Section Article Round-up

In this issue

Administrative Law

Delays in administrative proceedings

The facilitation of access to justice is an important goal for administrative bodies including tribunals and regulators, writes Billeh Hamud, Legal Counsel with the Social Security Tribunal of Canada. However, too often, cases can take several months and, in some cases, years to conclude. Delay in administrative proceedings are under consideration in Law Society of Saskatchewan v. Peter V. Abrametz, which offers much needed guidance to administrative bodies on the issue of delay, especially in light of the Supreme Court of Canada’s earlier decisions in Jordan and Hryniak.

The lessons of OK v. Highlands

In O.K. Industries Ltd. v. District of Highlands, 2022 BCCA 12, the British Columbia Court of Appeal (“BC Court of Appeal”) applied a correctness standard of review to a question falling outside the recognized categories of exceptions to the presumption of reasonableness, making it the first time a court has done so since the Supreme Court of Canada’s decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (“Vavilov”). Christopher Wirth and Alex Smith of Keel Cottrelle LLP have the details.

Commodity Tax, Customs and Trade

Taxing the rich

On March 11, 2022, the federal government released draft legislation to implement a select luxury items tax (Luxury Tax). The Luxury Tax was originally proposed in the 2021 Federal Budget. As explained in Budget 2021, the Luxury Tax is only intended to apply to certain aircraft, vehicles, and vessels based on their price and use. Budget 2021 originally proposed a starting date of January 1, 2022, for the Luxury Tax. The draft legislation has, unsurprisingly, pushed that start date to September 1, 2022. Héléna Gagné, Alan Kenigsberg, Ilana Ludwin and Roger Smith of Osler, Hoskin & Harcourt LLP have the details.

Online sellers as tax collectors

On February 22, 2022, British Columbia (B.C.) Finance released its 2022 budget and accompanying draft legislation, which proposed new provincial sales tax (PST) rules regarding “online marketplace facilitators.” As Zvi Halpern-Shavim and David Lam of Blakes explain, these new rules effectively make online marketplace facilitators liable to collect and remit PST on sales made by marketplace sellers through online sales platforms and deem as taxable many of the services provided by online marketplace facilitators to their sellers.

Importing into Canada

The CBSA has been developing new tools to actively target importers and import transactions involving suspected or known non-compliance. The new tools are effective as of January 1, 2022 and so importers may start to receive “TANs,” “CVLs” or “DCLs” that require action. Greg Kanargelidis of KANARGELIDIS Global Trade & Customs Law explains what it means.

Canada-UK Trade Agreement in the works

The United Kingdom is a significant trading partner for Canada, writes Greg Kanargelidis of KANARGELIDIS Global Trade & Customs Law, and since its exit from the European Union the two countries have had a number of arrangements in place to maintain the status quo until a permanent trade agreement could be negotiated. This next stage in the process finally arrived on March 24, 2022, when the two countries jointly announced that negotiations were to begin as of March 28 and the expectation is that a permanent free trade agreement will be concluded within two years.

New commodity tax measures

On April 7, 2022, the Government of Canada unveiled its 2022 federal budget and announced certain important commodity tax measures. Budget 2022 includes proposed amendments to past proposals, as well as some completely new rules. Jean-Guillaume Shooner and Alexandra Iannarino of Stikeman Elliott run through the highlights from a commodity tax standpoint.

Sometimes it pays to be noxious

As It is well known that imported clothing is subject to high duty rates of 18% unless some relieving provision applies to reduce or eliminate the tariff. But for special purpose garments, such as protective suits and gloves for use in a “noxious atmosphere,” the goods can be imported on a duty-free basis. So, being “noxious” turns out to be beneficial, at least from a customs duties perspective. Greg Kanargelidis of KANARGELIDIS Global Trade & Customs Law has the details.

All that glitters is not gold

Taxpayers are generally barred from public law remedies, explain Robert G. Kreklewetz and Shahrukh Khowaia of Millar Kreklewetz LLP, and the equitable restitutionary remedies against the Crown are available in only the most exceptional cases.

Criminal Justice

One size does not fit all

As criminal lawyer Jody Berkes explains, Bill C-5 is the first tentative step in addressing the one size fits all approach to mandatory minimum sentence. The Bill provides a judge the discretion to sentence in an individualized manner that encompasses denunciation, deterrence, a sense of responsibility, rehabilitation, and restorative justice. It needs to move forward.

The role of international law in Ukraine’s fight against Russian aggression

While a state’s right to use force in individual and collective self-defence is firmly established in international law, there exists no right to intervene by force into the territory of another state for humanitarian reasons without that state’s consent or authorization of the UN Security Council. Dr. Gaiane Nuridzhanian and Lee-Ann Conrod explain what it means.

Intellectual Property

The following case summaries were submitted for this quarter:

Case summary: Federal Court orders compensatory and punitive damages on summary trial involving sale of counterfeit goods

Case summary: The Federal Court addresses registrability of laudatory trademarks

“Functionally equivalent” infringement amendments prior to trial denied

Lump sum costs appropriate for mostly successful party on summary trial

Online advertising patent decision

Case summary: Expert opinion evidence on ultimate issue in a judicial review proceeding struck

Case summary: Federal Court applies the competence-competence principle, stays proceeding in favour of arbitration in Bermuda

Case summary: Unreliable evidence resulted in invalidation of trademark registration

Case summary: Section 31 exemption only applies to retransmitters

Case summary: Pharmascience Inc. v. Teva Canada Innovation

Case summary: Federal Court orders damages for trademark infringement on a motion for default judgment

Case summary: The Federal Court of Appeal rules no copyright infringement of jewelry designs

Case summary: Federal Court of Appeal upholds statutory damages and punitive damages in copyright infringement case

Case summary: Federal Court finds patent infringed on motion for summary trial

Case summary: Federal Court concludes less Cowbell needed

Appeal dismissed regarding the issuance of ex parte interim orders

Apotex successful in arguing for summary trial but Janssen ultimately successful in establishing infringement by inducement

Case summary: Federal Court expunges MILANO PIZZERIA & Design trademark registration

Case Summary: Federal Court finds trademark for line of latitude not registrable in an unparalleled decision

Federal Court decides in favour of IP owner in trademark application

Multi-million cost award following INVEGA SUSTENNA® patent litigation

Case summary: Fruit of the Loom v LRC Products Limited

Apotex accepts product provides pharmaceutically effective absorption if taken with or without food

Concession on remedies tilts balance away from bifurcation

Case summary: Court finds no likelihood of confusion despite previous successful opposition

Privacy and Access

The privacy paradox

Caroline Ross, third-year law student at Queen’s University Faculty of Law, discusses the ins and out of the social and legal implications of how consumers manage their online privacy expectations.

Young Lawyers

The virtual YLIP experience

The COVID-19 pandemic has upended life for many of us in various ways, explains Chloe Quirion. In just a few months, life as we knew it took a drastic turn and forced many of us to rethink our plans and get creative about how to make them happen.