E-TIPS

Introduction Privacy in Canada is rapidly evolving. Deeth Williams Wall wants to keep you apprised of the latest changes so you may prepare your organization’s compliance activities before legislation comes into effect. This Advisory summarizes actionable elements of the recently passed Québec privacy legislation with commentary on the expected federal privacy legislation.

On September 22, 2021, Quebec’s major privacy reform bill, An Act to modernize legislative provisions as regards the protection of personal information (Bill 64), received royal assent after being adopted by the Quebec National Assembly the day before.

Louis (Satchmo) Armstrong was an iconic jazz musician. Jim Morrison, was an iconic rock musician. They share an interesting tie relating to Canada, even though history does not record them ever having had a joint musical appearance.

On September 8, 2021, Canada’s Federal Court of Appeal (FCA) in Salna v. Voltage Pictures, LLC, 2021 FCA 176, unanimously reversed the Federal Court’s (FC) decision dismissing Voltage Pictures, LLC’s (Voltage) motion for certification of a reverse class action proceeding alleging file-sharing copyright infringement. The FCA acknowledged the novelty of the proposed reverse class action and noted that "the law must adapt to the evolving digital environment, the channels through which artistic endeavour is expressed and the means by which copyright may be infringed".

On September 16, 2021, the Court of Queen’s Bench of Alberta (the Court) issued its decision in ES v Shillington, 2021 ABQB 739 (Shillington), recognizing, in Alberta, the tort of Public Disclosure of Private Facts.

On September 2, 2021, the Irish Data Protection Commission (DPC) announced that it adopted an infringement decision against WhatsApp Ireland Ltd. (WhatsApp), issuing a €225 million fine against WhatsApp for breach of the European Union’s General Data Protection Regulation (EU GDPR). The DPC found that WhatsApp breached its transparency obligations and provided insufficient detail about their data sharing and processing operations, infringing articles 5(1)(a), 12, 13 and 14 of the EU GDPR.

On September 8, 2021, the Federal Court of Canada (the Court) issued its decision in Norsteel Building Systems Ltd. v Toti Holdings Inc., 2021 FC 927, in which it granted an application by Norsteel Building Systems Ltd. (NBS) to expunge the trademark NORSTEEL from the register.

On September 7, 2021, the Office of the Information and Privacy Commissioner of Ontario (IPC) issued its response to the Ontario government’s white paper on proposals for a provincial private sector privacy law, as previously reported by the E-TIPS® Newsletter here.

On September 2, 2021, the United States District Court for the Eastern District of Virginia (the Court) in Thaler v Hirshfeld, No. 1:20-cv-903 held that an artificial intelligence (AI) machine cannot be an “inventor” under current US patent law.

On July 21, 2021, the Federal Court of Canada (the Court) issued its decision in Seismotech Safety Systems Inc. v Forootan, 2021 FC 773, refusing to grant Seismotech Safety Systems Inc. (Seismotech) an ex parte anti-suit injunction to prevent Mr. Iradj Forootan from starting or continuing litigation in respect of six Canadian patents in any other court. The Court noted that an anti-suit injunction is an extraordinary and discretionary remedy that should only be granted rarely, given its impact on judicial comity.

On July 12, 2021, the Federal Court of Canada (the Court) in Toronto Regional Real Estate Board v R E Stats Inc. (Redatum), 2021 FC 735, granted the Toronto Regional Real Estate Board’s (TRREB) motion for default judgment for copyright infringement relating to the TRREB Multiple Listing Service and related online systems (TRREB MLS® System), awarding $50,000 in damages.

On August 10, 2021, the Federal Court of Canada (the Court) issued its decision in Bell Canada v L3D Distributing Inc., 2021 FC 832, in which it granted the plaintiffs’ motion for default judgement, awarding over $29 million in statutory damages for copyright infringement relating to pre-loaded set-top boxes and internet protocol television (IPTV) services, and finding the defendants knowingly induced infringement. This decision appears to be the first time the Court has applied the common law inducement test in the context of copyright infringement.

On August 13, 2021, the Office of the Superintendent of Financial Institutions (OSFI) issued an updated Technology and Cyber Security Incident Reporting Advisory (Advisory) governing the requirements for federally regulated financial institutions (FRFIs) in Canada to report technology and cyber security incidents to OFSI. OSFI is an independent federal government agency that regulates and supervises FRFIs, including all banks, insurance companies and federally incorporated or registered trust and loan companies.

On July 28, 2021, the Federal Court of Appeal of Canada (the Court) issued a decision in the case of Seedlings Life Science Ventures, LLC v. Pfizer Canada ULC, 2021 FCA 154. In this appeal, Seedlings Life Science Ventures, LLC (Seedlings) challenged the Federal Court’s finding that the claims at issue of Seedling’s patent were invalid for overbreadth.

On August 12, 2021, Canada’s Federal Court of Appeal (FCA) in Bauer Hockey Ltd. v Sport Maska Inc. (CCM Hockey), 2021 FCA 166, upheld the Federal Court’s (FC) finding that the claims in issue regarding Bauer Hockey Ltd.’s (Bauer) patent were invalid for obviousness, as previously reported by the E-TIPS® Newsletter here.

Significant delays in examination of Canadian trademark applications continue, both for reasons related and unrelated to the pandemic. Backlogs in first examination of most applications are getting worse, with first examination ranging from 16-32 months from filing or more. It is like watching a snail pause to catch its breath.

On July 29, 2021, the Supreme Court of Canada (SCC) in Grant Thornton LLP v New Brunswick, 2021 SCC 31, clarified that a claim is discovered, and the limitation period begins to run, when the plaintiff has actual or constructive knowledge “of the material facts upon which a plausible inference of liability on the defendant’s part can be drawn”.

On July 30, 2021, in York University v Canadian Copyright Licensing Agency (Access Copyright), 2021 SCC 32, the Supreme Court of Canada (SCC) unanimously dismissed an appeal of the decision of the Federal Court of Appeal (as previously reported by the E-TIPS® Newsletter here), upholding the finding that the tariff in question was not mandatory, nor enforceable, against York University (York) since York chose not to be bound by the license.

On August 4, 2021, the Ontario Superior Court of Justice (the Court) issued its decision in Del Giudice v Thompson, 2021 ONSC 5379, striking the plaintiffs’ Fresh as Amended Statement of Claim (the Claim) and dismissing its motion to certify a class action claim for data misappropriation and misuse stemming from the 2019 data breach of personal information from Capital One.

On July 15, 2021, in Symantec and Veritas Technologies v Det Norske Veritas, 2021 TMOB 143, the Trademarks Opposition Board (TMOB) of Canada rejected an opposition to the trademark application for DET NORSKE VERITAS for software based on confusion with the opponent’s VERITAS trademark for software.