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

The Federal Courts Rules provide a summary judgment procedure that allows a party to prevent claims or defences that have no chance of success from proceeding to trial. Although the summary judgment procedures were amended a year ago, a recent decision of the Federal Court demonstrates that summary judgment is still only granted in the most appropriate cases.

In Concept Developments Ltd. v. Webb, the plaintiff (Concept), a designer and builder of homes, brought a motion for summary judgment against the defendants, Mr. and Mrs. Webb, alleging infringement of its registered copyright in the plans and design of one of its model homes. The Webbs had apparently viewed Concept’s model home, but disliked Concept’s quoted price to build the house, so they subsequently took their business to another home building company (High Grade). According to the facts (which had not been fully established), the Webbs showed Concept’s model home design to High Grade and requested something similar for their house, albeit with some modifications. The Webbs then drew up what they wanted, gave that drawing to High Grade, and the house was subsequently built as desired. Concept claimed $124,000 for its direct loss from not building the home, as well as $40,000 for intangible loss. 

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Geoffrey North & Catherine Newnham

The Supreme Court of Canada released a decision on January 20, 2011 in Celgene Corp. v. Canada (Attorney General), 2011 SCC 1 that may have a chilling effect on the availability of medicines under Health Canada’s Special Access Program (SAP).

The SAP

Most medicines are sold in Canada after Health Canada has satisfied itself as to the medicine’s safety and effectiveness, and has issued a notice of compliance (NOC) to the drug’s manufacturer. However, where Health Canada has not granted a NOC for a medicine, or where a manufacturer has not yet applied for one, medicines may in certain cases be sold to medical practitioners through an alternate route – the SAP – a program that allows access to drugs for the treatment of “serious or life-threatening conditions where conventional therapies have failed, are unsuitable, or are unavailable either as marketed products or through enrolment in clinical trials”.There is no limit on the period of time that a manufacturer may supply a medicine under the SAP, nor is there a limit on the volume of sales that can be made pursuant to the SAP.The manufacturer is simply authorized to sell the medicine for use by the specific patient or clinical trial identified in a special request, if Health Canada approves the request for sales pursuant to the SAP.

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Yesterday, Facebook reached an agreement with German data protection officials in order to end a dispute over the social networking site’s “Friend Finder” application. Hamburg’s Data Protection Authority received complaints about the feature, which allows Facebook to send unsolicited email invitations to non-members through current members’ address books. The agreement comes as a response to legal proceedings launched by German officials last year against Facebook for accessing and saving the private data of non-members without their permission. For more information, see this article from the Globe and Mail.

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The Federal Court of Appeal has upheld the validity of section 30(3) of the Food and Drugs Act and section C.08.004.1 of the Food and Drug Regulations (known as the Data Protection Regulations) in its decision in Apotex Inc. v. The Minister of Health, 2010 FCA 334. 

The Data Protection Regulations (DPR) were designed to clarify and implement Canada’s obligations under the data protection provisions of the North American Free Trade Agreement (NAFTA) and the Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPS). The DPR introduced a guaranteed period of market exclusivity of at least eight years for manufacturers of “innovative drug[s]”.  More particularly, the DPR prohibits a generic manufacturer seeking a notice of compliance (NOC) for a new drug “on the basis of a direct or indirect comparison  between the new drug and an innovative drug” from filing a New Drug Submission (NDS) “before the end of a period of six years after the day on which the first notice of compliance was issued to the innovator in respect of the innovative drug”.  In addition, the DPR prohibits the Minister of Health from issuing a NOC to a generic drug manufacturer “before the end of a period of eight years after the day on which the first notice of compliance was issued to the innovator in respect of the innovative drug”. Thus, generic drug manufacturers cannot obtain approval for their generic drug until the period of market exclusivity of the innovative drug has expired, even where there is no patent protection for that drug.

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In a Broadcasting Notice of Consultation issued on January 10, the CRTC indicated that it is seeking comments for the amendment of several regulations to allow for more leeway in broadcasting false or misleading news. According to the CRTC, it is considering these amendments because of the Parliament’s Standing Joint Committee’s concern that the existing prohibitions on broadcasting false or misleading news is too broad and vague. Fearing that it would not withstand a Charter challenge, the CRTC was urged by the Committee to revise the language of the regulations.

Currently the regulations prohibit the broadcasting of “any false or misleading news” whereas if the proposed language to the amendments were accepted, it would lower the standard to "any news that the licensee knows is false or misleading and that endangers or is likely to endanger the lives, health or safety of the public." In other words, a broadcaster would be permitted to air news that it knows is false or misleading as long as it does not endanger the lives, health or safety of the public.

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A Tweet may represent a mere 140-characters; however a recent investigation in the UK is exposing that those 140-characters can represent big money. In July, 2010, the Office of Fair Trading (UK) (OFT) launched an investigation on its own initiative into Handpicked Media (Handpicked), a self-described “Collective of independent sites and blogs with a focus on publishers”, due to suspicion that it was engaging and paying individuals for online promotional activity in circumstances where such remuneration was not clearly disclosed to consumers. It was the OFT’s view that Handpicked was operating in breach of the Consumer Protection from Unfair Trading Regulations 2008 (CPUTR) which prohibits the use of editorial content in the media, including Twitter, blogs and other social networking websites, for the purpose of product promotion where the promoter has been paid, unless such payment is clearly identifiable to the consumer.

Sections 5(1) and 5(2)(a) of the CPUTR state that “A commercial practice is a misleading action if it … causes or is likely to cause the average consumer to take a transactional decision he would have not taken otherwise” and such action is prohibited. The regulations also include prohibitions against “misleading omissions” which may be triggered where a Tweeter, Blogger or the like fails to indicate that he or she has been paid to publish their opinion of a particular product. The OFT investigation into Handpicked’s practices was closed on December 13, 2010.  Handpicked was forced to sign undertakings prohibiting it from engaging in any future promotion without clearly identifying that the promotion has been paid for or otherwise remunerated.

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A recent decision of the Federal Court emphasizes that defendants bear a significant burden in setting aside default judgments that arise because the  defendant has simply failed to file a statement of defence within the allotted period of time.

In Molson Canada 2005 (An Ontario General Partnership) and Coors Brewing Company v. Drake J. Beachamp, the defendant was the owner and operator of a leather retail business, selling purses, belts, belt buckles and wallets from kiosks at shopping malls and special events.  Molson commenced an action against the defendant, claiming that he sold counterfeit product bearing its unauthorized trademark.  The defendant failed to file a statement of defence, and default judgment was accordingly granted against him.  The judgment ordered the defendant to deliver up all counterfeit goods, and also ordered that general damages, punitive damages, and costs be paid to Molson.

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