. The annual event offers an opportunity for members of the bar to gather with the Judges of the Commercial List to discuss current issues and best practices.
June 12, 2023In the recently released decision dTechs EPM Ltd v British Columbia Hydro and Power Authority and Awesense Wireless Inc, the Federal Court of Appeal (“FCA”) weighed in on the role and independence of experts in patent cases. In particular, the FCA provided guidance on (1) the role counsel may play in preparing expert reports; (2) an expert’s role in claim construction; and (3) the difference in the role of an expert where anticipation is alleged based on prior use versus prior publication.
May 31, 2023The philosopher Heraclitus observed that “the only constant in life is change”, a maxim as true for the business world as the natural world. Publicly traded companies operate in a dynamic environment, where commodity prices swing, new laws are passed, and scientific breakthroughs are made. So long as those companies wish to maintain their access to public markets, they must carefully consider how day-to-day happenings (and their own reactions to those events) affect their continuous disclosure obligations. These disclosure judgements are fact-specific and often fast-paced, yet they carry potentially significant consequences.
May 29, 2023Jonathan Chen & Caroline H. HumphreyA few years after the Supreme Court of Canada released Hollick v Toronto (City), which provided a detailed articulation of the common issues requirement under s. 5(1)(c) of the Class Proceedings Act, 1992, Ciara released her chart-topping single, “1, 2 Step”. While we would not go so far as to say that her single was one of the most succinct summaries of the common issues test from the early 2000s, she may have been on to something.
May 5, 2023Patent infringement cases are complex and technical, and historically Canadian courts were reluctant to endorse summary disposition in the patent context. However, in recent years there has been an increased trend towards the application of summary proceedings in this area. In particular, we have previously commented on decisions of the Federal Court (“FC”) (Canmar, Kobold, and Janssen) and Federal Court of Appeal (“FCA”) (Canmar and ViiV) that demonstrate the Court’s willingness to approve summary proceedings in patent cases under the appropriate circumstances. Last fall, the FCA decision in Gemak was interpreted by some commentators as a return to the historical position, but in our view, Gemak can be viewed as tapping the brakes on summary judgment rather than signalling a more sweeping reversal of the trend towards summary adjudication.
May 4, 2023Indirect infringement or “inducement” often arises in pharmaceutical patent infringement cases where a defendant generic manufacturer may not ultimately “use” the drug in question (i.e., directly infringe). Since 2011, the Federal Court of Appeal’s (“FCA”) Corlac Inc v Weatherford Canada Inc decision has frequently been cited as the leading authority for the tripartate test for inducement. In 2020, the Federal Court suggested that Corlac had changed the law of inducement—particularly at the second step determining influence—thereby requiring “a higher threshold for establishing inducement than was applied in the earlier cases”. In the recent decision of Teva Canada Limited v Janssen Inc (“Paliperidone”), the FCA has rejected that interpretation of Corlac. The FCA held that Corlac incorporates the same principles of inducing infringement as had been established in cases dating back to 1906. In doing so, it overturned the lower Court’s inducement determination based on a supposed higher standard and found that the defendant was liable for inducement when the Corlac test was properly applied.
April 13, 2023The use of generative artificial intelligence (AI) is on the rise and is receiving significant attention across disciplines and industries. The impact of generative AI spans various fields such as healthcare, gaming, education, marketing, visual arts, literature, music, banking and fashion, to name few. In the context of intellectual property law, where the focus is on innovation and creativity, generative AI raises countless complex questions. This blog post focuses on ChatGPT and copyright.
March 1, 2023Andrew Porter & Sean LewisShareholder agreements commonly contain buy/sell provisions establishing a process by which a shareholder can initiate a sale of their interest or can acquire the interest of another shareholder. The particulars of this process vary. Based on the parties’ bargain at the time the agreement is made, there are frequently unique and particular requirements to these provisions. The Ontario Superior Court of Justice emphasizes the importance of abiding by those requirements, as seen in a recent decision invalidating a purported closing of a share purchase transaction for the purchasers’ failure to comply with the specific process set out in the Shareholders’ Agreement. Justice Vella’s reasons in Leeder Automotive Inc v Warwick therefore offer an excellent reminder to shareholders that they disregard the requirements of a buy/sell provision at their peril.
February 10, 2023-
In a recent decision, Takeda Canada Inc v Apotex Inc, the Federal Court dismissed the Plaintiff, Takeda’s, motion for consolidation of two actions against Apotex relating to Takeda’s dexlansoprazole (DEXILANT) under section 6 of the Patented Medicines (Notice of Compliance) Regulations (the “PM(NOC) Regulations”).
January 30, 2023As many readers of our blogs know, we maintain a database that contains a wealth of information about every Supreme Court of Canada leave application decided from January 1, 2018 onward. That dataset allows us to provide a range of analysis and predictions relating to Supreme Court leave applications. But there is one fact that is apparent to all Supreme Court watchers that you don’t need a rich dataset to know: far fewer cases than usual got leave to appeal to the Supreme Court in 2022. The question this blog post tries to answer is: why?
January 20, 2023Last Friday, the Ontario Court of Appeal released decisions in Owsianik v Equifax Canada Co, Obodo v Trans Union of Canada, Inc, and Winder v Marriott International, Inc—a trilogy of decisions clarifying whether the tort of intrusion upon seclusion applies to the owners of databases when there are data breaches caused by third party hackers. Thankfully for database owners, the Court of Appeal concluded that intrusion upon seclusion cannot apply in those circumstances.
November 28, 2022Andrew Parley & Amy SherrardIn a recent decision, Hummel Properties Inc v Niagara-on-the-Lake (Town), the Ontario Court of Appeal affirmed that the Town of Niagara-on-the-Lake’s enactment of an interim control by-law (“ICBL”) was illegal. The decision, summarized below, has important implications for municipalities, developers, and builders across Ontario.
November 8, 2022Some things just go better together and probably always will, as Luke Combs sings in ‘Better Together’. Like a cup of coffee and a sunrise; Sunday drives and time to kill. Multiple section 8 actions however have not made the cut. According to the recent decision of Justice Southcott in Apotex Inc v Janssen Inc, multiple actions for section 8 damages should not have common issues heard together.
November 3, 2022Class actions are strange creatures, even to other lawyers.
October 28, 2022History has shown that recalls for product defects are often followed by a proposed class action lawsuit. While many products cases in that context have been certified, we have now seen certification of proposed class actions being denied on the basis that there is already an effective recall campaign in place. We have seen this in Maginnis and Magnaye v FCA Canada et al and Richardson v Samsung.
October 12, 2022It is often said that the Class Proceedings Act, 1992 is a procedural statute, not a substantive statute. What that means in practice is unclear, given that different procedural rules can have an impact on substantive outcomes. However, even a narrow version of that claim—that the Class Proceedings Act does not grant the Court jurisdiction to create or extinguish substantive rights beyond what the Court could do in an individual claim—is very much up for debate. There are increasing examples of creative judges using provisions under the Class Proceedings Act to take steps that impact substantive rights in a manner that would be impossible in an individual claim. The Court’s recent decision in Cavanaugh v Grenville Christian College presents such an example.
October 6, 2022Over 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, 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, 2022-
The 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, 2022Jordana Sanft & Kaitlin SoyeIn 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, 2022Madison Robins & Caroline H. HumphreyThe 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, 2022Earlier 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, 2022-
Historically, 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, 2022Paul-Erik Veel & Katie GlowachIn 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, 2022Amy SherrardThe 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, 2022Jordana Sanft & Kaitlin SoyeIn 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, 2022The 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, 2022-
On 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, 2022Scott Rollwagen & Kaitlin SoyeIf 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, 2022Andrew Moeser & Kaitlin SoyeOn 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, 2022Andrew Moeser & Kaitlin SoyeThe 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, 2022The 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, 2021-
The 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, 2021Sana Halwani & Jacqueline ChanIn 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 (
