E-TIPS

On January 19, 2022, the Federal Court of Canada (Court) in Janssen Inc. v. Pharmascience Inc., 2022 FC 62, found a summary trial proceeding to be appropriate in determining the issue of patent infringement in an action under the Patented Medicines (Notice of Compliance) Regulations (the Regulations). The Court also clarified the parties’ burden on a motion for summary trial.

On January 17, 2022, the BC Financial Services Authority (BCFSA) issued a Discussion Paper on the reporting obligations for financial institutions with respect to information security (IS) incidents. In the Discussion Paper, BCFSA is considering implementing new mandatory reporting obligations for financial institutions.

On February 2, 2022, the Government of Canada introduced Bill C-11, An Act to amend the Broadcasting Act and to make related and consequential amendments to other Acts (Bill C-11 or the Online Streaming Act), with the aim to support the next generation of Canadian artists and creators.

On January 17, 2022, in Cicada 137 LLC v Medjedovic, 2022 ONSC 369, the Ontario Superior Court of Justice (the Court) decided on a procedural issue in relation to a claim by the plaintiff, Cicada 137 LLC (Cicada), that the 19-year old defendant allegedly stole $15 million in cryptocurrency tokens. In the decision, the Court confirmed Cicada’s entitlement to inspect devices seized under an Anton Piller order despite delivery of a notice of motion by the defendant’s parents seeking to set aside the order.

On January 7, 2022, Health Canada issued a notice of consultation for proposed amendments to the Medical Device Regulations. According to the notice, the proposed amendments will deliver on commitments outlined in the Health and Biosciences Regulatory Review, which focuses on modernizing the existing regulatory frameworks for medical devices and drugs.

On January 26, 2022, the Canadian Radio-television and Telecommunications Commission (CRTC) announced that Dark Web marketplace Canadian HeadQuarters (CanadianHQ) was taken offline following the CRTC’s execution of warrants. The CRTC’s Chief Compliance and Enforcement Officer also announced penalties totalling $300,000 to four Canadians for their involvement in CanadianHQ.

On January 7, 2022, the Federal Court of Canada (the Court) in Kobold Corporation et al v NCS Multistage Inc, 2021 FC 1437, interpreted the defence of prior use in a patent infringement action for the first time since the 2018 amendments to Section 56 of the Patent Act.

On January 13, 2022, the Federal Court of Appeal of Canada (FCA) issued its decision in Pyrrha Design Inc. v Plum and Posey Inc., 2022 FCA 7, holding that the Federal Court (FC) did not err in its analysis on the issues of originality and infringement of jewellery designs.

On January 10, 2022, the Federal Court of Canada (the Court) in Mainstreet Equity Corp. v Canadian Mortgage Capital Corporation, 2022 FC 20, dismissed an action by Mainstreet Equity Corporation (Mainstreet) for expungement of a registered trademark and passing off.

On December 17, 2021, the Superior Court of Justice in Ontario (the Court) issued its decision in Wiseau Studio LLC v Harper, 2021 ONSC 8324 (Harper), declining to issue an anti-suit injunction.

On January 10, 2022, the Canadian Competition Bureau (the Bureau) and Health Canada’s Health Products and Food Branch (the HPFB) issued a joint notice to stakeholders on their continued collaboration to support Canadians’ access to safe, effective, and affordable pharmaceuticals and biologics.

Thank you for your readership over the last year and welcome to what we hope will be a better 2022!  In this year’s first issue of the E-TIPS® Newsletter, we will recap our most noteworthy reports from 2021, covering developments in intellectual property (IP) and information technology (IT) law under the following categories: (1) “Supreme Court of Canada Matters”, (2) “Legislative, Treaty and Policy Developments” (3) “Patents”, (4) “Trademarks”, (5) “Copyright”, (6) “Privacy”, and (7) “Legal Developments in Emerging Technology Around the World”.

On December 9, 2021, the latest annual report (the Report) from the Privacy Commissioner of Canada (the Commissioner) was tabled in Parliament. Among its recommendations, the Commissioner is calling on the Federal Government to adopt rights-based privacy laws that reflect Canada’s values and support responsible innovation.

On December 14, 2021, the BC Information and Privacy Commissioner, the Alberta Information and Privacy Commissioner, and the Québec Commission d’accès à l’information (collectively, the Privacy Commissioners) issued binding orders to Clearview AI to comply with recommendations made earlier this year following a joint investigation with the Office of the Privacy Commissioner of Canada (OPC) into the company’s use of facial recognition technology.

On December 6, 2021, the federal ministers of Defence, Public Safety, Emergency Preparedness and International Trade, Export Promotion, Small Business, and Economic Development (the Ministers) released an open letter to Canadians discussing the rise of ransomware attacks and offering guidance for organizations to curb this trend. Among the resources included in the letter, the Ministers refer to a Ransomware Playbook recently published by the Canadian Centre for Cyber Security (the Cyber Centre).

While the world welcomes 2022, the Canadian Intellectual Property Office (CIPO) is processing trademark applications filed in 2019. However, CIPO appears to have a plan to reduce the significant backlog of Canadian trademark applications awaiting first examination.

On December 6, 2021, the British Columbia Special Committee to Review the Personal Information Protection Act (the Committee) released its report entitled Modernizing British Columbia's Private Sector Privacy Law (the Report), making numerous recommendations to modernize British Columbia’s Personal Information Protection Act (PIPA).

On December 15, 2021, the Canadian Food Inspection Agency's (CFIA) Industry Labelling Tool guidance on natural claims was updated, introducing an outcome-based approach to the use of natural claims on food labels.

On November 19, 2021, the Federal Court of Canada (the Court) in Janssen Inc. et al. v Sandoz Canada Inc, 2021 FC 1265, clarified the scope of patent agent privilege under section 16.1 of the Patent Act.

On October 18, 2021, the Ontario Court of Appeal (the Court) issued its decision in Battiston v Microsoft Canada Inc., 2021 ONCA 727, finding that, the termination provisions in a stock award agreement were enforceable against a former employee.