Section Article Round-up

Administrative Law

Privileged politicians

In Ontario (Premier) v. Canada (Commissioner of the Public Order Emergency Commission), 2022 FC 1513, the Federal Court ruled that Ontario Premier Doug Ford and Deputy Premier Sylvia Jones did not need to testify at the Emergencies Act inquiry because of parliamentary privilege. Christopher Wirth and Alex Smith of Keel Cottrelle LLP, have the details about what this decision means.

From Vavilov to unconscious bias, and does Justice Mahmud Jamal ever sleep?

Read this lively summary of the CBA Administrate Law, Labour and Employment Law Conference by Joseph Redman, partner with Shores Jardine LLP. Lawyers and speakers from British Columbia to Newfoundland escaped unseasonal cold snaps, blizzards, and fog to converge on our nation’s capital, which was practically balmy by comparison. Over two days, presenters covered a wide range of legal topics and trends, and there was plenty of opportunity to meet and speak with like-minded colleagues from across the country.

Commodity Tax, Customs and Trade

British Columbia provincial sale tax doesn’t apply to federal luxury tax

British Columbia has announced that, in its 2023 Budget, it intends to introduce retroactive legislation to “confirm” that the B.C. provincial sales tax (PST) does not apply to the federal Select Luxury Items Tax (Luxury Tax). Alan Kenigsberg, Héléna Gagné and Roger Smith of Osler, Hoskin & Harcourt LLP, explain what it means.

Construction and Infrastructure Law

Additional risk in condo construction

It’s well established that a general contractor can be found liable to subsequent condo owners for latent defects posing a real and substantial danger to occupants, but can a developer be liable to subsequent condo owners for these same defects? This was the issue before the Alberta Court of Appeal in Condominium Corporation No. 0522151 (Somerset Condominium) v JV Somerset Development Inc, 2022 ABCA 193. While the Court did not make a determination on this issue, it left the door open to expand the scope of Winnipeg Condominium Corporation No. 36 v Bird Construction Co., 1995 CanLII 146 (SCC), [1995] 1 SCR 85, 121 DLR (4th) 193 (“Winnipeg Condos”). The Court also gives guidance on what circumstances might give rise to developer liability in this context. Catriona Otto-Johnston and Carter Czaikowski of Rose LLP explain what that means.

When is the end?

The purpose of adjudication under the Construction Act of Ontario (“the Act”) is to resolve on site disputes on an interim basis so that trades are paid what they are due, and projects continue on, uninterrupted. As construction law expert David Debenham explains, it follows that after the trade’s contract is complete, adjudication serves no purpose as the trade is no longer needed on the project, and more traditional remedies can avail the trade without delaying the project as a whole. But what if a party tries to avoid adjudication by terminating or abandoning a contract?

Easy as Pi

The Law is easy, writes construction law expert David Debenham. Piercing the perplexing prolix prose pronouncements of presiding prefects of public jurisprudence often is not. What can the Tall Ships case tell us about how higher courts should go about deciding what to review?

Intellectual Property

The following case summaries were submitted for this quarter:

Case summary: Serena Fashions

Case summary: Sani Bleu

Case summary: Motion to amend a Statement of Defence granted

Case summary: Reviewing Anton Pillar Order Execution

Case summary: Removal of USA from PMPRB Comparators accepted on appeal

Case summary: Legal test for assessing use of a mark for services in Section 45 proceedings clarified

Case summary: Federal Court exercises discretion not to decide a question of law prior to trial, despite the elements of the test being met

Case summary: Federal Court denies motion for Norwich Order for discovery of defendant’s same corporate representative that had already been produced during examination for discovery

Case summary: Substantive motion in writing before the Federal Court of Appeal

Case summary: It’s not too late for reply

Case summary: Federal Court finds patent for selective herbicidal composition of flucarbazone valid and infringed

Case summary: Lump sum costs not appropriate for procedurally straight forward JR

Case summary: Bifurcation not appropriate in copyright infringement action

Rule 120 Motion: Non-adherence to the Rules weighs against granting relief

Inappropriate to vary confidentiality order without relief from implied undertaking

Case summary: Federal Court dispenses with formal requirements to bring motion for interlocutory relief

Case summary: Strategies adopted during patent prosecution may affect ability to access equitable remedies

Case summary: Federal Court declares vexatious litigant after lengthy patent dispute and multiple appeals

Case summary: Federal Court rejects defence of acquiescence and grants the relief sought by applicant; invalidation, damages and an injunction

It’s a palpable error, but it’s not overriding

Mandatory leave to appeal from interlocutory decisions under the PM(NOC) Regulation

Federal Court offers guidance on opponent’s burden and reliance on applicant’s evidence in trademark opposition

Case summary: Federal Court grants application to add inventor to issued patent

Case summary: Federal Court grants a motion for blocking access to FIFA World Cup live match for unauthorized streaming servers

Case summary: Court awards elevated statutory damages in copyright infringement claim involving social media posts

Case summary: Court finds that new evidence regarding foreign markets is not material in appeal of Canadian opposition proceeding

Case summary: Motion to have certain evidence in three PMNOC Section 8 actions heard together dismissed

Case summary: Federal Court Crocs ruling

Case summary: Federal Court Crocs decision in confidentiality order

Case summary: Federal Court finds that CMJ erred in applying the legal principles for personal liability of a corporation’s directors to a general partnership context

Federal Court overturns Trademark Registrar’s decision to expunge WATCHFINDER trademark

Federal Court orders sample production despite earlier production in corresponding US litigation

Law Students

Check your mental health as early as law school

As incoming law students, writes Oksana Romanov, we need to look out for our mental health and wellness. There are at least three reasons why we should do that early on in our legal career and especially because of the pandemic.

Privacy and Access Law

Privacy in the age of digital marketing and analytics

A recent decision by the Office of the Privacy Commissioner of Canada (OPC) illustrates the complex and often ambiguous nature of consent under Canadian federal privacy legislation, the Personal Information Protection and Electronic Documents Act (PIPEDA). It also highlights key implications for Canadian retailers processing data as part of their digital marketing and analytics efforts, using offline conversion tools. Eloïse Gratton, François Joli-Cœur and Andy Nagy of BLG have more.