E-TIPS

On July 15, 2022, the Supreme Court of Canada (the SCC) issued its decision in Society of Composers, Authors and Music Publishers of Canada v Entertainment Software Association, 2022 SCC 30, in which it unanimously affirmed the decision of the Federal Court of Appeal finding that the Copyright Act (the Act) only requires users to pay one royalty fee to stream works online. The Court also revised the standard of review for decisions where an administrative body and courts share concurrent first instance jurisdiction over questions of law.

On July 13, 2022, the Office of the Superintendent of Financial Institutions (OSFI) released its final Guideline B-13: Technology and Cyber Risk Management (Guideline B-13), which describes OSFI’s expectations for how federally regulated financial institutions (FRFIs) should manage technology and cyber risks.

On July 20, 2022, Health Canada published amendments to the Food and Drug Regulations in the Canada Gazette Part II. The amendments add new regulations for supplemented foods. Supplemented foods are prepackaged foods containing one or more added ingredients, such as vitamins, minerals, amino acids, or caffeine, and are marketed as providing a specific physiological or health effect. The primary target for these regulations is consumer energy-type beverages, which have been treated inconsistently and, on an ad-hoc basis for many years. The new supplemented foods regulations came into force on July 20, 2022 but have a transition period to January 1, 2026.

On July 20, 2022, Health Canada published long-expected amendments to the Food and Drug Regulations in the Canada Gazette Part II. The amendments add a new requirement for front-of-package (FOP) nutrition symbol labelling for most prepackaged foods that are high in saturated fat, sugars and/or sodium. The new labelling requirements come into force immediately, on July 20, 2022; however, the food industry has been given a transitional period of until December 21, 2025, to meet the new requirements.

On July 6, 2022, amendments to the Natural Health Products Regulations were published in the Canada Gazette Part II. The amendments introduce new labelling requirements for natural health products (NHPs) sold in Canada. Health Canada also published a guidance document to help organizations comply with the amended labelling requirements. These new labelling requirements are set to come into force in three years (i.e. on July 6, 2025) with product license holders having an additional three years from that date to amend their NHP labels to comply with the new requirements.

On June 30, 2022, the Ontario Court of Appeal (the Court) issued its decision in Demme v. Healthcare Insurance Reciprocal of Canada, 2022 ONCA 503 (Demme), confirming that a commercial liability insurer had no duty to defend against claims that were based on the tort of intrusion upon seclusion.

On June 23, 2022, Bill C-19, The Budget Implementation Act, 2022 received royal assent. The Bill includes proposed amendments to the Copyright Act. The amendments extend the term of copyright protection in literary, dramatic, musical, artistic works and certain works of joint authorship and posthumous works from the life of the author plus 50 years to the life of the author plus 70 years. The amendments will come into force on a date to be determined by the federal cabinet.

On June 23, 2022, the Federal Court of Canada (the Court) in Rovi Guides Inc. v. Videotron Ltd, 2022 FC 874, dismissed Rovi Guides Inc.’s (Rovi) infringement action against Videotron Ltd (Videotron) with respect to four patents relating to interactive television program guide (IPG) technology. The Court granted Videotron’s counterclaim, held that all of the asserted claims of Rovi’s four patents are invalid on various grounds and concluded in obiter that Rovi would not have been entitled to an accounting of profits if its patents were found to be valid and infringed.

On June 3, 2022, the Supreme Court of British Columbia (the Court) issued its decision in Campbell v. Capital One Financial Corporation, 2022 BCSC 928 (Campbell), certifying a class action lawsuit against Capital One Financial Corporation (Capital One).

On June 7, 2022, the Federal Court of Canada (the Court) released its decision in Anheuser Busch, LLC v H.O.W. Medical Solutions Ltd., 2022 FC 842, in which it set aside the decision of the Trademarks Opposition Board (the Board) refusing the request by Anheuser-Busch, LLC (Anheuser-Busch) to amend its statement of opposition. The Court determined that there were palpable and determinative errors in the Board’s decision to refuse Anheuser-Busch’s request.

On June 27, 2022, the Office of the Privacy Commissioner of Canada, along with fellow members of the Global Privacy Assembly’s International Enforcement Cooperation Working Group (IEWG), released guidance documents to help individuals and organizations protect against credential stuffing attacks.

Certain amendments to Canada's Trademarks Act are expected to come into force shortly, which will have a significant impact on the ability to clear "deadwood" official marks currently on the Register. Subsection 9(4) of the Trademarks Act gives the Registrar of Trademarks the authority to give public notice that the protections of the Act which govern official marks do not apply to a particular official mark. The Registrar may give such notice if the holder of the official mark is not a public authority or no longer exists. This section, however, is not yet in force. In anticipation of this section coming into force in the near future, the Canadian Intellectual Property Office (CIPO) has recently released a draft of a Practice Notice introducing a new procedure on how it will exercise its authority.

On June 17, 2022, the Federal Court of Canada (the Court) in Benjamin Moore & Co. v Attorney General Of Canada, 2022 FC 923, allowed the appeals from two decisions of the Commissioner of Patents (the Commissioner) refusing patent applications as not being directed to a patentable subject matter under the Patent Act. The Court concluded that the Commissioner applied the wrong legal test for claim construction and patentable subject matter, remitted the matter back to the Canadian Intellectual Property Office (CIPO) for determination, and instructed the Commissioner on the proper legal assessment for claim construction and patentable subject matter.

On June 16, 2022, the Government of Canada introduced Bill C-27, the Digital Charter Implementation Act, 2022. Bill C-27 is the second attempt at overhauling Canada’s federal privacy legislation, the Personal Information Protection and Electronic Documents Act. Bill C-11, the Digital Charter Implementation Act, 2020, was the first major overhaul of Canada’s privacy regime, as previously reported by the E-TIPS® Newsletter here, but died on the order paper with the announcement of the 2021 federal election.

On May 27, 2022, the Federal Court of Canada (the Court), in Rogers Media Inc. v John Doe 1, 2022 FC 775, issued a “dynamic” site blocking Order preventing access to streaming servers that provide unauthorized streams of National Hockey League (NHL) games in real time. This ruling represents the first dynamic site blocking order granted in Canada.

On June 14, 2022, the Government of Canada introduced Bill C-26, An Act Respecting Cyber Security, which would enact the Critical Cyber Systems Protection Act (the CCSPA) to establish a regulatory cyber security framework and improve baseline security for vital public systems and services.

On June 2, 2022, the Government of British Columbia (B.C.) passed the Anti-Racism Data Act (the Act). B.C. is the first province in Canada to pass legislation that provides for the collection, use, and disclosure of personal information by public bodies (within the province) for the purposes of identifying and eliminating systemic racism and advancing racial equity.

On June 1, 2022, the Office of the Privacy Commissioner of Canada and the provincial privacy commissioners of Alberta, British Columbia and Québec (collectively, the Commissioners) released their findings of a joint two-year investigation into the Tim Hortons mobile ordering application (the App), as previously reported by the E-TIPS® Newsletter here. The Commissioners determined that the App violated applicable federal and provincial privacy laws by collecting location data of its users, without their adequate knowledge or valid consent.

On June 2, 2022, the Rules Amending the Patent Rules were registered by Order in Council, and most provisions will come into force on October 3, 2022. As previously reported by the E-TIPS® Newsletter here, the new Rules are intended to streamline patent examination, reduce patent pendency, and avoid unreasonable delays to assist with the implementation of Canada’s patent term adjustment (PTA) obligation under the Canada-United States-Mexico Agreement (CUSMA).

On June 9, 2022, the Office of the Superintendent of Financial Institutions (OSFI) published its summary response to feedback received from stakeholders regarding draft Guideline B-13: Technology and Cyber Risk Management (Guideline B-13), that will apply to federally regulated financial institutions, as previously reported by the E-TIPS® Newsletter here.