Canadian Technology & IP Law : Canadian Technology Lawyers & Attorneys : Stikeman Elliott Law Firm : IP Law in Toronto, Montreal, Calgary, Ottawa & Vancouver

On January 30, 2009, the Federal Court of Appeal (FCA) clarified the circumstances under which a partial waiver of privileged material can result in an implied complete waiver of privilege. The FCA's decision in Merck & Co. Inc. et al. v. Apotex Inc. et al. (2009 FCA 27) was an interlocutory decision in a patent infringement case.

The issue arose in the context of examination for discovery in respect of the patent dispute, which relates to the manufacture of a drug called lovastatin. This drug is produced by certain micro-organisms, and the production of lovastatin from the Aspergillus terreus micro-organism is covered by a Canadian patent owned by the plaintiff, Merck & Co. Inc. (Merck). Merck had apparently carried out some tests, for the purpose of the litigation, to improve its understanding of the process used by the defendants. As the tests were conducted for the purpose of the litigation, information about the tests qualified for protection under the litigation privilege. The purpose of the litigation privilege is to create a zone of privacy in relation to pending or apprehended litigation, to facilitate investigation and preparation of a case for trial by the adversarial advocate.

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In October 2008, the Ontario Superior Court of Justice confirmed that a foreign entity that merely licenses its Canadian trademarks in Ontario is not sufficiently connected to Ontario for an Ontario court to assume jurisdiction over the licensor.

The case of Charron v. Bel Air Travel Group Ltd. [(2008) 92 O.R. (3d) 608] arises from the unfortunate death of an Ontario man, which occurred while he was scuba diving at an all-inclusive vacation resort in Cuba.  His wife and children brought the claim in Ontario against numerous defendants, including the travel agent and tour operator, which were based in Ontario (the Canadian defendants); the owner of the Cuban resort and several employees of the resort (the Cuban defendants); the operator of the Cuban resort, which arranged to market the resort in Canada (Operator Defendant); and the licensor of the trademarks under which the resort operated (Licensor Defendant). Both  the Operator Defendant and the Licensor Defendant  are companies incorporated in the Cayman Islands.

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The Quebec Court of Appeal's decision in Gotar Technologies Inc. v. Arseneault emphasizes that a non-compete clause and assignment of intellectual property to an employer cannot be interpreted so broadly that a person is prevented from earning a living in a similar field once the relationship with the employer is over. Moreover, a business opportunity that is rejected or not developed by an employer may be fair game for development by former employees.

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Even when it's sitting on your property awaiting collection, garbage - and the private information it contains - may be vulnerable to police and public scrutiny

Karen E. Jackson, Wesley Ng and Andrew Cunningham

R. v. Patrick
Supreme Court of Canada, 2009 SCC 17 (April 9, 2009)

This Supreme Court of Canada ruling, which arose in the context of a criminal drug prosecution, underscores the importance of careful disposal of documents containing confidential information or other information that could potentially be embarrassing or damaging to your company's interests. The essence of the Court's ruling is that waste left for disposal "at the curb" - and the information it contains - is fair game for police search and seizure, and arguably for perusal by reporters or members of the general public as well. Even where trash is left for pick up on your own private property, it can be vulnerable if it can easily be reached from public property. The lesson is never to dispose of sensitive material by leaving it for pick-up on the periphery of one's property. Lockable bins, fencing, signage and other indicia of an intention to maintain control of refuse until it can be securely transferred into disposal vehicles are key to keeping your trash out of the hands of those who would recycle it into a gold mine of information about your business.

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